Several ACA Preventive Services “Up for Grabs” Following Federal Ruling

A federal judge in Texas ruled Thursday that some mandates under the Affordable Care Act (ACA) cannot be enforced across the United States.

Under the ruling by US District Judge Reed O’Connor, insurers are no longer required to provide preventative services recommended by the US Preventive Services Task Force (USPSTF) at no cost. His initial ruling in September 2022 focused on coverage of HIV pre-exposure prophylaxis (PrEP). However, the latest ruling expands across other services, including some cancer, heart, lung, and sexually transmitted infection screenings and preventative tools, as well as tobacco cessation programs.

Only hours after the ruling, Kaiser Family Foundation (KFF) held a virtual media briefing about its implications.

Larry Levitt, executive vice president for health policy at KFF, first clarified that the ruling does not completely and immediately wipe out all preventive services coverage under the ACA, and only applies to updates or new recommendations made by the USPSTF since March 2010, when the ACA was enacted.

It also does not overturn women's health services recommended by the Health Resources and Services Administration (HRSA) or vaccines recommended by the Advisory Committee on Immunization Practices (ACIP). However, the plaintiffs in the Braidwood Management v Becerra case had asked those be struck down as well.

Additionally, many insurance contracts are in place for 2023. Because of this, Levitt noted that, while the ruling takes effect immediately, nationwide coverage will not necessarily change immediately. Insurers may also choose to keep covering these services, but increase the out-of-pocket (OOP) costs for patients.

“It's likely that the administration will immediately appeal this to the Fifth Circuit and will be asking for a stay, so we'll have to see how the litigation plays out to see when anything could take effect,” added Laurie Sobel, associate director of women's health policy at KFF.

Which Screenings and Preventative Services Are Affected?

Screenings such as mammography and colorectal and cervical cancer screenings will still be covered because they were recommended by the USPSTF prior to March 2010. However, lung cancer, skin cancer, and other newer screenings will potentially have cost sharing in the future. These screenings are usually conducted in a clinical visit and involve a CT scan, which can be costly if patients have to pay cost sharing for these screenings.

HIV PrEP, statins, and preventative chemotherapy for individuals at high risk for breast cancer were also recommended after March 2010, putting them at risk for cost sharing for patients.

Lindsey Dawson, associate director of HIV policy and director of LGBTQ health policy at KFF, said it is unlikely that all plans will stop covering PrEP. While some may opt to drop coverage, she anticipates that we will see more cost sharing for this service, as well as for ancillary services such as lab and provider visits.

She also expanded on the specific OOP costs for PrEP. The generic for PrEP is currently about $30 per month or $360 per year, though branded products can be over $20,000 per year, and the cash price for lab and provider visits are estimated at $2,000 per year. Some of the labs required for PrEP also have a recommendation from before March 2010, so these lab visits could possibly continue to be covered.

Possible Next Moves at State and Federal Levels

While states are limited in what they can do to in terms of preserving coverage for preventative services affected by this ruling, they can regulate private insurance. However, self-insured employer plans—which cover most individuals with private insurance—cannot be touched by by state regulations. While there will still be major coverage gaps, Levitt believes states can and will move to fill in some of the gaps that this ruling leaves.

O’Connor has a history of rulings to overturn the ACA in whole or in part which have been reversed by either the Fifth Circuit or Supreme Court.

When asked about possibilities in the appellate process of this case, Sobel said both sides of the case are appealing, and that “nobody is happy with this decision.”

“All of the preventive services are kind of up for grabs as we go through the appeal process to the Fifth Circuit and to the Supreme Court,” she said.

AHIP also released a statement on the Braidwood v. Becerra decision.

“Every American deserves access to high-quality affordable coverage and health care, including affordable access to preventive care and services that help avoid illnesses and other health problems,” said Matt Eyles, president and CEO of AHIP. “As we review the decision and its potential impact with regard to the preventive services recommended by the United States Preventive Services Task Force, we want to be clear: Americans should have peace of mind there will be no immediate disruption in care or coverage. We fully expect that this matter will continue on appeal, and we await the federal government’s next steps in the litigation, as well as any guidance from relevant federal agencies.”