March 31, 2023 – Health experts around the country are scrambling to determine which preventive services may no longer be free to patients after Thursday’s ruling by a federal court judge that struck down part of Affordable Care Act.
U.S. District Court Judge Reed O’Connor ruled that the ACA’s prevention mandate, which provides screenings for multiple conditions from lung cancer to sexually transmitted infections with no out-of-pocket costs, violates the plaintiffs' religious rights and is unconstitutional.
Meanwhile, health experts were researching exactly how many preventive services might be affected and said no changes would likely occur immediately. The Department of Justice on Friday filed a notice that it plans to appeal.
Numerous health and other organizations reacted strongly against the ruling while acknowledging that no changes are expected immediately.
In a statement, the American Academy of Family Physicians said it is “alarmed and disappointed” by the ruling and said it will “create insurmountable barriers to screenings, counseling, and preventive medications that improve patient and population health, including pre-exposure prophylaxis (PrEP) medications for the prevention of HIV.”
Margaret A. Murray, president of the Association for Community Affiliated Plans, which represents 79 health plans that provide coverage to more than 25 million people, said in a statement that the decision, if implemented, would erode access to an entire range of preventive health services. “Families deserve better than having bedrock protections of the health reform law invalidated with a two-page ruling.”
The O’Neill Institute for National and Global Health Law at Georgetown University made clear the ruling could cause important preventive services to skyrocket in cost.
“Unless it is stayed, the decision will make preventive health services unaffordable for millions of Americans and limit their ability to get early treatment for diseases such as colorectal and lung cancer, diabetes, and depression, to name a few,” the group said in a statement.
Legal experts said that a stay in the case, known as Braidwood v. Becerra, could be granted until the appeal is decided so that services remain in place.
“It could even go to the Supreme Court,” said Cynthia Cox, vice president and director of the Program on the Affordable Care Act for the Kaiser Family Foundation, a nonprofit focused on national health issues.
What Care Is Affected?
Under the ACA, preventive services that have an A or B grade from the U.S. Preventive Services Task Force, a volunteer, independent panel of experts, are covered with no out-of-pocket costs. Over the years, the USPSTF has given 53 A or B grades covering 46 recommendations.
The ruling contends that the preventive services mandate is unconstitutional because it violates the U.S. Constitution’s Appointments Clause. That clause requires that such decisions be made by a federal official appointed by the president or a department head. The task force is an independent panel of volunteer experts who comb through evidence before making its recommendations.
According to the court ruling, only those recommendations issued in 2010 or later, when the ACA went into effect, would be struck down. While the USPSTF website does not have a list of how many A or B grades have been issued (or upgraded to A or B) since 2010, Cox estimates that about a dozen would potentially be scrapped.
At a Kaiser Family Foundation seminar on the ruling Thursday, Cox and other experts speculated that some of the newer recommendations, such as lung cancer and skin cancer screenings, as well as a recommendation to provide cholesterol-lowering statins at no cost for at-risk people, might no longer be entirely free.
However, “I think it’s very likely insurers will still cover” those programs, said Larry Levitt, Kaiser’s executive vice president for health policy, but cost-sharing with a copay could be added to certain services.
“This ruling does not affect vaccines,” Cox said. Recommendations for vaccines come from the CDC’s Advisory Committee on Immunization Practices. Pregnancy care is also not likely to be affected, Cox and other experts said. One exception, she said, could be screening for perinatal depression.
“There’s a lot of concern about what this could mean for access to care,” Cox said. “Even small cost sharing [amounts] can deter people from getting preventive care.”
In the next few days, more clarity is expected about which preventive services remain and which do not, she said.
Until more is known, Cox urged people to remember that “The list of services that remains free is much longer than the list that might become subject to cost sharing.” Her advice: “Don’t panic, and still get the preventive care that’s recommended to you.”
Levitt and other experts said it’s unlikely any coverage changes would happen immediately, as insurer’s contracts generally are in place for the year.
Changes would probably come, if the ruling holds, next calendar year, Levitt said. Beyond the ACA, states are free to require coverage for these services, he said, and some do. “But states can’t reach self-insured plans, which cover most people.”
Until the legal arguments are sorted out, people can take a number of steps, said Meredithe McNamara, MD, assistant professor of pediatrics and an adolescent medicine specialist at Yale University School of Medicine, who has researched the effect of eliminating coverage for the HIV preventive medication known as PrEP.
- Reach out to your health care provider to discuss how it might affect care.
- Call insurance providers and demand continued access to preventive care without cost sharing.
- Contact elected officials and request a federal workaround.
Preventive services “get people in the door,” she said, and provide valuable health counseling.
The U.S. Preventive Services Task Force makes its recommendations based on medical evidence that certain services help prevent disease spread or improve treatment through early detection.
“If cost becomes a barrier to preventive care, that could lead to worse health outcomes, whether it’s later-stage lung cancer diagnoses or more HIV transmission,” Cox said.