A federal judge’s ruling in Texas called into question whether millions of insured Americans would continue to receive some preventive health services, such as cancer screenings and drugs that protect people from HIV infection, without co-pays.
This is the latest legal battle for the Affordable Care Act, and last Wednesday’s decision is almost certain to be appealed.
A key part of the solution by Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas says one of the ways preventive services are selected for free coverage is unconstitutional. Another part of his ruling said that requiring HIV prevention drug therapy to be covered at no cost to patients violates the religious freedom of an employer who is the plaintiff in the case.
It’s not yet clear what all this means for health-insured patients. A lot depends on what happens next.
O’Connor is probably familiar to people who followed the legal battles surrounding the ACA, which became law in 2010. In 2018, he ruled that the entire ACA was unconstitutional. For this latest case, he has asked both sides to outline their positions on what should come next in documents due on September 16.
The judge can then clarify how broadly he will apply the ruling. O’Connor, whose 2018 ruling was later overturned by the US Supreme Court, has some options. He could say the ruling affects only the conservative plaintiffs who brought the suit, extend it to all Texans, or extend it to every insured person in the US. It can also temporarily block the decision while any pending appeals are considered.
“It’s pretty important if his decision stands,” he said Katie Keithdirector of the Health Policy and Legal Initiative at the O’Neill Institute for National and Global Health Law at Georgetown University Law Center.
We asked experts to weigh in on some questions about what the decision could mean.
What does the ACA require for preventive care?
Under a provision of the ACA that went into effect in late 2010, many services considered preventive are covered with no patient co-payment or deductible.
The federal government currently listings 22 broad coverage categories for adults, an additional 27 for women and 29 for children.
To be on these lists, vaccines, screening tests, drugs and services must have been recommended by one of three groups of medical experts. But the decision in the Texas case was based on recommendations from just one group: US Preventive Services Task Forcea nongovernmental advisory group whose volunteer experts weigh the pros and cons of screening tests and preventive treatments.
Procedures they receive Recommendation “A” or “B”. by the task force should be covered at no cost to the insured patient and include various cancer screenings such as colonoscopies and mammograms; cholesterol medications for some patients; and reviews of diabetes, depression, and sexually transmitted diseases.
Why didn’t the ACA just say what should be covered for free?
“As a policymaker, you don’t want to put lists in the statute,” said Christopher Condelucci, a health policy attorney who served as tax and benefit counsel to the U.S. Senate Finance Committee during the ACA’s drafting. One reason, he said, is that if Congress writes its own lists, lawmakers will be “lobbied every year after year by groups that want to get on that list.”
Putting it in an independent body theoretically insulates such decisions from political influence and lobbying, he and other experts said.
What did the judge say?
It’s complicated, but the judge basically said that using the task force’s recommendations to force insurers or employers to offer the free services violates the constitution.
O’Connor wrote that members of the task force, which is convened by a federal health agency, are actually “employees of the United States” and therefore must be appointed by the president and confirmed by the Senate.
The decision does not affect the recommendations made by the other two groups of medical experts: Advisory Committee on Immunization Practiceswhich makes recommendations to the Centers for Disease Control and Prevention about vaccinations and the Health Resources and Services Administration, part of the Department of Health and Human Services, which has set free coverage rules for services aimed primarily at infants, children and women, including birth control directives.
Many of the task force’s recommendations are not controversial, but some of them have drawn the ire of some employers, including the plaintiffs in the case. They argue that they should not be forced to pay for services or treatment they do not agree with, such as HIV prevention drugs.
Part of O’Connor’s decision addressed that issue separately, agreeing with the position taken by plaintiff Braidwood Management, a for-profit Christian corporation owned by Stephen Hotze, a conservative activist who has mounted other challenges to the ACA and mandatory masks for coronavirus. Hotze challenged the requirement to provide free coverage of pre-exposure prophylaxis (PrEP) drugs that prevent HIV. He said it went against his religious beliefs, including making him “complicit in facilitating homosexual conduct, drug use and sexual activity outside of marriage between one man and one woman,” according to the ruling.
O’Connor said forcing Braidwood to provide such free care in its self-funded insurance plan violates the federal Religious Freedom Restoration Act.
What about contraceptives, vaccines, and other non-payable items that are covered by recommendations from other groups not targeted by the judge’s decision?
The judge said the recommendations or requirements from the other two groups did not violate the Constitution, but he asked both sides to discuss the ACA’s contraception mandate in their upcoming filings. The law currently requires most forms of birth control to be offered to enrollees without co-pay or deductible, although courts have made exceptions for religious employers and “closely held businesses” whose owners have strong religious objections.
The case is likely to be appealed to the 5th US Circuit Court of Appeals.
“We’re going to have a conservative court looking at this,” said Sabrina Corlett, co-director of the Center for Health Insurance Reform at Georgetown University. “So I wouldn’t say that vaccines and women’s health products are completely safe.”
Does this mean that my mammogram or my HIV treatment will no longer be covered without a co-pay?
Experts say the decision likely won’t have an immediate effect, in part because appeals are likely and could take months or even years.
Still, if the decision is upheld by an appeals court or not stayed pending appeal, “the question for insurers and employers will be whether they need to make changes for 2023,” Keith said.
Widespread changes next year are unlikely, however, as many insurers and employers have already drawn up their coverage rules and set their rates. And many employers who supported allowing the task force to make the recommendations when the ACA was being drafted may not make substantive changes even if the decision is upheld on appeal.
“I just don’t see employers for the most part really charging co-pays for things that they think are actually preventative in nature,” said James Gelfandpresident of the ERISA Industry Committee, which represents large, self-insured employers.
For the most part, Gelfand said, employers are in broad agreement about preventive services, although he noted that covering any type or brand of contraceptive without a patient co-pay is controversial and that some employers have cited religious objections to covering some services, including HIV prevention drugs.
Religious objections aside, future decisions may have financial implications. As insurers or employers look for ways to cut costs, they may reimburse copays or deductibles for some of the more expensive preventive services, such as colonoscopies or HIV drugs.
“With some of the higher ticket items, we may see some plans to start cost sharing,” Corlett 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 three major operational programs in the KFF (Kaiser Family Foundation). KFF is a charitable, non-profit organization providing information on health issues to the nation.