A federal judge’s ruling in Texas has thrown into question whether millions of insured Americans will continue to receive some preventive medical services, such as cancer screenings and drugs that protect people from HIV infection, without making a copayment.
It’s the latest legal battle over the Affordable Care Act, and Wednesday’s ruling is almost certain to be appealed.
A key component of the ruling by Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas says one way that preventive services are selected for the no-cost coverage is unconstitutional. Another part of his ruling states, that the requirement that HIV prevention drug therapy be covered for patients at no cost violates the religious freedom and rights of employers who are plaintiffs in the case.
It is still unclear what this means for patients who are insured. It all depends on what happens next.
O’Connor is likely familiar to people who have followed the legal battles over the ACA, which became law in 2010. He ruled that the entire ACA was invalid in 2018. In this latest case, he asked both sides to submit their positions on the next steps in filings due Sept. 16.
The judge may then explain how broadly he will use the ruling. O’Connor, whose 2018 ruling was later reversed by the U.S. Supreme Court, has some choices. He could state that the decision only affects the plaintiffs in conservative cases, expand it to all Texans or make it available to all Americans. He could also temporarily block the decision, while appeals, which are likely, are considered.
“It’s quite significant if his ruling stands,” said Katie Keith, director of the Health Policy and the Law Initiative at the O’Neill Institute for National and Global Health Law at the Georgetown University Law Center.
We asked experts for their opinions on what the ruling might mean.
What is the ACA’s position on preventive care?
A provision of the ACA which went into effect in 2010 covers preventive services. without a copayment or deductible from the patient.
The federal government currently lists22 broad categories of coverage are available for adults. There are 27 additional categories for women and 29 children.
To be eligible for these lists, you must have vaccines, screening tests and drugs recommended by one of three medical experts. The Texas case focuses on one group of recommendations: the U.S. Preventive Services Task ForceA nongovernmental advisory panel composed of volunteers who weigh the pros and disadvantages of screening tests and preventive treatment.
Procedures that allow for an “A” or “B” recommendationThe task force must cover the insured patient without cost. This includes a variety cancer screenings such as mammograms and colonoscopies; cholesterol drugs for some; and screenings for depression, diabetes, and sexually transmitted disease.
Why didn’t the ACA simply spell out what should be covered for free?
“As a policymaker, you do not want to set forth lists in statutes,” said Christopher Condeluci, a health policy attorney who served as tax and benefits counsel to the U.S. Senate Finance Committee during the drafting of the ACA. One reason, he said, is that if Congress wrote its own lists, lawmakers would be “getting lobbied in every single forthcoming year by groups wanting to get on that list.”
According to him and other experts, the idea of putting it in an autonomous body theoretically shields such decisions against political influence and lobbying.
What did the judge think?
It’s complicated, but the judge basically said that using the task force recommendations to compel insurers or employers to offer the free services violates the Constitution.
O’Connor wrote that members of the task force, which is convened by a federal health agency, are actually “officers of the United States” and should therefore be appointed by the president and confirmed by the Senate.
The decision does NOT affect the recommendations made the other two medical experts: Advisory Committee on Immunization PracticesThe, which makes recommendations on vaccinations to the Centers for Disease Control and Prevention, and the Health Resources and Services Administration. This part of the Department of Health and Human Services has established free coverage rules for services primarily aimed at infants, children, and mothers, including birth control directives.
Many of the task force’s recommendations are noncontroversial, but a few have elicited an outcry from some employers, including the plaintiffs in the lawsuit. They claim they shouldn’t be forced to pay for treatment or services they don’t agree with, such HIV prevention drugs.
Part of O’Connor’s ruling addressed that issue separately, agreeing with the position taken by plaintiff Braidwood Management, a Christian, for-profit corporation owned by Steven Hotze, a conservative activist who has brought other challenges to the ACA and to coronavirus mask mandates. Hotze questioned the requirement that preexposure prophylaxis (PrEP), drugs that prevent HIV, be covered free of charge. He said it runs afoul of his religious beliefs, including making him “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman,” according to the ruling.
O’Connor said forcing Braidwood to provide such free care in its insurance plan, which it funds itself, violates the federal Religious Freedom Restoration Act.
What about no-copay contraceptives, vaccines, and other items that are covered under recommendations from other groups not targeted by the judge’s ruling?
The judge said recommendations or requirements from the other two groups do not violate the Constitution, but he asked both parties to discuss the ACA’s contraceptive mandate in their upcoming filings. Currently, the law requires most forms of birth control to be offered to enrollees without a copayment or deductible, although courts have carved out exceptions for religious-based employers and “closely held businesses” whose owners have strong religious objections.
The case will likely be appealed to U.S. 5th. Circuit Court of Appeals.
“We will have a conservative court looking at that,” said Sabrina Corlette, co-director of Georgetown University’s Center on Health Insurance Reforms. “So I would not say that the vaccines and the women’s health items are totally safe.”
Does this mean my mammogram or HIV treatment won’t be covered without a copayment anymore?
Experts say the decision probably won’t have an immediate effect, partly because appeals are likely and they could continue for months or even years.
Still, if the ruling is upheld by an appellate court or not put on hold while being appealed, “the question for insurers and employers will come up on whether they should make changes for 2023,” said Keith.
However, it is unlikely that there will be widespread changes next year as many employers and insurers have already created their coverage rules and established their rates. Many employers who supported the idea of allowing a task force to make recommendations as the ACA was being drafted might not make significant changes, even if the ruling stands up on appeal.
“I just don’t see employers for most part really imposing copays for stuff they believe is actually preventive in nature,” said James GelfandPresident of the ERISA Industry Committee which represents large, self insured employers.
Gelfand stated that employers generally agree on preventive services. However he said that it is controversial to cover all types or brands of contraceptives without a patient copayment and that some employers have cited religious objections when covering certain services.
Future decisions could have financial consequences, despite religious objections. Employers and insurers might look for ways to reduce costs by instituting copayments or increasing deductibles for preventive services that are more costly, such as colonoscopies and HIV drugs.
“With some of the higher-ticket items, we could see some plans start cost sharing,” said Corlette.
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