Important New Guidance on Preventive Care
The gist of this court ruling is that it has ruled it unconstitutional to require insurers/payers cover 100 percent coverage of some preventive services and how those services are determined. However, this decision is expected to be appealed by the Biden Administration and it didn’t have any cures for how to fix it (which the judicial branch isn’t supposed to do anyways). In addition, state insurance regulations and laws have adopted these standards across insurance products and, therefore, if any changes are coming on this front, it will be delayed as states adjust laws and re-evaluate plans for the upcoming year.
The following information was originally published by Larry Grudzien, Attorney at Law.
On April 13, 2023, the Departments of Labor, Health and Human Services (HHS), and the Treasury (collectively, the Departments), along with the Office of Personnel Management released Frequently Asked Questions (FAQs) regarding implementation of the Affordable Care Act and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), in light of the recent court decision inBraidwood Management Inc. v. Becerra. These FAQs answer questions to help people understand the law and promote compliance.
Coverage of Preventive Services
Coverage of preventive services was required under non-grandfathered group health plans and insurers offering non-grandfathered group or individual health insurance coverage to cover, without the imposition of any cost-sharing requirements, the following items or services:
- Evidence-based items or services that have in effect a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force (USPSTF) with respect to the individual involved, except for the recommendations of the USPSTF regarding breast cancer screening, mammography, and prevention issued in or around November 2009;
- Immunizations for routine use in children, adolescents, and adults that have in effect a recommendation from the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC) with respect to the individual involved;
- With respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA); and
- With respect to women, such additional preventive care and screenings not described in PHS Act section 2713(a)(1) as provided for in comprehensive guidelines supported by HRSA.
The District Court’s Decision in Braidwood
On March 30, 2023, the United States District Court for the Northern District of Texas issued a final judgment in the case Braidwood Management Inc. v. Becerra (Braidwood decision). The court held that the USPSTF’s recommendations operating in conjunction with Affordable Care Act Section 2713(a)(1) violate the Appointments Clause of Article II of the United States Constitution and are therefore unlawful. The court vacated any and all actions taken by the Departments to implement or enforce Affordable Care Act Section 2713(a)(1)’s preventive service coverage requirements in response to an “A” or “B” recommendation by the USPSTF on or after March 23, 2010, and enjoined the Departments from implementing or enforcing Affordable Care Act Section 2713(a)(1)’s preventive service coverage requirements in response to an “A” or “B” rating from the USPSTF in the future.
The Departments disagree with the District Court’s ruling and are considering all available options in consultation with the Department of Justice; the Department of Justice filed a notice of appeal on March 31, 2023, and a motion for a stay on April 12, 2023.
What do Frequently Asked Questions (FAQs) indicate?
The Departments are issuing these FAQs to provide initial guidance on how the Braidwood decision affects the requirement to cover preventive services without cost sharing under Affordable Cart Act Section 2713. The Departments anticipate issuing additional guidance in the future to further address plans’ and issuers’ obligations under Affordable Care Act Section 2713(a)(1) in light of the Braidwood decision.
- The Braidwood decision only applies to items and services required to be covered by plans and insurers without cost sharing in response to an A or B recommendation by the United States Preventive Service Task Force.
- The Departments strongly encourage plans and insurers to continue to cover such items and services without cost sharing.
- The Braidwood court did not enjoin enforcement of the items or vacate it implementing regulations and guidance related to immunizations and preventive care and screening.
- The Braidwood decision generally does not affect the application of state laws that require health insurers offering group or individual health insurance coverage to provide coverage without cost sharing of items and services recommended with an “A” or “B” rating.
- Plans and insurers are not required to make any changes to coverage or cost sharing as a result of the Braidwood decision, and the Departments strongly encourage plans and insurers to continue to cover, without cost sharing, items and services affected by the court’s decision.
- An HDHP may provide preventive care benefits without a deductible or with a deductible below the minimum annual deductible under Code Section 223(c)(2)(C).
- The Braidwood decision does not change the requirement to cover without cost sharing immunizations.
Contact your client relations advisor with any questions.