Preserving the ACA’s Preventive Services Protections in the Wake of Braidwood v. Becerra: A Checklist of State Options
Sabrina Corlette, Georgetown Center on Health Insurance Reforms, and Tara Straw, Manatt Health
On March 30, 2023 a federal district court judge issued a ruling in Braidwood Management, Inc v. Becerra, blocking the federal government from enforcing the Affordable Care Act’s (ACA) requirement that health plans and issuers cover, without cost-sharing, high value preventive services. If allowed to stand, the decision would invalidate life-saving benefits that more than 150 million Americans have relied on for over a decade, including cancer and mental health screenings and medications to prevent heart disease and the transmission of HIV/AIDS. The litigation, which the U.S. Department of Justice is appealing, impacts people in federally and state-regulated health plans. Although states’ insurance laws cannot protect the approximately 62 million Americans in health plans regulated under the federal Employee Retirement Income Security Act (ERISA), they can protect consumers enrolled in the plans they do regulate. This expert perspective discusses who will be impacted by the court’s decision and the preventive services most at risk, and updates State Health & Value Strategies’ September 2022 checklist of actions states can take to maintain coverage for residents.
Section 2713 of the Public Health Service Act, as added by the ACA, requires individual, small-group, large-group, and self-funded group health plans to cover, without cost-sharing, the following preventive health services:
- Services given an “A” or “B” rating by the U.S. Preventive Services Task Force (USPSTF);
- Immunizations recommended by the Advisory Committee on Immunization Practices (ACIP);
- Services for women identified in guidelines published by the Health Resources and Services Administration (HRSA), an agency within the U.S. Department of Health and Human Services (HHS); and
- Services for infants, children, and adolescents published under HRSA guidelines.
Together, these guidelines recommend more than 100 preventive services. Research has shown that enabling people to obtain preventive care without cost-sharing has boosted vaccination rates, increased the number of people who get recommended blood pressure, cholesterol, colorectal, and other screenings, and improved women’s access to effective contraception. The rate of unintended pregnancies has declined since the ACA’s requirement to cover contraception went into effect. Coverage of preventive services continues to be a popular provision of the ACA, with bipartisan support.
The plaintiffs in Braidwood Management are individuals and business owners who argue that the ACA’s preventive services provision is unconstitutional. Federal District Court Judge Reed O’Connor ruled on September 7, 2022, that the preventive services provision violates the Appointments Clause of the U.S. Constitution, which governs how “Officers of the United States” must be appointed. The court concluded that the experts who serve on the USPSTF are “Officers of the United States” and that their appointments were improper. However, O’Connor rejected similar claims with respect to ACIP and HRSA, noting that for those two advisory bodies, the Secretary of HHS “ratifies” their recommendations. Judge O’Connor also agreed with the plaintiffs that the requirement to cover pre-exposure prophylaxis (PrEP) to prevent the transmission of HIV violates the Religious Freedom Restoration Act (RFRA). The plaintiffs had argued that PrEP “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage,” violating their religious beliefs. Judge O’Connor agreed that the mandate to cover and waive cost-sharing for PrEP placed an undue burden on the plaintiffs’ exercise of their religion.
In an opinion on March 30, Judge O’Connor ruled on the remedies for these violations. He ordered that the federal government cannot enforce the requirement to cover, without cost-sharing, preventive services recommended by the USPSTF after March 23, 2010, the date of the ACA’s enactment. The PrEP requirement is also unenforceable if it burdens the religious exercise of plan sponsors or individuals. Unless the government’s motion for a stay pending appeal succeeds, Judge O’Connor’s decision takes effect immediately.
Who is Impacted and How
The decision permits non-grandfathered, fully insured and self-insured plans to drop coverage of certain USPSTF-recommended preventive services or to newly charge cost-sharing (including applying deductibles), which could make some services prohibitively expensive. Many screenings and vaccinations must remain covered because they are recommended by ACIP, are part of the HRSA women’s or children’s health guidelines, or had A or B recommendations at the time of the ACA’s enactment, but coverage of recommended services that newly have an A or B rating could be reduced.
The USPSTF recommended services with A or B recommendations that were first published after the ACA was enacted, and are most vulnerable to restriction under Braidwood are:
- Screening for perinatal depression and counseling interventions for pregnant and postpartum persons
- Pre-exposure prophylaxis (PrEP) for persons at high risk of acquiring HIV (though the district court found mandating coverage of this recommendation also violates RFRA)
- Counseling of pregnant persons about healthy weight and weight gain in pregnancy
- Screening for anxiety in children and adolescents, age 8 to 18 years old
- Exercise interventions to prevent falls in community-dwelling older adults (ages 65 or older) (Note that Medicare and Medicaid coverage of USPSTF-recommended preventive services is likely not impacted by Braidwood.)
