Protecting Access to Preventive Services: A State Roadmap
Sabrina Corlette, Georgetown Center on Health Insurance Reforms, and Tara Straw, Manatt Health
Introduction
The Supreme Court is scheduled to hear oral arguments on April 21 on a case, Kennedy v. Braidwood Management, Inc. (Braidwood), that could substantially weaken the Affordable Care Act’s (ACA) guarantee of no-cost preventive services in private insurance. Specifically, the federal government, under the Biden administration, challenged the Fifth Circuit’s ruling that the recommendations of the U.S. Preventive Services Task Force (USPSTF) are unenforceable because the manner in which the USPSTF members are selected violates the Appointments Clause of the U.S. Constitution. While the Trump administration’s brief took the same position advanced by the previous administration, there are concerns that, through administrative actions, the federal government may limit the recommendations subject to the coverage mandate or otherwise change how the appointment and recommendation processes work, or may weaken the preventive services requirements for coverage of recommendations from the Advisory Committee on Immunization Practices (ACIP) or Health Resources and Services Administration (HRSA).
Preventive services provide lifesaving care. States can take action to preserve no-cost preventive services coverage in their regulated markets through legislative or administrative means, including by shoring up their essential health benefits (EHB) benchmarks, leveraging standardized plans, and using the bully pulpit to identify carriers and insurance products that retreat from today’s coverage.
Legal Background
Section 2713 of the ACA requires that private health plans—including all non-grandfathered individual, small group, large group, and self-insured plans—cover (1) preventive services recommended with an “A” or “B” rating by the USPSTF; (2) women’s and children’s preventive services recommended by HRSA; and (3) ACIP vaccine recommendations. On June 21, 2024, the U.S. Court of Appeals for the Fifth Circuit ruled that the USPSTF, in having its recommendations become coverage requirements, wields so much unreviewable power that its members are “principal officers” who must be nominated by the President and approved by the Senate under the Appointments Clause of the Constitution (which is not today’s practice). Because of this constitutional deficiency, the court said, the preventive care mandates from the USPSTF are unenforceable, putting at risk the no-cost coverage of a spate of benefits recommended or updated by the USPSTF after the ACA’s enactment. At the federal government’s urging, the Supreme Court is taking up the case. Oral argument is set for April 21, with the Court expected to rule by June or early July.
On February 18, the Department of Justice (DOJ) filed a brief that maintained the prior position, arguing that the USPSTF members are inferior officers that may be appointed by the Secretary of Health and Human Services (HHS). Emphasizing the HHS Secretary’s control over the USPSTF, DOJ stated the government’s position that “the Secretary can remove Task Force members at will, for any reason” and that removal can occur “before the end of their term, because there are no statutory restrictions on a member’s removal.” DOJ argued that the HHS Secretary is ultimately “responsible for final decisions about whether Task Force recommendations will be legally binding” and “can review the Task Force’s preventive-service recommendations and decide to deny them legal force under the ACA before those recommendations have binding effect.” While no administration has taken action to block, change, or delay USPSTF recommendations or to directly remove staff, former HHS Secretary Becerra, in the course of this litigation, ratified its recommendations and made the USPSTF members subject to appointment by the Secretary.
Who Is Impacted and How
The Office of the Assistant Secretary for Planning and Evaluation (ASPE) estimates that over 151 million non-elderly adults with private insurance had access to preventive services without cost-sharing in 2020.
The guarantee of no-cost preventive services was included in the ACA because lawmakers recognized the significant value of screenings and similar services in detecting and managing chronic diseases. The cost of disability and death associated with chronic disease is in the trillions of dollars. Having a chronic illness not only impacts health, but also economic mobility. People with chronic diseases may face high direct costs of care or may reduce their work hours or lose their job to accommodate treatment or in response to physical limitations.
Evidence-based USPSTF recommendations cover a wide range of services, including certain cancer screenings, hypertension, diabetes, pregnancy-related conditions, and depression; they also cover some prescribing recommendations, such as for human immunodeficiency virus (HIV) pre-exposure prophylaxis (PrEP). Preventive services help Americans stay healthy by enabling early detection of potential health issues, timely treatment, and the prevention of chronic illness from progressing to more serious stages. There is a deep body of evidence regarding populations who bear disproportionate disease burden because they do not have access to affordable preventive care. For example, only 5.3% of individuals living with disabilities received all appropriate preventive services in 2020. Further, Black individuals have a strikingly higher rate of maternal deaths (49.5 per 100,000 live births, compared to the national average of 22.3) which, in part, may be related to barriers to high-quality prenatal care. In 2022, 38% and 32% of new HIV cases were diagnosed among Black and Latino(a) individuals, respectively, but they represented only 14% and 17.5% of HIV PrEP users, indicating a significant unmet need.
