The Affordable Care Act (ACA) includes a provision that requires non-grandfathered health plans to cover certain preventive health services on a first dollar basis without cost sharing. The ACA didn’t specify what services had to be covered. Instead, it delegated that task to three agencies: the U.S. Preventive Services Task Force (USPSTF); the Health Resources and Services Administration (HRSA), and the Advisory Committee on Immunization Practices (ACIP).
The USPSTF covers a broad range of recommendations for a wide variety of health risks. The HRSA issues guidance for preventive care and screening for infants, children, adolescents, and women. The ACIP, as its name suggests, issues guidance for immunizations.
The ACA requires health plans to cover those USPSTF recommendations that have an “A” or “B” rating. A list of USPSTF “A” and “B” recommendations can be found here.
On September 7, 2022, a Texas federal district court judge found that the ACA requirement to cover USPSTF “A” and “B” rated preventive services was unconstitutional. The court upheld the requirement to cover preventive treatment recommended by the HRSA and ACIP. The court also ruled that employers with religious objections did not have to cover PrEP drugs for the prevention of HIV as recommended by the USPSTF. However, the judge did not decide at that time what the appropriate remedy should be under his ruling. On March 30, 2023, the court decided that remedy should be to invalidate the USPSTF coverage requirements for all insurers and health plans nationwide. The government has appealed that decision and requested a stay of the district court’s order pending appeal.
In the meantime, the Department of Labor has issued initial guidance on how the court’s decision affects health plans and insurers. The guidance makes the following points:
- The Braidwood decision only affects items and services given an “A” or “B” recommendation by the USPSTF on or after March 23, 2010. Items and services given an “A” or “B” recommendation by the USPSTF before March 23, 2010, must still be covered. The Department anticipates issuing further guidance with respect to the pre-march 10, 2010, recommendations.
- The Braidwood decision does not prevent plans from covering any preventive services that it wishes to cover.
- There is some overlap between the USPSTF recommendations and those issued by the HRSA and ACIP. Plans must continue to cover items and services recommended by the HRSA and the ACIP even if they were also recommended by the USPSTF.
- Plans that wish to make changes in their coverage of preventive services are reminded that they are still required to follow the rules regarding Summaries of Benefits and Coverage (SBCs). Briefly, they require plans to provide notification of the change at least 60 days before the date the modification becomes effective. In addition, plans subject to ERISA will need to provide a Summary of Material Modifications within 60 days after the change in benefits is adopted.
- High Deductible Health Plans may still provide coverage for items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010, on a first dollar basis before the annual deductible has been met.
- The guidance specifically mentions that the obligation to cover COVID-19 vaccines and their administration remains in effect as this is a recommendation from ACIP.
Plan sponsors should be cautious about making changes to their health plans at this time. Any such changes may have to be rolled back as the case makes its way through the courts. The appeals court may issue a stay of the district court order; in that event, the USPSTF preventive care requirements will remain in effect during the pendency of the appeal. The court may ultimately reverse or modify the district court’s order. And whoever loses in the court of appeals will likely seek review of the case by the Supreme Court.
The information and content contained in this blog post are for general informational purposes only, and does not, and is not intended to, constitute legal advice. As always, for specific questions concerning your health and welfare plan, or for help in operating your plan during the current COVID-19 crisis, please consult your own ERISA attorney or professional advisor.