On March 30, 2023, U.S. District Judge Reed O’Connor issued his opinion finding that health plans no longer need to cover certain ACA Preventive Services; specifically, those recommended by the Preventive Services Task Force, including pre-exposure prophylactic drugs and sexually transmitted disease screenings, a myriad of cancer screenings and many other preventive services. A full list of the preventive services recommended by the Preventive Services Task Force can be found here. The preventive services recommended by the Advisory Committee on Immunization Practices and the Health Resources and Services Administration are not affected by Judge O’Connor’s decision.
As you may recall certain preventive services that were required to be covered without cost to the patient was challenge. See past Benefit Beat article. Initially, Judge O’Connor found that the ACA’s requirement to cover the recommended preventive services violated the Appointments Clause under Article II of the Constitution. Noting that the U.S. Preventive Services Task Force (USPSTF) was required to be free from political conflict under its authorizing statute. He opined that USPSTF members were not subject to the direction of the Secretary of the Department of Health and Human Services (HHS). Since members of the USPSTF are not appointed by the president and then confirmed by the Senate, but instead are named by the director of the Agency for Healthcare Research and Quality or supervised or directed by a principal office, their appointment was unconstitutional and therefore they have no authority to mandate coverage. In this ruling, Judge O’Connor enforced his initial position on the violation of the Appointments Clause. In addition, specific to the pre-exposure prophylactic drugs, Judge O’Connor finds it to be violative of the Religious Freedom and Restoration Act.
Please note that even if plans are ultimately able to change coverage for preventive services, any such changes would likely not take effect until plan anniversary dates. Certainly, plans can continue to cover these services.
This isn’t the end of the challenges, and this decision has been appealed to the Fifth Circuit Court of Appeals. This continues to be a developing issue and we will keep you updated of any new developments.
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