A federal judge on Thursday struck down part of the Affordable Care Act that makes preventative services, such as some cancer screenings, free for enrollees, a move that could affect health insurance policyholders nationwide.
The ruling by the U.S. District Court for the Northern District of Texas could open the door for insurers or employers to reinstate copayments for some of these preventative services, though many may be unwilling or unable to do so, at least immediately.
The decision to U.S. District Judge Reed O’Connor relies on a September judgment in which he also said the ACA’s requirement that employers must cover pre-exposure prophylaxis treatment to prevent HIV violates the Religious Freedom Restoration Act.
His decision is the latest shot in the legal battle over the ACA. “Previous cases threatened the very existence of the law and fundamental protections. This decision does not do that,” said Larry Levitt, KFF executive vice president for health policy. But “it reverses a part of the law, although very popular, which is used by many people”.
There will almost certainly be appeals, perhaps from both sides: the conservative groups who brought the case and had hoped the decision would be broader, and the Biden administration, which supports the ACA.
“The stakes are really high” because the final decision could affect millions of Americans, said Andrew TwinamatsikoAssociate Director of the Health Policy and Law Initiative at the O’Neill Institute at Georgetown University.
“Americans should have peace of mind that there will be no immediate interruption to healthcare coverage,” said Matt EyesChairman and CEO of AHIP, the health insurance industry’s leading lobby group.
Now the Justice Department must decide whether to seek an emergency order putting the decision on hold pending the appeal process.
The decision could affect copayment-free screenings and similar preventative services that most insured Americans have as part of their health plans. But consumers may see little impact initially.
“The word prevention appears several hundred times in the ACA,” said Timothee Jost, professor of law emeritus at the Washington and Lee University School of Law, who closely follows the ACA. “Part of the idea of the ACA was that we thought we were trying to prevent disease or at least identify it earlier when it’s more curable.”
Making this care free for registrants was a way to encourage disease screening.
But O’Connor’s decision said one of the ways these free services are selected — by the US Task Force on Preventive Services, a nongovernmental advisory group — is unconstitutional. In his September notice, O’Connor wrote that the members of the task force, which is convened by a federal health agency, are in fact “officers of the United States” and should therefore be appointed by the president and confirmed by the Senate.
The judge said his ruling specifically did not apply to non-co-pay contraceptives or vaccines, which are screened by other agencies, although the conservative groups that have brought the case have also called for their inclusion.
Mammograms are among those preventative services that may be in a special category because they’re also recommended by one of those other agencies, so KFF experts say they’ll likely continue to be covered without cost sharing. with the patient, even with this decision.
O’Connor issued a summary judgment in the case in September. At the time, the decision only applied to employers who filed a complaint.
Thursday’s decision extends that to all employers and insurers nationwide.
For now, consumers, especially those who buy their own coverage in the ACA marketplace, will likely continue to receive free preventative care in many plans, experts said.
Indeed, most of these plans operate on the calendar year, and enrollees have essentially signed contracts “that will cover these services until the end of the year,” Jost said.
Still, depending on the outcome of the appeals, over time each insurer will likely weigh the pros and cons of reinstating this cost-sharing with patients.
They will start making “business decisions either to continue to cover at no cost or to impose cost sharing,” Twinamatsiko told Georgetown.
In employment-based plans, through which most insured Americans get their coverage, the initial impact may also be mitigated.
Eighty percent of human resources directors said they would not reinstate cost sharing for preventive care, according to a recent unscientific survey of 25 human resources directors at companies with a total of around 600,000 workers.
This could upset employees, noted Paul Fronstin, director of health benefits research at the Employee Benefits Research Institute, who conducted the survey. And fully covering registrants’ preventative care, without requiring a co-payment, is relatively inexpensive. In a separate study, he found that even one of the most expensive preventative care treatments — the nearly $14,000 a year PrEP to prevent HIV — adds only 0.4% to employers’ annual healthcare spending. health. Even if an employer were to add a 20% co-pay for the worker, it would reduce overall expenses by less than a tenth of 1%, the study found.
Apart from a few employers who might want to restrict free coverage on religious grounds for treatments like PrEP, James Gelfand said he doubted many companies would restore quotas. Gelfand is president of the ERISA Industry Committeewhich represents large self-insured employers.
Services approved by the U.S. Preventive Services Task Force were selected because they work and “can prevent more acute conditions later,” which are much more expensive, Gelfand said.
While most of the task force’s recommendations are uncontroversial, a few have drawn outcry from some employers, including the parties to the lawsuit, who argue they shouldn’t be forced to pay for services or treatments they disagree with, such as HIV prevention drugs. .
O’Connor’s decision upheld the claim of plaintiff Braidwood Management, a for-profit Christian company owned by Steven Hotzewhich opposes providing free PrEP to its 70 employees, saying it goes against its religious beliefs.
The judge agreed, saying forcing Braidwood to provide such free care in his self-insurance plan violates the Religious Freedom Restoration Act.
The decision eliminating non-cost-sharing preventive coverage for PrEP on religious grounds shows “clear bias,” said Carl Schmid, executive director of the HIV and Hepatitis Policy Institute.
Some states have passed laws that will continue to require ACA-mandated preventive services coverage even if federal protections are eliminated.
At least 15 states have laws requiring insurers who sell individual plans to cover preventive services required by the ACA, according to an analysis by researchers at the Georgetown Center for Health Insurance Reform.
Like the ACA, these state laws mandate coverage at no cost to consumers.
In some states, workers in state-regulated group insurance plans — called “fully insured” plans — also have these protections, the analysis found.
These state laws do not apply to 65% of workers covered nationally whose employers pay their healthcare claims directly rather than purchasing insurance for this purpose.
Overall, preventive services can lead to better outcomes, said Lisa Lacasse, president of American Cancer Society Cancer Action Network.
Millions of people get screened each year for breast, colorectal, lung or cervical cancer, she said, adding that there is evidence to show that any type of copayment or openness deters people from undergoing such tests.
Lacasse said she hopes insurers continue not to charge copayments because such a drastic change mid-year would be disruptive and enrollees would need to continue to get preventative care.
“If you have a screening, you should go ahead,” she said.
KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism on health issues. Along with policy analysis and polling, KHN is one of the three main operating programs of KFF (Kaiser Family Foundation). KFF is an endowed non-profit organization providing information on health issues to the nation.