In response to Braidwood Mgmt. Inc. v. Becerra, a recent case striking down part of the Affordable Care Act (ACA) preventive services mandate, the US Departments of Labor, Health and Human Services, and the Treasury (collectively, the Departments) issued a set of Frequency Asked Questions (FAQs) anticipating and responding to questions from stakeholders. In the FAQs (available here), the Departments also clarified that they disagree with the Braidwood ruling and strongly encourage plans and issuers to continue to cover preventive services without cost sharing.
Braidwood involves a challenge to Section 2713 of the Public Health Service (PHS) Act (as added by the ACA), which among other things requires non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage to cover certain preventive services without cost sharing. The case was brought by a Christian-owned business that objected to covering pre-exposure prophylaxis (PrEP)—a medication that prevents the acquisition of HIV. PrEP was elevated to the level of a preventive service in June 2019 when it was assigned “Grade A” by the United States Preventive Services Task Force (USPSTF).
On March 30, 2023, the United States District Court for the Northern District of Texas issued a final judgment in Braidwood, vacating a portion of the ACA preventive services mandate. The court had previously determined that certain portions of the mandate were unconstitutional and violated religious rights but reserved a decision regarding remedies. The most recent decision held that the USPSTF’s recommendations violate the Appointments Clause of Article II of the United States Constitution and are therefore unlawful. The court’s order vacated all actions taken by the Departments to implement or enforce the ACA’s preventive services mandate, as recommended by USPSTF on or after March 23, 2010. The ruling applies nationwide and effectively freezes the list of preventive measures in place as of March 23, 2010. The US Department of Justice filed a notice of appeal on March 31, 2023, and a motion for a stay on April 12, 2023.
THE DEPARTMENTS’ FAQS
The FAQs clarify the following:
Plans and issuers must continue to provide coverage, without cost sharing, for items and services recommended with an “A” or “B” rating by the USPSTF before March 23, 2010. Noting that “the USPSTF has updated a significant number of the recommendations since March 23, 2010,” the Departments anticipate providing additional guidance on the subject;
Braidwood does not preclude plans and issuers from continuing to provide the full extent of preventive services coverage without cost sharing, including items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010, and the Departments strongly encourage continuation of such coverage;
Plans and issuers must continue to cover immunizations recommended by the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC) and preventive care and screenings provided for in comprehensive guidance supported by the Health Resources and Services Administration (HRSA), which include, but are not limited to, immunizations recommended by ACIP (including any such COVID-19 vaccines), as well as contraceptive services, breastfeeding services and supplies, cervical cancer screening, and pediatric preventive care recommended by HRSA, without cost sharing, consistent with all applicable regulations and guidance. The Departments also noted that some of these recommendations and guidelines overlap with items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010, in which case plans and issuers must provide coverage without cost sharing;
Until further guidance is issued, items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010, will be treated as preventive care for purposes of high-deductible health plan coverage and Health Savings Account eligibility; and
Braidwood does not affect state laws that require coverage without cost sharing of items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010; thus, plans and issuers generally must continue to comply with any applicable state laws.
The FAQs also address the question of the timing of changes required by the ruling, explaining that to the extent a plan or issuer is permitted and elects to make changes to coverage, the plan or issuer must comply with all applicable notice requirements (e.g., advance notice for changes to Summaries of Benefits and Coverage).
The FAQs clarify that plans and issuers are not required to make any changes to the preventive services that they cover without cost sharing as a result of Braidwood, and the Departments strongly encourage plans and issuers to continue covering the full scope of preventives services. Any plans or issuers considering changes to their preventive services coverage should tread carefully to ensure that they do not inadvertently violate the surviving parts of the ACA preventive services mandate and/or any applicable state laws. In addition, it remains to be seen if Braidwood will survive on appeal.
If the Braidwood decision survives, plans would no longer be required to cover without cost sharing any service that was first recommended by USPSTF on or after March 23, 2010 (and is not also recommended by another group like HRSA or ACIP). For a summary of the preventive services effected by the decision, please see “Major Additions and Revisions to USPSTF Recommendations Made On or After March 23, 2010” published by the Kaiser Family Foundation (available here).
For any questions, please contact your regular McDermott lawyer or one of the authors.