In addition to those completely new preventive services recommendations, several recommendations that currently have A or B ratings had other ratings in 2010 and therefore did not have to be covered at the time of the ACA’s enactment, so will likely be unenforceable if Braidwood stands:
- Lung cancer screening for those with a history of smoking
- Screening for intimate partner violence in women of reproductive age
- Gestational diabetes screening for pregnant persons
- Primary care clinician screening for dental caries in preschool children for the prevention of dental disease
- Screening for type 2 diabetes in adults with elevated blood pressure and for diabetes and prediabetes in people who are overweight or obese
- Counseling of children and adolescents to prevent and treat tobacco use and dependence
- Skin cancer prevention behavioral counseling
- Osteoporosis screening for women at higher risk
- Hepatitis C and hepatitis B screening
- Unhealthy drug use screening
- Aspirin prophylaxis in pregnant people with high risk for preeclampsia
Beyond these recommendations which were not in effect prior to 2010 and those with ratings other than A or B, nearly every USPSTF recommendation has been updated since 2010 to reflect updated medical evidence, raising questions about the impact of the Braidwood decision on these preventive services. One such example is colorectal cancer screening. (cakesprices.com) Prior to 2010, colorectal screening was only recommended for adults over age 50. The current USPSTF guidelines recommend these screenings beginning at age 45.
Many questions remain about how this decision could be implemented by federally regulated self-insured plans and fully insured plans that are subject to both state and federal laws. On April 13, the Departments of Labor, HHS, and the Treasury (the Departments) issued initial guidance to address immediate plan compliance issues. People covered by self-insured plans which are not subject to state regulation may be most vulnerable to mid-year benefit reductions or cost-sharing increases, which can be made with only 60 days’ notice. People in fully insured plans may have additional federal, state or contract protections. For example, on- or off-Marketplace individual market plans are sold on a calendar-year basis, meaning the benefits under those contracts would generally remain unchanged until January 1, 2024. The Departments indicate that additional guidance is forthcoming, including how the Braidwood decision impacts USPSTF recommendations that predate March 23, 2010, but have been subsequently updated.
Actions States Can Take to Preserve the ACA’s Cost-Free Preventive Services Benefit
The federal district court’s decision in Braidwood does not affect states’ power to set standards and requirements for health insurance issuers. And although states are generally preempted from regulating self-funded employer health plans (these plans are regulated exclusively under ERISA), states can regulate the benefits offered by insurers in the individual and fully insured employer group markets. There are a range of options for states seeking to maintain access to preventive services without cost-sharing. Below we discuss a checklist of actions that states can take, from enacting new legislation to using their bully pulpits to ask plans and issuers not to roll back these life-saving benefits.
- Enact or update state law to incorporate the ACA’s preventive services benefit mandate into the insurance code. Currently, only 15 states have codified the preventive services protections into state law, and some of those have only done so for the individual market. Before taking this step, states should consult with federal partners to confirm that such a law would not trigger the ACA provision requiring states to defray any additional premium costs associated with benefits enacted after January 1, 2012.
- Update the state’s essential health benefits (EHB) benchmark plan to clearly specify that it covers all of the USPSTF, ACIP, and HRSA recommended preventive services, as well as any future recommendations from these three bodies. However, states wishing to do so must act quickly or ask federal regulators for an extension: the deadline for submitting plan year 2025 EHB updates is May 3, 2023. Additionally, the EHB benchmark only establishes the services that individual and small-group market issuers must cover. States would need to take separate action to ensure that carriers continue to waive cost-sharing for these services.
- Update certification standards for Marketplace qualified health plans to specifically include continued coverage, without cost-sharing, of USPSTF, ACIP, and HRSA recommended services. As with any legislative mandate, states seeking to do so should consult with federal partners to confirm that such a certification requirement would not trigger a defrayal obligation.
- Require state employee health plans to cover section 2713 To fully protect state employees and their dependents, states may need to mandate continued coverage of preventive services, without cost-sharing.
- Prohibit midyear benefit changes. If not already prohibited, states should bar issuers in the individual and fully insured group markets from rolling back section 2713 benefits in the middle of the plan year. This will be particularly important if the court does not grant a stay of its ruling in Braidwood.
- Use your bully pulpit. State policymakers can call on plans and employers to publicly pledge not to backtrack on covering preventive services. Michigan’s governor, for example, secured voluntary commitments from issuers in the state to maintain no-cost preventive benefits despite the federal district court’s ruling. Policymakers, regulators, and others can also help educate the media and the public (and the federal judges who will decide this case on appeal) about the irreparable harm and confusion that would result from a failure to reverse the federal district court’s decision.
Although the district court’s decision takes immediate effect, the U.S. Department of Justice has asked the judge to stay his decision, and they have also appealed the case to the 5th Circuit Court of Appeals. The lower court has deferred ruling on the motion to stay its decision, asking the government to provide evidence that people will have their coverage disrupted if his decision is allowed to stand.
Ultimately, this case is likely to be decided by the Supreme Court. Although this litigation will take time to wind its way through the federal courts, states can act now to protect consumers in state-regulated plans, and to call on health insurers and employers in their states to maintain access to these critical, life-saving services.