5th Circuit panel may limit #BraidwoodvBecerra ruling to Texas only??

When we last checked in on the Braidwood v. Becerra federal lawsuit, there was a lot of confusion as to exactly which preventative services mandated by the Affordable Care Act to be covered at no out-of-pocket (OOP) charge to enrollees were supposed to be stricken and which weren't.

As a refresher, here's where the list of services comes from, via the Kaiser Family Foundation:

Under Section 2713 of the ACA, private health plans must provide coverage for a range of recommended preventive services and may not impose cost-sharing (such as copayments, deductibles, or co-insurance) on patients receiving these services.1 These requirements apply to all private plansfully insured and self-insured plans in the individual, small group, and large group markets, except those that maintain “grandfathered” status. In 2019, 13% of workers covered in employer sponsored plans were still in grandfathered plans. The requirements also apply to the Medicaid expansion eligibility pathway.

The required preventive services come from recommendations issued by four expert medical and scientific bodies—the U.S. Preventive Services Task Force (USPSTF), the Advisory Committee on Immunization Practices (ACIP), the Health Resources and Services Administration’s (HRSA’s) Bright Futures Project, and the HRSA-sponsored Women’s Preventive Services Initiative (WPSI). Individual and small group plans in the health insurance marketplaces are also required to cover an essential health benefit (EHB) package—that includes the full range of preventive requirements described in this fact sheet.

As I understand it, O'Connor's ruling strikes down coverage of HIV pre-exposure prophylaxis (aka HIV PrEP) medication as well as all services recommended by one of the above bodies (the USPSTF) made after March 2010 (when the ACA was signed into law).

As Cynthia Cox of KFF explained back in March:

  • Around 100 million people access ACA preventative services per year.
  • Services recommended by the USPSTF before the ACA passed in 2010 will still be covered at no OOP cost.
  • USPSTF services recommended after 2010 could become subject to co-pays/etc.

The Big Prize for the plaintiffs is Judge O'Connor's ruling that HIV PrEP medication can be made subject to co-pays. Their argument was essentially that since they oppose homosexuality on religious grounds, and since some homosexuals develop HIV (as do plenty of heterosexual people, of course), it therefore somehow violates their religion to require HIV to be prevented at no out of pocket cost to other people. O'Connor agreed. It's stupid, but that's where things stood a few months ago.

OK, so that brings us up to today's news, via Amy Lotven of Inside Health Policy:

One judge on the federal appeals court panel considering whether an order blocking HHS from enforcing the Affordable Care Act preventive services coverage mandate should continue to be partially stayed through its appeal is urging the parties to pursue a workable resolution, and legal expert Tim Jost says the panel appeared open to the government’s suggestion the court issue a narrow solution that only applies to insurers in Texas.

...The government appealed the ruling and sought to set aside the parts of the order that apply beyond the plaintiffs in the case, Braidwood v. HHS. The plaintiffs include a Texas business, Braidwood Management, which objects to purchasing insurance that covers the HIV prophylaxis, PrEP, and several individual Texans. On May 15, the Fifth Circuit agreed to a temporary stay that will last until the panel rules on the motion.

In Tuesday’s hearing, Department of Justice attorney Alisa Klein argued that O’Connor failed to consider which party would be most harmed before he issued his March decision, and should have found that the balance of equities overwhelmingly favors the 150 or so million people who rely on coverage with cost-free services.

She added that, despite O’Connor’s decision, there is no requirement for the court to universally vacate a rule due to an Appointments Clause violation.

Klein said the normal response to an unconstitutional statute is to apply a solution for the plaintiffs. One idea, therefore, would be to only prevent HHS from enforcing the mandate in Texas’ market. Under that concept, assuming that there would be a provider willing to sell a plan without the cost-free coverage of PrEP, that plan would be allowed to do so.

In Jost’s view, the panel seemed poised to give the plaintiffs all of the relief they request and seemed amenable to the idea of narrowing the order to apply only to the Texas market.

It would still suck for Texas residents if this ends up being how it plays out, but it would at least limit the damage to around 9% of the total U.S. population.

Of course when it comes to PrEP in particular, if a single carrier offered coverage of it at zero OOP cost while every other carrier charged co-pays, that carrier would quickly be flooded with every potential PrEP patient in the state and would likely see its claims expenses shoot through the roof via adverse selection...so it'd be pretty likely that every carrier would start charging OOP for PrEP if they could do so.

It's also important to again reiterate several points I made in my earlier posts:

  • Most insurance carriers are already legally contracted to keep providing these services through the end of 2023 regardless of this ruling. The question is what happens when January 2024 rolls around. Even within Texas, some carriers might decide to keep covering at least some of these services at no charge regardless, although that's hardly guaranteed (see above).
  • There are currently 14 states (+DC) which mandate the same preventative service coverage without cost sharing to individual market enrollees as the ACA itself: California, Colorado, Connecticut, Delaware, District of Columbia, Maine, Maryland, Minnesota, New Mexico, New Jersey, New York, Oregon, Virginia, Vermont and Washington State. It's conceivable that Texas could pass a similar state-level requirement as well, although that sounds pretty unlikely to me.
  • HOWEVER, as Adrianna McIntyre notes, state-level protections of this nature don't (and in fact, can't legally) apply to self-insured employer plans, and as Michael Capaldo added, some may not apply to fully-insured group plans either. Capaldo says that New York's protections do apply to fully insured group plans but doesn't know the status of this in the other states.