Federal Judge Strikes Down ACA’s Coverage Mandate for PrEP Drugs

by Leslie Small   A federal judge on Sept. 7 ruled that the Affordable Care Act’s requirement that individual and group health plans must fully cover pre-exposure prophylaxis (PrEP) medications to prevent HIV violates the religious freedom of objecting employers. The ruling is not likely the final salvo in a case that challenged the ACA’s entire preventive service coverage mandate, but it did spark outcry from one advocacy group representing HIV-positive patients.     Judge rules PrEP coverage violates religious freedom  The case in question, now known as Braidwood Management Inc., et al  v. Becerra, argues that Section 2713 of the ACA — which mandates coverage of preventive services recommended by the U.S. Preventive Services Task Force (USPSTF), the Advisory Committee on Immunization Practices and the Health Resources and Services Administration — is unconstitutional.  In his ruling on a motion for summary judgment, Justice Reed O’Connor sided with the plaintiffs on some of their claims. He agreed that the ACA’s provision requiring health plans to cover all USPSTF-recommended services is indeed unconstitutional, as the policymaking power they wield requires them to be appointed by the president and confirmed by the Senate — yet they are not.   O’Connor also agreed with the claim that the PrEP coverage requirement violates the Religious Freedom Restoration Act of 1993 by forcing employer plan sponsors that object on religious grounds to finance drugs that “encourage and facilitate homosexual behavior.”  Ruling sparks outrage  In a statement released after O’Connor’s ruling came down, Carl Schmid, executive director of the HIV+Hepatitis Policy Institute, slammed the decision.   “Preventive services covered by private insurance plans without cost-sharing, such as HIV testing, hepatitis B and C testing, and PrEP, are all critical and well-established public health preventive services that must continue,” Schmid wrote. “To single out PrEP, which are FDA approved drugs that effectively prevent HIV, and conclude that its coverage violates the religious freedom of certain individuals, is plain wrong, highly discriminatory, and impedes the public health of our nation.” Schmid continued: “PrEP is not just for gay men, but for anyone who may be at risk of HIV.”   Schmid tells AIS Health that his organization is currently “not focused on” how private health plans would respond if O’Connor’s ruling regarding PrEP coverage is upheld on appeal. He points out that some state laws require first-dollar coverage of PrEP drugs, although “most likely the states where it would not be covered are the ones where HIV is increasing most.”   Ultimately, “I would hope that insurers would continue to cover [PrEP] without cost sharing,” he adds. “It is cheaper than paying for HIV treatment drugs for the rest of one’s life.”

From Radar on Drug Benefits   Subscribers may read the in-depth article online. Learn more about subscribing to AIS Health's publications.