The United States District Court for the Northern District of Texas ruling in Braidwood prevents federal enforcement of any preventive care no-cost coverage requirements recommended with an “A” or “B” rating by the United States Preventive Services Task Force (USPSTF) on or after March 23, 2010 (i.e., after the passage of the Affordable Care Act). USPSTF is one of three agencies that determines the preventative care that must be covered without cost-sharing; the other two are the Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA), whose recommendations are not impacted by this ruling. The court’s decision as to the USPSTF was based on the finding that its members were not appointed in accordance with the Appointments Clause of the United States Constitution, which rendered all of the USPSTF’s preventive care recommendations unlawful. Preventive services affected by this ruling include HIV pre-exposure prophylaxis (PrEP), drugs that reduce the risk of breast cancer, lung cancer screening, and hepatitis C screening (a complete list is available here). The Departments have filed a notice of appeal and a motion for a stay in the Fifth Circuit.
The Braidwood decision created uncertainty regarding what precisely plans were required to cover under federal mandates. On Friday, the Departments issued a FAQ document to provide “initial guidance” on preventive services requirements post-Braidwood. The guidance provides that plans must continue to cover all items and services recommended with an “A” or “B” rating by the USPSTF prior to March 23, 2010 without cost-sharing. The FAQs also make clear that the items and services recommended by ACIP and HRSA must still be covered without cost-sharing, regardless of whether they were also recommended by the USPSTF on or after March 23, 2010. Examples include immunizations (including COVID-19 vaccines), contraceptive services, and pediatric preventive care. The FAQs did not address, however, how Braidwood impacts services that the USPSTF recommended before March 23, 2010 but modified the recommendation after this date. The Departments anticipate providing future guidance on this issue.
In the FAQs, the Departments strongly encouraged plans and issuers to continue to cover all preventive services (including those where Braidwood invalidated the mandate) without cost sharing, since the ruling does not preclude continued coverage. Federal employees, as one example, will continue to have no-cost coverage of all preventative services under the Federal Employee Health Benefits program. In addition, although the Departments can no longer enforce the coverage requirements of the Public Health Service (PHS) Act section 2713(a)(1), states may require state-regulated commercial plans to continue to cover the services impacted by Braidwood. Coverage mandates that apply to Medicaid Managed Care Organizations will similarly be left to state discretion due to this decision, since states typically must require preventative care coverage in line with the federal requirements for commercial plans that Braidwood limited. This may result in a patchwork of disparate state law coverage mandates for certain plans.
The recent guidance further clarifies that plans are not required to make any mid-year policy or cost sharing changes to reflect the Braidwood decision, and may be required to cover the full extent of preventive services during the policy year under other legal and contractual requirements, but if they elect to make changes, they must notify members pursuant to applicable law. The FAQs also provide that all preventive services, including those impacted by the Braidwood decision, may be covered under high deductible health plans before the deductible is met.
The authors are closely following developments regarding Braidwood’s impact on federal preventative care mandates. Please contact them with any questions.
Client Alert 2023-091
