Supreme Court Set to Hear No-Cost PrEP, Preventive Care Controversy

Earlier this month, the Supreme Court’s decision to revisit the legality of mandated health insurance coverage for preexposure prophylaxis (PrEP) and other preventive care under the Affordable Care Act (ACA) cast uncertainty over future access to these preventive services.¹

The constitutionality of no-cost PrEP coverage awaits a decision from the Supreme Court | image credit: bbourdages - stock.adobe.com

The ACA has been effective in improving patient access to necessary medical services, such as preventive care. In particular, Section 1713 of the ACA prevented private health care plans from requiring coinsurance, co-payments, or deductibles for an array of preventive treatments; however, the 2023 case Braidwood Management Inc. vs Becerra argued the rule to be unconstitutional and in violation of individual religious beliefs or objections in some instances. Under a 2023 district court ruling, insurers were no longer required to provide no-cost preventive care—but only for services that the US Preventative Services Task Force (USPSTF) recommended after March 2010, which includes PrEP.² The no-cost mandate means no required deductibles, co-pays, or coinsurance, otherwise referred to as cost sharing. In May 2023, the Fifth Circuit Court of Appeals enacted an administrative stay of the district court’s ruling. As a result, temporarily, the mandates for preventive services to be provided sans cost sharing have remained in effect.³

As the Supreme Court is set to confer on this matter, it is important to note that the constitutionality of the ACA’s structure has not been challenged. Rather, the Department of Justice ordered an appeal to decide whether: “(1) the USPSTF members are ‘inferior officers’ of the United States, and therefore, their appointments are constitutional and (2) the District Court erred when it failed to sever the allegedly unconstitutional provision.”⁴

Challenging the legitimacy of these appointees has triggered discussions about which aspects of preventive care—if any—should continue to be provided at no out-of-pocket cost. As reported by Groom, if the Supreme Court rules that members of USPSTF were not appointed properly, it will still be unlikely for these changes to take immediate effect, as the terms for covering preventive services can differ between states: “Those contractual terms likely cannot be unilaterally and immediately changed, though depending on the state and the contractual language, it is possible that some changes to benefits mid-year may be possible.”⁴

As for self-funded group health plans, granting their participants a notice in advance of these changes may be worthwhile and necessary, with Groom writing, “Both plans and issuers could balance the effectiveness of early intervention (and possible cost-savings in the future) with immediate costs of waiving cost-sharing for these services.”

According to a 2023 KFF poll, although the ACA has garnered largely Democratic partisan support, respondents from both sides of the aisle have viewed the elimination of out-of-pocket costs for preventive care favorably. Should the PrEP coverage requirement be discontinued, over 80% of adults reported concerns about reducing new HIV cases, and nearly the same amount expressed beliefs that HIV/AIDS is a serious issue throughout the US, demonstrating how the court’s ruling could be at odds with expressed public health interests. Should the Supreme Court decision align with the district court in Braidwood Management Inc. vs Becerra, additional services including certain vaccinations and pediatric and women’s health screenings and health care could be impacted.^5,6

Notable upticks in PrEP usage have been documented since 2017. In 2022, 36% of individuals who could benefit from a prescription received one, compared with 23% in 2019. However, access remains a pertinent issue in this area and prescription disparities have only grown larger in recent years in the US. For example, the rates of White individuals receiving PrEP has risen by 34% compared with 5% in Black individuals. As emphasized by amfAR, PrEP coverage has been available through most insurance programs or Medicaid plans; however, longer reimbursements have placed extra burden on these process and stifled patient access in some cases.⁷ The looming Supreme Court decision could potentially add another barrier for those benefiting from this medication.

References

1. Reichmann K. Protections for PrEP get Supreme Court review. Courthouse News Service. January 10, 2025. Accessed January 29, 2025. https://www.courthousenews.com/protections-for-prep-get-supreme-court-review/

2. Johns M, Rosenthal J. How the Affordable Care Act improved access to preventative health services. July 10, 2024. Accessed January 29, 2025. https://www.americanprogress.org/article/how-the-affordable-care-act-improved-access-to-preventive-health-services/

3. Sobel L, Ranjii U, Pestaina K, Dawson L, Cubanski J. Explaining litigation challenging the ACA’s preventative services requirements: Braidwood Management Inc. v. Becerra. KFF. May 15, 2023. Accessed January 30, 2025. https://www.kff.org/womens-health-policy/issue-brief/explaining-litigation-challenging-the-acas-preventive-services-requirements-braidwood-management-inc-v-becerra/

4. Supreme Court to decide legality of ACA’s preventative services mandate. Groom. January 22, 2025. Accessed January 30, 2025. https://www.groom.com/resources/supreme-court-to-decide-legality-of-acas-preventive-services-mandate/

5. Kearney A, Sparks G, Kirzinger A, Presiado M, Brodie M. KFF health tracking poll May 2023: health care in the 2024 election and in the courts. May 26, 2023. Accessed January 29, 2025. https://www.kff.org/report-section/kff-tracking-poll-may-2023-health-care-in-the-2024-election-and-in-the-courts-prep-and-preventive-care/

6. Staman JA. Preventive services access on the docket in Braidwood v. Becerra. Congressional Research Service. September 12, 2023. Accessed January 30, 2025. https://crsreports.congress.gov/product/pdf/LSB/LSB11040

7. Kessler R. PrEP usage in the U.S. hits historic highs, but disparities persist. amfAR. October 27, 2023. Accessed January 30, 2025. https://www.amfar.org/news/prep-usage-in-u-s-hits-historic-highs-but-disparities-persist/