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Federal judge ruled that the government system for deciding which preventive services should be covered is unconstitutional

Sept. 23, 2022 (ACP) — A recent federal court ruling in Texas, Braidwood Management Inc. Becerra (formerly known as Kelley v. Becerra), threatens the Affordable Care Act (ACA) requirement that employers cover routine preventive health care services. The �ܼ�����ˮ��̳ is joining other medical societies in warning that this ruling could cause millions of Americans to lose access to preventive services ranging from colonoscopies and mammograms to pap smears and hearing tests.

In early September, a federal judge in Texas ruled that “the Affordable Care Act cannot require a Christian-owned company to cover HIV drugs for its employees because it violated the owners' religious freedom,” The Washington Post reported. “He also declared unconstitutional the government's system for deciding which preventive care services should be covered under the health-care law — a decision that could jeopardize a broad range of no-cost services, including screenings for cancer and heart disease, for millions of Americans.”

“Allowing employers to selectively opt-out of providing evidence-based preventive and screening services would undermine essential consumer protections established by the ACA,” said Dr. Ryan D. Mire, president of ACP. “If this ruling stands, it could lead to under-insurance, poorer health outcomes, and potentially discriminatory health benefit packages.”

ACP stands with critics of the ruling, including dozens of medical societies such as the American Medical Association, American Academy of Pediatrics, American Academy of Family Physicians, American Academy of Neurology, American College of Cardiology and American College of Obstetricians and Gynecologists.

As the medical societies noted in a July 25 statement, an estimated 151.6 million Americans received free preventive care in 2020 alone. “It's well known that cost sharing is a barrier to getting necessary care, especially for people with low incomes,” said Ryan Crowley, an ACP senior associate for health policy. “The ACA requires that most insurance plans cover evidence-based, high-quality preventive services without cost sharing. These services form the core of a comprehensive coverage package, including screenings for cancer, depression, heart disease, obesity and other conditions and treatment for smoking and unsafe alcohol use.”

In the court case, a group of individuals and employers based in Texas makes several arguments. For one, they claim the ACA preventive care coverage requirement is unconstitutional because the members of the U.S. Preventive Services Task Force (USPSTF) are not nominated by the president or approved by the U.S. Senate, Crowley said. They also argue that the requirement to cover certain services like preexposure prophylaxis (PrEP) — a treatment that prevents HIV transmission — violates their religious freedom.

The preventive services requirement applies to most private health plans, ranging from those offered through federal and state marketplaces to those offered by large employers, Crowley explained.

In light of the judge's ruling, “the worst-case scenario is that the ruling altogether eliminates the requirement that insurers cover USPSTF-recommended services without the cost-sharing,” he said. “This could trigger employers to select what services they provide at no cost to the patient. An employee may have to pay a copay for PrEP where they wouldn't have had to before. This was the situation before the ACA, and we don't want to go back.”

According to Crowley, it is still unclear what effect this ruling will have. “The federal district court judge has requested the parties submit more information on how this ruling should play out. If the ruling stands, a federal appeal is likely,” he explained.

For now, ACP will continue to monitor the case and speak up when appropriate. “A cornerstone of helping our patients live healthier, longer lives is ensuring that they are able to access care that can prevent illness, not just treating them after they have already developed a medical condition,” said Mire. “ACP will continue to advocate for improving access to health care for all.”

Back to the September 23, 2022 issue of ACP Advocate