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  • Washington Highlights

    Texas Judge Strikes Down ACA Preventive Services Coverage Requirement  

    Gayle Lee, Director, Physician Payment & Quality
    For Media Inquiries

    On March 30, U.S. District Judge Reed O’Connor of the Northern District Of Texas  issued a ruling in the case of Braidwood Management Inc. v. Becerra (formerly Kelley v. Becerra) striking down a key provision of the Affordable Care Act (ACA) requiring private health insurance plans cover certain recommended preventive health care services without any patient cost-sharing. Examples of these services include screenings, behavioral health counseling, and medications that can prevent the onset or worsening of certain health conditions.  

    The preventive services plans must cover under the ACA are determined by recommendations from the U.S. Preventive Services Task Force (PSTF), the Advisory Committee on Immunization Practices (ACIP), and the Health Resources and Services Administration (HRSA).  

    The plaintiffs asserted that the ACA’s preventive services requirements are unconstitutional in several regards. Because members of the PSTF are “officers of the United States” appointed by the Agency for Health Care Research and Quality, rather than the president or the Health and Human Services (HHS) secretary, they argued that the requirement for plans to cover their recommended services violates the Appointments Clause of the U.S. Constitution. O’Connor agreed with this argument but determined that because the recommendations of the ACIP and HRSA are subject to approval by the HHS secretary, the requirement to cover services recommend by them does not violate the Clause. The plaintiffs also argued that the requirement for self-funded plans to cover PrEP, an HIV preexposure prophylaxis regimen, violates the Religious Freedom Restoration Act. O’Connor agreed, writing, “compulsory coverage for those services violates their religious beliefs by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.” 

     The rulings would eliminate the requirement to cover, without cost sharing, the preventive services recommended by the PSTF . Examples of these services include screenings for breast cancer, lung cancer, cervical cancer, and hypertension. It does not apply to preventive health care services recommended by the PSTF prior to the signing of the ACA on March 23, 2010, or to preventive care services recommend by ACIP and HRSA. A list of services impacted by this decision is available here.  

    The AAMC, along with the American Public Health Association and 20 health policy experts, submitted an amicus brief to the court in February 2022 supporting the provision in the ACA that allows for coverage of preventive health services at no cost to consumers. In July 2022, the AAMC joined the American Medical Association and 60 other leading medical organizations in a joint statement expressing concern that the lawsuit could jeopardize coverage of preventive health services for individuals with private health insurance [refer to Washington Highlights, Aug. 5, 2022]. 

    In September 2022, O’Connor issued a summary judgement in this lawsuit, but that decision only applied to the employers who brought the case [refer to Washington Highlights, Sept. 16, 2022]. This March ruling expands the decision to all employers and insurers nationwide. On March 31, the Biden administration filed a notice of appeal to the 5th U.S. Circuit Court of Appeals in New Orleans.