The Affordable Care Act’s (ACA) preventive care mandate has been partially struck down by a federal district judge. On March 30, 2023 the ruling made portions of the preventive care benefit unconstitutional nationwide. The U.S. Department of Justice has appealed the decision, so there is likely more to come out of this ruling.
Back in December of 2017 we published a blog post detailing the ACA’s preventive care benefit, which largely came into effect in 2011. See – https://smstevensandassociates.com/preventive-healthcare-services-and-coverage/
Since that time, the number of covered preventive health services, including some pharmaceuticals, has grown from thirty-something, to over one hundred in number. Per the ACA, these services/drugs must be provided to all “non-grandfathered” health insurance plans, without any cost sharing (i.e., copay, deductible, coinsurance), according to established timeframes. So procedures like annual preventive screenings, colonoscopies, mammograms, lung cancer screenings, and statin drugs are required to be covered at 100%, provided care is provided by contracted/preferred providers.
The essence of the court case surrounds one of the four sources of healthcare experts that advise the federal government on recommended preventive care services. Of the four, one is comprised of volunteer expert representatives – the United States Preventive Services Task Force (PSTF). And the U.S. constitution’s “appointment clause” is violated in this case, according to the court ruling, because of the reliance on volunteer versus appointed representatives. This makes things a bit tricky as the ruling deems only those preventive services provided by PSTF as unconstitutional. Recommendations made by the Advisory Committee on Immunization Practices (ACIP), the Health Resources and Services Administration’s (HRSA’s) Bright Futures Project, and the HRSA-sponsored Women’s Preventive Services Initiative (WPSI) are not impacted by the court ruling. These three panels operate under the direct control and supervision of the U.S. Department of Health and Human Services (HHS).
Importantly, the court decision does NOT impact mandated preventive care benefits such as vaccines, women’s health services (including contraception), and most services provided to children and young adults (e.g., well child exams). These services are recommended by the panels that have HHS oversight, and do not involve volunteer representatives .
Absent the courts delaying this ruling (i.e., issuing a stay) the decision takes effect immediately, and allows health insurers and self-funded employers to amend coverage to require plan cost sharing for certain preventive services, including:
Employers and health insurers will likely refrain from modifying coverage in the immediate term, and wait to see how the court case plays out, particularly whether a stay of the decision is issued prior to the deadline of May 29, 2023. In addition, the federal government’s appeal, if successful, would render the ruling unenforceable.
We’ll continue to monitor this situation and advise our clients and readers of any relevant developments.
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