Last month, a federal judge in Texas issued a ruling in Braidwood Management v. Becerra that puts access to no-cost preventive services at risk. Though the case only directly impacts private insurance, it could have far-reaching impacts.
At issue is the Affordable Care Act (ACA) requirement that most private insurance plans cover preventive services without cost-sharing. The plaintiffs assert this provision is unconstitutional and violates religious liberties.
The judge, Reed O’Connor, has been a “go-to” for ACA challengers. In 2018, he issued a deeply flawed ruling finding the entire ACA invalid because Congress zeroed out the tax penalty; the Supreme Court ultimately rejected O’Connor’s arguments and upheld the health law.
In Braidwood, Judge O’Connor again largely sided with the plaintiffs. He agreed with their claim that delegating preventive coverage recommendations to the U.S. Preventive Services Task Force (USPSTF) violated the Appointments Clause of the Constitution. To address this, he struck down required coverage of the affected services: those recommended or updated by USPSTF since the ACA was enacted in March 2010.
Relying on the reasoning in the Supreme Court’s decision in Hobby Lobby, Judge O’Connor separately found the ACA’s requirement to cover PrEP medications for HIV prevention infringes on the plaintiffs’ religious rights under the Religious Freedom Restoration Act.
These rulings are not likely to have immediate widespread consequences. The federal government is appealing to the United States Court of Appeals for the Fifth Circuit and may ask the court to block Judge O’Connor’s decisions while the case plays out. We do not yet know how quickly the litigation will proceed, but it may take some time. Whatever the Fifth Circuit eventually decides, an appeal to the Supreme Court is likely.
Since the preventive services ruling only applies to USPSTF decisions issued since March 2010, if it were upheld it would effectively lock in coverage requirements from 13 years ago. Under this scenario, it would again be up to individual health plans and employers to determine what preventive services to cover and what cost-sharing to charge. This would put access to preventive care at risk for millions of people, worsening disparities, outcomes, and affordability.
Judge O’Connor’s ruling that the plaintiffs do not have to cover PreP is limited to this case. However, because PrEP is a preventive service that was recommended by the USPSTF after 2010, it would be subject to high costs and non-coverage.
Importantly, health coverage will not necessarily change immediately. Health plan contracts are already in place for the 2023 calendar year, and employers do not typically make changes to coverage or costs midyear. While it may be easier for plans to change formularies to allow for cost-sharing with respect to impacted drugs, as noted above, the federal government may seek to prevent the rulings from taking effect pending appeal.
The plaintiffs in Braidwood are only challenging the preventive services required in private health insurance plans, not Medicaid and Medicare.
The National Health Law Program (NHeLP) explains “Braidwood focuses exclusively on 42 U.S.C. § 300gg-13(a)(1), which applies to all private plans, including fully insured and self-insured plans in the individual, small group, and large group markets.”
The Kaiser Family Foundation (KFF) further notes Braidwood does not directly apply to Medicare or Medicaid. “The current litigation is brought by employers and individuals who allege economic and religious harm from the preventive services requirements in private health insurance. Any litigation challenging the preventive services requirements under Medicaid or Medicare would need to be brought by plaintiffs who suffer a tangible harm to establish legal standing.”
The ACA’s preventive care coverage requirement is overwhelmingly popular and impactful, currently reaching 224 million people. Since established, it has increased use of these necessary services, improved health outcomes, and reduced racial disparities in access to care.
The Texas decision unnecessarily threatens these gains. Medicare Rights supports an immediate stay of this decision and encourages the Biden-Harris administration to counter any potential chilling effects. A final ruling could take years; people must know preventive care remains available and affordable in the interim.
We urge policymakers to swiftly and thoughtfully fortify the law, rendering Braidwood and any future challenges moot. The ACA’s preventive services requirement was driven by consistent evidence linking cost-sharing with reduced health care utilization. As millions of people continue to report delaying or forgoing health care due to costs, the relevant congressional intent—and clear need—remains.
For more details about how this ruling impacts no-cost coverage of preventive services, please see the KFF Q&A: Implications of the Ruling on the ACA’s Preventive Services Requirement.
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