By Christy Abend
On March 30, 2023, U.S. District Judge Reed O’Connor ruled that preventive care recommendations made by the U.S. Preventive Services Task Force (USPSTF) no longer need to be covered nationwide by private health insurers at zero cost to patients. This ruling applies specifically to preventive services recommended by the USPSTF with an “A” or “B” rating that were made after 2010 when the Affordable Care Act (ACA) was enacted. Judge O’Connor’s latest judgment on Braidwood Management v. Becerra confirms a previous ruling in September 2022 where he found the mandate to cover pre-exposure prophylaxis (PrEP), a medication taken to prevent HIV, violated the plaintiffs’ religious rights under the Religious Freedom Restoration Act (RFRA). The Department of Health and Human Services (HHS) has appealed this ruling.
This means that effective immediately, private health plans no longer are mandated to cover a range of preventive services, including items such as:
Screening for anxiety screening for children aged 8 to 18 years
Screening for colorectal cancer in adults aged 45 to 49 years
Medications to reduce the risk of breast cancer for women at increased risk aged 35+
A full list of the “A” and “B” rated USPSTF recommendations is available here.
Judge O’Connor ruled that because members of the USPSTF are not appointed by the president or confirmed by the Senate, they have no federal jurisdiction in mandating coverage of preventive services. If the ruling is not paused or overturned on appeal, insurers will be able to charge patients copays and deductibles for such services in new insurance plans and employers will have the choice to increase costs for some preventive services.
So, if Judge O’Connor’s ruling stands, millions of people may have to pay more for preventive care and, as a result, may ultimately opt to not to receive these preventive services. The Office of the Assistant Secretary for Planning and Evaluation (ASPE) found prior to this ruling that more than 150 million people with private insurance – including 58 million women and 37 million children – could at the time receive preventive services without cost-sharing under the ACA.
The ruling applies to USPSTF recommendations made after March 2010, but it does NOT overturn free preventive services like:
Vaccine coverage requirements recommended by the Advisory Committee on Immunization Practices (ACIP)
Women’s preventive health services recommended by the Health Resources and Services Administration (HRSA) that include mammograms, contraception, and breastfeeding support services
Services for children and young adults recommended by Bright Futures
These recommendations were upheld by Judge O’Connor in the earlier September 2022 ruling.
With the timing of the ruling coming after the first of the year, coverage changes will not necessarily happen immediately. In many cases, health plan contracts are in place for the calendar year, and so you will likely not want to make changes to employee coverage or costs midyear.
And since attorneys for the Department of Health and Human Services (HHS) have already filed a notice of appeal, it is possible that a stay could be awarded and this ruling could potentially be overturned. With this in mind, making significant plan and pricing changes may be premature until more is resolved.
This ruling applies to the federal mandate. Various states have implemented their own individual healthcare mandates and more may create laws to protect preventive coverage within their state borders, in reaction to this ruling. If this is the case, and your company has locations or employees in multiple states, benefits administration could become even more complex. It is important to stay on top of the regulations in each state where your employees reside and physically work. Not adhering to these rules can lead to potentially costly errors and misconceptions, so it’s vital that you not only stay current, but stay ahead of updates and requirements.
Equifax Workforce Solutions can help you better manage your ACA efforts, including helping you calculate affordability, employee eligibility, tracking offers of coverage, reporting, and more. Learn about more changes for 2024 in our blog Cost of ACA Employer Mandate Penalties to rise for 2024 and visit our ACA HQ page for more information.
We know keeping up with the ACA can be challenging and the risks for getting it wrong can be significant. Simply put, the stakes are higher now, the costs for failure greater and staying up to date with ACA regulations is something HR professionals typically cannot afford to face alone. Support from the C-suite is necessary, and it all starts with a conversation.
While HR professionals are well aware of the ramifications of failing to comply, many C-suite executives are not. If this is true in your company, we’ve got strategies to help you have this important conversation with your C-suite. Check out our guide to help get the conversation started.
The information provided is intended as general guidance and is not intended to convey any tax, benefits, or legal advice. For information pertaining to your company and its specific facts and needs, please consult your own tax advisor or legal counsel. Equifax Workforce Solutions provides services that can help employers reduce their compliance risks. Details on our provision of these services and related support will be contained in your services agreement. Links to sources may be to third party sites. We have no control over and assume no responsibility for the content, privacy policies or practices of any third party sites or services.