Court ruling relieves payers from covering certain services with no cost to the patient

Should Preventive Services be Free?

Court ruling relieves payers from covering certain services with no cost to the patient.

Healthcare providers reacted harshly to a U.S. District Court judge’s deci-

sion in September that shakes the foundation of one of the most popular aspects of the Affordable Care Act (aka Obamacare), that is, the responsibility of non-grandfathered group or individual market health plans to make available about a hundred preventive services to members with zero co-pay.

“If today’s ruling stands, it will jeopardize health outcomes by creating financial barriers to screenings, counseling and preventive medications that improve our patients’ health,” tweeted Sterling Ransone Jr., MD, FAAFP, then-president of the American Academy of Family Physicians.

Among the zero-co-pay services threatened are blood pressure screenings, cancer screening, cholesterol screening, screening for sexually transmitted infections and fall-prevention exercise interventions for some adults over 65. They are among the so-called “essential health benefits” associated with plans available through the Health Insurance Marketplace.

Issued by U.S. District Judge Reed O’Connor in Texas on Sept. 7, the decision in Braidwood Management v. Becerra (formerly Kelley v. Becerra) struck down the requirement for zero-co-pay coverage for certain preventive health recommendations issued by the U.S. Preventive Services Task Force. The reason? The USPSTF members are not properly appointed under the U.S. Constitution’s Appointments Clause, the judge ruled.

He also ruled that insurers were not obliged to provide zero-co-pay coverage for pre-exposure prophylaxis (PrEP) for HIV prevention, on the grounds that the provision violates the rights of employers under the Religious Freedom Restoration Act. (A ruling regarding zero-co-pay contraceptive coverage was yet to be made at press time.)

The decision – which was under appeal – left untouched the provision of zero-co-pay preventive services recommended by the Advisory Committee on Immunization Practices (ACIP), as well as two sets of guidelines from the Health Resources and Services Administration (HRSA): Women’s Preventive Services Guidelines and the Bright Futures program for newborns through adolescents up to age 21.

The decision came just nine months after the Assistant Secretary for Planning and Evaluation (ASPE) – the principal advisor to the Secretary of the U.S. Department of Health and Human Services – issued a report making the case for essential health benefits. In January 2022, ASPE reported findings from its research, including: ʯ More than 150 million people – including 58 million women and 37 million children –can receive preventive services without cost-sharing under the

Affordable Care Act, along with approximately 20 million Medicaid

adult expansion enrollees and 61 million Medicare beneficiaries that can benefit from the ACA’s preventive services provisions. ʯ Evidence from studies examining the impact of the ACA indicate increased colon cancer screening, vaccinations, use of contraception, and chronic disease screening. ʯ Expanded access to recommended preventive services resulted from increases in the number of people covered through private health insurance and Medicaid expansion under the ACA.

What will payers do?

Insurers themselves were quiet about the District Court ruling. A spokesperson for AHIP – a national association of health plans – declined to comment to Repertoire on the Braidwood decision except to say that “AHIP has an extensive track record of support for the existing protections for preventive care.”

Meanwhile, a spokesperson for the Purchaser Business Group on Health said that “most large employers take advantage of the first-dollar coverage to promote health and well-being, retain employees, to promote equity and for longterm cost savings. This rule will not change things for our members, who are among the largest employers in the country.”

In a commentary published by the Commonwealth Fund, Timothy Jost, emeritus professor, Washington and Lee University School of Law, wrote that it is unlikely insurers or group health plans will drop coverage without cost sharing in 2023. “If a nationwide injunction is entered, however, it may well lead to various insurers and health plans offering different cost-sharing levels for services, which could make comparing plans more difficult,” he wrote. “It also might make it easier for insurers to try to avoid covering people with health needs by covering or avoiding coverage for particular services. This would undermine another key goal of the ACA – making sure people are covered regardless of preexisting conditions.”

Medical community not happy

In contrast to the payer community’s muted reaction to the ruling, the medical community was outspoken in its dissent. Six weeks before the decision became public, 61 medical organizations sounded the alarm, including the American Medical Association, American Academy of Family Physicians, American Academy of Pediatrics, American Association of Public Health Physicians, American College of Cardiology, American College of Gastroenterology, American College of Physicians and the American College of Radiology.

“We are extremely concerned that [the] case ... could significantly jeopardize the coverage of preventive health care services for millions of Americans with private health insurance and reverse positive trends in patient health achieved by the early detection and treatment of diseases and other medical conditions,” they wrote.

A spokesperson for the American College of Obstetricians and Gynecologists told Repertoire that they are “watching what happens with other covered services.”

Preventive services scorecard

The Sept. 7 District Court decision in Braidwood Management v. Becerra left some zero-co-pay preventive services intact, but others not.

Untouched are preventive services based on two programs of the Health Resources and Services Administration (HRSA): Women’s Preventive Services Guidelines, and Bright Futures (for newborns and adolescents up to age 21).

In addition, immunizations recommended by the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention must continue to be provided with no cost-sharing.

However, the ruling relieves payers from making available “A” and “B” recommendations of the U.S. Preventive Services Task Force (USPSTF) with zero co-pay. These include colorectal cancer screening; falls-prevention programs for elderly; screening for Hepatitis B and C viruses as well as HIV; and screening for hypertension, lung cancer and intimate partner violence.

For more information: ʯ ACIP recommendations can be found at www.cdc.gov/vaccines/hcp/acip-recs/index.html. ʯ Women’s Preventive Services Guidelines of HRSA can be found at www.hrsa.gov/womens-guidelines. ʯ Bright Futures guidelines are at mchb.hrsa.gov/programs-impact/bright-futures. ʯ “A” and “B” recommendations of USPSTF can be found at www.uspreventiveservicestaskforce.org/uspstf/ recommendation-topics/uspstf-a-and-b-recommendations.