Section 2713 not only guarantees coverage of a list of services, but that the services can be accessed without cost-sharing. Research has found that even small levels of cost-sharing (between $1 to $5) are associated with reduced use of care. Individuals with low incomes are more likely to reduce their use of services due to cost-sharing than individuals with higher incomes. Evidence has shown that the ACA’s free preventive services increase access to and use of preventive care.
Protecting Residents With State-Regulated Insurance: A Roadmap
States cannot ensure that residents in self-funded employer plans continue to have access to no-cost recommended preventive services, but they can protect those in state-regulated plans. Such protective action can take the form of legislation or executive branch decisions, such as through updates to and oversight of the ACA’s EHB requirements. State insurance regulators are also in a unique position to monitor whether insurers are attempting to weaken preventive services coverage and educate policyholders and the public about the impact of such changes.
State Legislative Options
Numerous states have enacted legislation to enshrine the ACA’s preventive services protections into their state insurance code. Doing so not only maintains the protection for people in state-regulated plans if the federal protection is taken away, but also gives state insurance regulators clear authority to monitor compliance and ensure the protections are being applied appropriately. However, states that have enacted their own laws requiring coverage of no-cost preventive services may need to review those statutes to ensure that they will continue to be enforceable if the Braidwood plaintiffs succeed in their lawsuit or the Trump administration uses its administrative power to weaken the protections. This could include empowering a state-level body to recommend high-value preventive services for cost-free coverage, as a fallback to the federal process.
State Administrative Options
If section 2713 of the ACA is weakened due to judicial or regulatory action, state departments of insurance (DOIs) can mitigate the loss of preventive coverage by shoring up EHBs, conducting more robust oversight of state-regulated insurers, and establishing or amending standardized plan designs. States can also use their enforcement powers to assess whether and to what extent insurers are responding to a weakened section 2713 by reviewing plan contracts and publicizing any reductions in coverage.
Essential Health Benefits – Updating Benchmark Plans
In addition to section 2713, the ACA requires state-regulated insurers in the individual and small group markets to cover 10 categories of EHBs.[1] One of those 10 categories is “preventive and wellness services and chronic disease management.” The federal government has largely delegated to states the responsibility to determine the scope of services covered under the EHB categories, which they do by requiring insurers to offer plans equivalent to an EHB “benchmark” plan.
If section 2713 is rolled back or weakened, states may want to confirm that their current EHB benchmark plan explicitly includes robust coverage for preventive services recommended by the USPSTF, ACIP, and HRSA, rather than defining coverage solely through reference to section 2713. States could also direct, through regulation or sub-regulatory guidance, individual and small group market insurers to include in the “preventive and wellness services” category of EHB the full range of items and services recommended by USPSTF, ACIP, and HRSA. Insurance regulators can further act to ensure that insurers adhere to clinical recommendations related to service frequency, target populations, and target age ranges for the receipt of preventive services.
Leveraging Standardized Health Plans
While the ACA’s EHB provision requires coverage of preventive services, it is only section 2713 that mandates coverage of such services without patient cost-sharing. If section 2713 is weakened, states can leverage standardized health plans to ensure that insurers do not impose deductibles or other cost-sharing on recommended preventive services.
Thirteen State-Based Marketplaces currently require Marketplace insurers to offer standardized health plans. Many of these standardized benefit designs ensure that enrollees do not face cost-sharing for high-value services such as primary care and generic drugs. States seeking to preserve no-cost access to preventive services could leverage their standardized plan designs to do so and also extend requirements to offer standardized plans to carriers in the state-regulated group market.
Monitoring and Communications
State insurance regulators can also use their authority to review insurers’ proposed plan benefit designs (a process called “form review”) to assess whether and to what extent insurers are weakening coverage of critical preventive services absent the section 2713 requirements. Consumers and employers deserve to be informed, in advance of any purchasing decisions, whether they will face new cost-sharing barriers for preventive services. Regulators can require insurers to clearly explain and justify any proposed benefit changes. DOIs can also help inform policymakers and the public about how insurers are responding to any weakening of section 2713 by publishing reports with carrier-specific data about any services that have been removed from coverage or newly subject to cost-sharing.
Looking Ahead
Free access to life-saving preventive care has been a core protection of the ACA and remains one of the most popular provisions of the law. Preventive services such as vaccines, regular diagnostic screenings, and well-person visits are some of the most important and effective tools to help people avoid, identify, and manage acute and chronic illness.
Yet section 2713 of the ACA has been targeted by the law’s opponents. Should they be successful in their efforts to strike down or weaken this provision, health insurers could no longer be obligated to provide free preventive care, further exacerbating the prevalence and impact of chronic disease. Although states are preempted from efforts to protect people in self-funded employer plans, they have several legislative and administrative options to preserve access for those in state-regulated insurance products.
[1] The requirement to cover EHBs does not apply to state-regulated large-group market plans (in most states defined as those with 50 or more employees) or to self-funded employer group plans.