Preventative Services

It's been a whopping nine months since the last time I wrote anything about the seemingly never-ending Braidwood v. Becerra lawsuit which threatens to not only end many of the ACA's zero-cost preventative services, but which could also throw all sorts of regulatory authority into turmoil depending on what precedents it sets.

Over at CHIRblog, Sabrina Corlette has a refresher on this case and what's at stake:

On March 30, 2023, a federal district court judge issued a sweeping ruling, enjoining the government from enforcing Affordable Care Act (ACA) requirements that health plans cover and waive cost-sharing for high-value preventive services. This decision, which wipes out the guarantee of benefits that Americans have taken for granted for 13 years, now takes immediate effect.

via the Centers for Medicare & Medicaid Services (CMS):

The Departments of Health and Human Services, Labor, and the Treasury (the Departments) are seeking public input on how best to ensure coverage and access to over-the-counter (OTC) preventive services, including the benefits of requiring most health insurance plans to cover these services at no cost and without a prescription by a health care provider. This new Request for Information (RFI) solicits comment on access to a range of OTC items recommended by experts for preventive care that can be purchased without a prescription, including contraceptives, tobacco smoking cessation products, folic acid during pregnancy, and breastfeeding supplies.

Last week Amy Lotven of Inside Health Policy noted that the 5th Circuit Court panel was trying to come up with some sort of stopgap solution to the ongoing Braidwood v. Becerra lawsuit until such time as the case winds its way up to the U.S. Supreme Court. 

As Lotven reported:

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.

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:

There's been another development in the long, winding saga of the Kelley / Braidwood v. Becerra federal lawsuit, which seeks to strike down the Affordable Care Act's preventative services provisions requiring health insurance providers to cover a long list of preventative healthcare services at no out of pocket cost to enrollees.

For the full backstory behind this case (and why a plaintiff win against the government here would be far more devastating than "just" the specific provisions being struck down), read my prior post (with many updates) on the case.

The most recent development prior to today came on March 30th, 2023:

Judge Reed O'Connor STRIKES DOWN a major provision of the Affordable Care Act requiring insurers to cover a vast amount of preventive care cost-free (contraception, cancer screening, PrEP, a ton of pregnancy-related care). The ruling applies nationwide.

via the Massachusetts Health Connector:

The Massachusetts Health Connector Board of Directors voted on Thursday, May 11, to ensure that health insurance plans used by five million Commonwealth residents to meet the state’s individual mandate continue to deliver high-value preventive services at no cost to consumers. This vote follows a March 2023 decision by a federal District Court in Texas to limit the scope of preventive services covered under the Affordable Care Act.

The proposed regulation amendments guarantee that Massachusetts residents with health insurance plans meeting state Minimum Creditable Coverage (MCC) standards will continue to receive key preventive services like cancer screenings, HIV prevention, and cholesterol-lowering medication without cost-sharing. These proposed regulation amendments protect coverage standards that are current practice in the Commonwealth.

My ongoing Braidwood v. Becerra post has grown so long and has had so many updates that it was becoming unwieldy, so I started a new post.

Kaiser Family Foundation Vice President Cynthia Cox posted a thread on Twitter yesterday which gives an brief overview of which of the preventative services required to be covered at no cost to the enrollee by the Affordable Care Act are actually threatened by yesterday's ruling by U.S. District Judge Reed O'Connor.

Before I get to that, it's important to clarify where the list of services comes from. Again, via the Kaiser Family Foundation:

UPDATE 7/26/22: Apparently this case is scheduled to be heard by TX District Judge Reed O'Connor today.

UPDATE 9/07/22: Annnnd there it is, via SCOTUS, legal & political journalist Chris Geidner:

BREAKING: US District Judge Reed O’Connor in Texas rules that requiring employers to provide coverage for PrEP drugs (preventing the transmission of HIV) violates the religious rights of employers under federal law (RFRA).

...O’Connor also rules that the U.S. Preventive Services Task Force (PSFT) violates the Appointments Clause because he finds the members are officers of the United States not appointed properly.

...O’Connor rejects several other claims, as to Appointments Clause claims and as to the nondelegation doctrine.


Over at STAT News, Nicholas St. Fleur and Hyacinth Empinado have an interesting piece about why he (St. Fleur) gave himself a colonoscopy for his 30th birthday:

The passing of Chadwick Boseman from colorectal cancer at the age of 43 devastated so many people who looked to the “Black Panther” star and saw a hero. His death last year was particularly impactful for me, a young Black man whose mother had been diagnosed with the disease at age 34.

My mom was fortunate. She had a colonoscopy that spotted the cancer early and helped save her life.

Still, because of my family history, I am at an increased risk of developing colorectal cancer. Black men are also at higher risk as well. So just days before my 30th birthday, I underwent my first colonoscopy.

Kelley v Becerra

Updated to include extra details from Harris Meyer, who wrote about the case back in March.

Yesterday morning in my post celebrating the Supreme Court throwing out the insanely stupid CA v. TX lawsuit (previously TX v. Azar or, as I called it, Texas Fold'em), which threatened to strike down the entire Affordable Care Act, I noted that...

So, are there any MORE challenges to the ACA? Of course. As Katie Keith notes over at Health Affairs:

As the law hangs in the balance, other ACA litigation is proceeding. The Supreme Court has been asked to hear appeals by health insurers over whether they are entitled to fully recover unpaid cost-sharing reduction payments. It is not year clear whether the Court will agree to do so; if it does, the appeals would be heard next term. Other lawsuits remain pending before district and appellate courts over the scope of the ACA’s contraceptive mandate, the preventive services mandate, and Section 1557, among other issues.