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A federal judge in Texas on
March 30 struck down the Affordable Care Act’s requirement that health plans
cover, without cost sharing, certain preventive services recommended by
the U.S. Preventive Services Task Force (USPTF) — such as preexposure prophylaxis (PrEP) for HIV and
screenings for HIV, cancers, suicide risk, and hepatitis C. Policy experts
say insurers probably won’t rush to stop covering most affected services, but
if the ruling is upheld, they could impose potentially burdensome
cost-sharing on PrEP drugs in particular.
Health plans might
reintroduce cost sharing
- In his ruling, Justice Reed
O’Connor found that the policymaking power USPSTF wields would require
the task force to be appointed by the president and confirmed by the
Senate — but the USPSTF is appointed by federal civil servants, not the
president. In O'Connor's view, that means issuing plan requirements
based on USPSTF recommendations is unconstitutional.
- O’Connor also
found that the ACA’s PrEP coverage requirement “substantially burdens”
employer plan sponsors with conservative religious views. Thus, O’Connor
ruled that the PrEP coverage requirement violates the Religious Freedom
Restoration Act of 1993.
- However, health
plans may elect to continue covering any or all of the affected
services, and they could do so without introducing cost sharing. Larry
Levitt, executive vice president for health policy at KFF, said during a
March 30 virtual press conference explaining the ruling’s policy
implications that plans are unlikely to drop
coverage of USPSTF-recommended services quickly or
entirely.
- “In many cases,
insurance contracts are in place for the calendar year. So while the
ruling takes effect immediately, nationwide, coverage will not
necessarily change immediately,” Levitt said. There’s a “distinction
between whether insurers offer these preventive services, and what the
cost sharing for that coverage is....My view is that insurers will
generally continue to cover these services, but may, in some cases,
impose cost sharing — and in cases like PrEP, potentially substantial
cost sharing.”
Supreme Court could take
up case
- Some other
preventive services will not be affected by the ruling, meaning health
plans will have to cover them without cost sharing as before: O’Connor's
ruling does not apply to services recommended by the Advisory Committee
on Immunization Practices (ACIP), and recommended services for infants,
children and women that are outlined in guidelines from the Health
Resources and Services Administration (HRSA). However, according to
Laurie Sobel, an attorney and associate director for women’s health
policy at KFF, higher courts may have a different view of ACIP and
HRSA’s authority.
- Sobel said she
anticipates that the Biden administration will “immediately ask for a
stay” that prevents O’Connor’s ruling from taking effect while the
decision is appealed.
- Practitioners
and patient advocates, meanwhile, denounced the ruling.
- Jack Resneck,
Jr., M.D., president of the American Medical Association, said in a
statement that he was “alarmed” by the “deeply flawed court ruling,”
saying that it “jeopardizes access to preventive health services
guaranteed under federal health reform, including drugs preventing HIV
transmission.”
- “Providing
insurance coverage for screenings and interventions that prevent disease
saves lives – period,” he added. “The burden of losing this first-dollar
coverage will fall disproportionately on low-income and historically
marginalized communities that are least able to afford it and are often
at high risk of developing preventable medical conditions.
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