A federal judge’s decision in Texas has called into question whether millions of insured Americans will continue to receive certain preventive medical services, such as cancer screenings and drugs that protect people from infection with HIV, without making co-payments.
This is the latest legal battle over the Affordable Care Act, and Wednesday’s decision will almost certainly be appealed.
A key part of Judge Reed O’Connor’s decision of the U.S. District Court for the Northern District of Texas indicates that a manner in which preventive services are selected for free coverage is unconstitutional. Another part of his ruling says the requirement that HIV prevention drug therapy be covered at no cost to patients violates the religious freedom of an employer who is a plaintiff in the case.
It is not yet clear what all this means for insured patients. Much depends on what happens next.
O’Connor is likely familiar to people who have followed the legal battles over the ACA, which became law in 2010. In 2018, he ruled that the entire ACA was unconstitutional. For the latter case, he asked both sides to outline their positions on what should follow in documents filed Sept. 16.
After that, the judge can specify to what extent he will enforce the decision. O’Connor, whose 2018 ruling was later overturned by the U.S. Supreme Court, has a few choices. He could say the decision only affects conservative plaintiffs who filed the lawsuit, expand it to all Texans, or expand it to all policyholders in the United States. He could also temporarily block the decision while the appeals, which are expected, are considered.
“It’s pretty significant if her decision stands,” said Katie Keith, director of health policy and legal initiative at the O’Neill Institute for National and Global Health Law at Georgetown University Law. Center.
We’ve asked experts to answer some questions about what the ruling might mean.
What does the ACA require for preventive care?
Under a provision of the ACA that came into effect at the end of 2010, many services considered preventative are covered without a patient co-payment or deductible.
A a recent estimate from the US Department of Health and Human Services found that more than 150 million insured people had access to this free care in 2020.
The federal government currently lists 22 major categories of coverage for adults, another 27 for women, and 29 for children.
To appear on these lists, vaccines, screening tests, drugs and services must have been recommended by one of the three groups of medical experts. But the decision in the Texas case centers on recommendations from just one group: the U.S. Preventive Services Task Force, a nongovernmental advisory group whose volunteer experts weigh the pros and cons of preventive testing and treatment. .
Procedures that achieve an “A” or “B” recommendation from the Task Force should be covered at no cost to the insured patient and include a variety of cancer screenings, such as colonoscopies and mammograms; cholesterol medications for some patients; and screenings for diabetes, depression and sexually transmitted diseases.
Why didn’t the ACA just spell out what should be covered for free?
“As a policymaker, you don’t want to make lists in laws,” said Christopher Condeluci, a health policy lawyer who served as a tax and benefits adviser to the U.S. Senate Finance Committee. when writing the ACA. One reason, he said, is that if Congress wrote its own lists, lawmakers would be “under pressure every year to come by groups wanting to be on that list.”
Giving it to an independent body theoretically insulated those 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 recommendations to compel insurers or employers to offer the services free violates the Constitution.
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 nominated by the president and confirmed by the Senate.
The decision does not affect recommendations made by the other two groups of medical experts: the Advisory Committee on Immunization Practices, which makes recommendations to the Centers for Disease Control and Prevention on vaccinations, and the Resource Administration and of Health Services, part of the Department of Health and Human Services which has established free coverage rules for services primarily for infants, children and women, including birth control guidelines.
Many of the task force’s recommendations are uncontroversial, but a few have drawn outcry from some employers, including the plaintiffs in the lawsuit. They argue that they shouldn’t be forced to pay for services or treatments they don’t agree with, such as HIV prevention drugs.
Part of O’Connor’s decision addressed this issue separately, consistent with the position taken by plaintiff Braidwood Management, a for-profit Christian company owned by Steven Hotze, a conservative activist who brought other challenges to the ACA and coronavirus mask mandates. Hotze challenged the requirement to provide free coverage for pre-exposure prophylaxis (PrEP) drugs that prevent HIV. He said it went against his religious beliefs, including making him “complicit in facilitating homosexual behavior, drug use and sexual activity outside of marriage between a man and a woman.” , according to the decision.
O’Connor said forcing Braidwood to provide such free care in his self-funded insurance plan violates the federal Religious Freedom Restoration Act.
What about contraceptives, vaccines and other non-co-pay items that are covered by recommendations from other groups not covered by the judge’s decision?
The judge said the other two groups’ recommendations or demands did not violate the Constitution, but he asked both parties to discuss the ACA’s contraceptive mandate in their next filings. Currently, the law requires that most forms of birth control be offered to registrants without copayments or deductibles, although the courts have provided exceptions for religious employers and “closed businesses” whose owners have strong religious objections.
The case will likely be appealed to the 5th US Circuit Court of Appeals.
“We’ll have a conservative court looking at this,” said Sabrina Corlette, co-director of the Center on Health Insurance Reforms at Georgetown University. “So I wouldn’t say vaccines and women’s health items are totally safe.”
Does this mean that my mammogram or my HIV treatment will no longer be covered without a co-payment?
Experts say the ruling is unlikely to have an immediate effect, in part because appeals are likely and could drag on for 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 arise as to whether they should make any changes for 2023,” said Keith.
Widespread changes next year are unlikely, however, as many insurers and employers have already established their coverage rules and set their rates. And many employers, who supported the idea of allowing the task force to make the recommendations when drafting the ACA, may not make substantive changes even if the decision is upheld on appeal.
“I just don’t see employers for the most part charging copays for things they believe are preventative in nature,” said James Gelfand, chair of the ERISA industry committee, which represents large self-insured employers. .
For the most part, Gelfand said, employers broadly agree on preventive services, although he noted that coverage of each type or brand of contraceptive without patient participation is controversial and some employers cited objections. coverage of certain services, including HIV preventive medication.
Beyond religious objections, future decisions could have financial consequences. As insurers or employers look for ways to cut costs, they could reinstate co-payments or deductibles for some of the more expensive preventive services, such as colonoscopies or HIV medications.
“With some of the more expensive items, we might see some plans start cost-sharing,” Corlette said.
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