When a federal judge in Texas declared unconstitutional a popular part of the Affordable Care Act that guarantees free preventative care for certain services, such as screening tests for diseases such as diabetes, hepatitis and certain cancers, this left a lot of people with a lot of questions.
On the face of it, the March 30 ruling could affect the ACA and employment-based insurance plans nationwide and a host of medical services now free for patients.
What does this really mean for people with insurance? Policy and legal experts say there are unanswered questions and plenty of nuance.
First, a little background. The case, the ACA’s latest legal challenge, was brought by several individuals and an employer in Texas who argued that the law’s requirement for free preventive care is unconstitutional, and also argued that the Requiring HIV prevention treatment coverage may violate employers’ religious rights.
U.S. District Judge Reed O’Connor accepted some of their arguments, declaring unconstitutional a way recommended tests are chosen and agreeing that requiring employers to offer pre-exposure prophylaxis for HIV, known as PrEP, violates the Religious Freedom Restoration Act. But O’Connor disagreed on other points that could have eliminated free coverage for things like contraceptives and vaccines.
Despite the ruling, little is expected to change much for short-term enrollees, as insurers and employers are expected to be reluctant or even unable to immediately begin charging co-payments or deductibles for affected preventative care.
But as the case progresses through the court system — the Justice Department and the plaintiffs have filed notices saying they will appeal — here are four things to keep in mind:
1. Much remains uncertain
Because of the ACA, most policyholders currently receive preventative care which includes screening tests such as mammograms and colonoscopies – as well as other examinations, such as checks for bone thinning in older women, depression in adults or obesity in children – without being charged a copay or money towards a deductible. There’s a long list of eligible services, including any that get an “A” or “B” recommendation from the US Preventive Services Task Force, or USPSTF, an independent group of volunteer experts.
But O’Connor, of the U.S. District Court for the Northern District of Texas, said the members of this volunteer task force, who are appointed by the director of a federal agency, are “‘officers’ of the United States and therefore must be nominated by the President and confirmed by the Senate. Because they are not, he ruled that using their recommendations to set up free preventive services under the ACA is unconstitutional.
This is where things get confusing, as not all of the task force’s 50-plus recommendations would necessarily be affected if the ruling were upheld.
Some policy experts have said certain services will remain exempt from co-pays or other cost-sharing for patients, in part because certain tests or treatments are also recommended under guidelines from other federal agencies and therefore are not not affected by the decision.
The Federal Health Resources and Services Administration, for example, sets preventative care guidelines for a host of women’s health issues, including mammograms and contraception, although there is an exemption for religious employers. . Additionally, an advisory committee from the Centers for Disease Control and Prevention recommends certain vaccines for children and adults. Additionally, cost-sharing may not apply to some services, as many experts expect the ruling will not affect testing or treatment recommendations made before 2010, the year the ACA came into effect.
“The idea is that when Congress passed the ACA, it adopted all of the USPSTF recommendations before 2010, but anything the judge has said since then is unconstitutional,” said Timothy Jost, professor. of Law Emeritus at Washington and Lee University School of Law. , which closely follows the ACA.
2. What is certain
One problem, however, is that most of the recommendations have been revised, as part of the working group’s ongoing work to update the recommendations as new scientific evidence emerges.
A recent addition, for example, made in 2021, was to recommend that adults aged 45 to 49 get screened for colorectal cancer. Prior to this, screening was primarily aimed at adults aged 50 or older.
One of the possible effects of the judge’s decision, if not overturned on appeal, is that people between the ages of 45 and 49 may no longer be guaranteed copayment-free colon cancer screenings.
But the changes could be broader.
This is because it is unclear how the decision would affect recommendations that have been revised since 2010. For example, would any revisions or updates made by the working group since 2010 make the entire recommendation subject to decision, asked Jost, or does the decision only apply to the change made, such as increasing the age of colon cancer screening?
“Is everything the USPSTF has touched since 2010 now unconstitutional?” Jost asked.
According to Dr. A. Mark Fendrick, director of the Center for Value-Based Insurance Design at the University of Michigan.
New or updated recommendations include: a 2019 recommendation that PrEP should be offered to people at high risk for HIV, a 2021 update for annual lung cancer scans for some current or former smokers , and hepatitis C screening in adults aged 18-79, updated 2020.
3. It will depend on your coverage and geography
Each self-insured insurer and employer will decide whether to reinstate copayments or other cost sharing for these services. Even if they do, it may take time to take effect, especially since the policies are now in the middle of a plan year, making them contractually difficult to change.
“It will depend on your employer and what they want to do, and will depend on whether you have a collective bargaining agreement and many other variables,” said Sara Rosenbaum, professor of health law and policy at George Washington University. .
This type of variable coverage was “exactly what the ACA was designed to avoid, to make this more even for all of us,” Rosenbaum added.
Even with the ruling, at least 15 states have laws requiring coverage of preventive services without cost sharing, according to an analysis by researchers at Georgetown University’s Center for Health Insurance Reform.
But the state rules only apply to ACA plans and employment-based plans offered by employers who purchase coverage from an insurer. Most large employers — and a growing number of smaller ones — self-insure and are not subject to state coverage rules.
4. What happens next?
Congress could solve the problem with a simple fix at the ACA, says Fendrick of the University of Michigan. “Give the approval of the task force recommendations by the secretary of the Department of Health and Human Services and it’s done,” he said.
Yet even though preventive services coverage is popular with consumers, the ACA’s policy change is difficult, especially in a sharply divided Congress.
In the meantime, the case will go through the appeals process and a final resolution could take months or even years.
The Justice Department will seek to overturn the ruling, while plaintiffs will likely seek to broaden it, challenging the parts of the judge’s ruling that worked against them. Specifically, the people and employer who brought the case wanted the decision to also cover recommendations made by other agencies, including all of the women’s health recommendations that include contraceptives.
“As far as we’re concerned, it’s all on the line,” Rosenbaum said.
KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism on health issues. Along with policy analysis and polls, KHN is one of the three main operating programs of the KFF (Kaiser Family Foundation). KFF is an endowed non-profit organization providing information on health issues to the nation.
