March 31, 2023 – Health experts across the country are attempting to determine what preventive services shall be available after Thursday’s Verdict by a federal judge who struck down a part of the Affordable Care Act.
U.S. District Judge Reed O'Connor ruled that the ACA's prevention mandate, which provides for screenings for varied diseases – from lung cancer to sexually transmitted infections – without copayment, violates the plaintiffs' religious rights and is unconstitutional.
Health experts, meanwhile, were studying exactly what number of screenings may be affected and said changes were unlikely to occur immediately. The Justice Department filed a notice Friday saying it intends to appeal.
Reactions
Numerous health organizations and other organizations reacted sharply to the ruling, but acknowledged that no immediate changes were to be expected.
In a Opinion, The American Academy of Family Physicians expressed “alarm and disappointment” on the ruling, saying it might “create insurmountable barriers to screening, counseling and preventive medicines that improve patient and community health, including pre-exposure prophylaxis (PrEP) medicines to prevent HIV.”
Margaret A. Murray, president of the Association for Community Affiliated Plans, which represents 79 health insurers that insure greater than 25 million people, said in a opinion that the choice, if implemented, would undermine access to a complete range of preventive health services. “Families deserve better than to have basic protections in the health reform law overturned in a two-page ruling.”
The O'Neill Institute for National and Global Health Law at Georgetown University made it clear that the ruling may lead to a drastic increase in the prices of essential preventive services.
“If the decision is not delayed, preventive health care will become unaffordable for millions of Americans and their options for early treatment of diseases such as colon and lung cancer, diabetes and depression, to name a few, will be limited,” the group said in a opinion.
What's next?
Legal experts said the case, referred to as Braidwood v. Becerra, could grant a stay pending the appeal, allowing advantages to stay in place.
“The case could even go to the Supreme Court,” said Cynthia Cox, vice chairman and director of the Affordable Care Act program on the Kaiser Family Foundation, a nonprofit organization that focuses on national health issues.
Which care is affected?
Under the ACA, preventive services rated A or B by the US Preventive Services Task Force, a voluntary, independent panel of experts, are covered without out-of-pocket costs. Over the years, the USPSTF 53 A or B grades includes 46 recommendations.
The ruling claims that the preventive services mandate is unconstitutional since it violates the U.S. Constitution. appointment clause. This clause requires that such decisions be made by a federal official appointed by the president or a department head. The task force is an independent panel of volunteer experts who sift through evidence before making their recommendations.
According to the court ruling, only recommendations made in 2010 or later, when the ACA went into effect, can be overturned. Although the USPSTF website doesn't list what number of A or B rankings have been issued (or upgraded to A or B) since 2010, Cox estimates that a few dozen of them may very well be overturned.
At a Kaiser Family Foundation seminar on the ruling on Thursday, Cox and other experts speculated that a number of the newer recommendations, equivalent to lung cancer and skin cancer screenings and the suggestion to make cholesterol-lowering statins free for at-risk people, may now not be entirely free.
However, I believe it is extremely likely that insurers will proceed to cover these programs,” says Larry Levitt, Kaiser's vice president for health policy. However, there may be a cost-sharing copayment for certain services.
“This ruling has no impact on vaccines,” Cox said. Recommendations for vaccines come from the CDC's Advisory Committee on Immunization Practices. Prenatal care is also unlikely to be affected, Cox and other experts said. One exception, she said, could be screening for perinatal depression.
“There are big concerns about what this could mean for access to health care,” Cox said. “Even small cost-sharing [amounts] can deter people from undergoing preventive screening.”
More clarity is expected in the next few days about which prevention services will remain in place and which will not, she said.
Until more is known, Cox urges people to remember that “the list of services that can proceed to be free is for much longer than the list of services which will require co-payments.” Her advice: “Don't panic and proceed to get the screenings which are beneficial for you.”
Timelines
Levitt and other experts said it was unlikely that any changes to insurance coverage would occur immediately because insurers' contracts typically run for a year.
If the ruling stands, changes would likely come in the next calendar year, Levitt said. Beyond the ACA, states are free to mandate coverage for these services, and some do. “But states can't get to the self-insurance plans that cover most individuals.”
Action plan
Until the legal arguments are resolved, there are a number of steps people can take, says Dr. Meredithe McNamara, an assistant professor of pediatrics and adolescent medicine at Yale University School of Medicine, who has studied the impact of eliminating coverage for the HIV prevention drug PrEP.
Including:
- Contact your doctor to discuss how this may affect your treatment.
- Call your insurance providers and demand continued access to preventive care at no cost.
- Contact elected officials and demand a federal solution.
Preventive services would “bring people into the home,” she said, and provide valuable health advice.
The U.S. Preventive Services Task Force bases its recommendations on medical evidence that certain services help prevent the spread of disease or improve treatment through early detection.
“When cost becomes a barrier to screening, it might probably result in poorer health outcomes, whether it's late-stage lung cancer diagnoses or increased HIV transmissions,” Cox said.