An agreement was reached this week in a lawsuit regarding preventive benefits, allowing cost-free coverage of services such as annual wellness visits and many cancer screenings to continue essentially unchanged for the time being.
The agreement was in response to a lawsuit brought in federal court in Texas, Braidwood Management v. Becerra, challenging the Affordable Care Act’s (ACA’s) requirement that most private insurance cover certain preventive services at no cost to patients. On March 30, 2023 the court struck down as unconstitutional part of the ACA’s requirement for no-cost coverage of preventive services recommended or updated by the U.S. Preventive Services Task Force (USPSTF) on or after March 23, 2010. The court also found that the requirement to cover PrEP medications for HIV prevention violates the rights of certain employers under the Religious Freedom Restoration Act. The federal government appealed to the U.S. Court of Appeals for the 5th Circuit. The agreement reached this week by the parties allows most cost-free coverage of preventive services to continue while the litigation continues; in the absence of this agreement, the district court’s ruling could have taken effect nationwide.
Analysis of this latest challenge to the ACA finds that it would likely not affect Medicare’s cost-free coverage of preventive services. The challenge in Braidwood is based on the argument that because USPSTF members are not appointed by the President and confirmed by Congress, their recommendations violate the constitution’s Appointments Clause. By contrast in Medicare, the Health & Human Services Secretary, who is appointed by the President and confirmed by Congress, authorizes coverage for new preventive services through the National Coverage Determination process. Those services are thus not affected by the Appointments Clause challenge found in Braidwood. Additional Medicare preventive services have been made available to beneficiaries without cost-sharing through the agency’s rule-making process, which would also be unaffected by the Appointments Clause challenge in this case.
Though it appears that Medicare coverage of preventive services like screenings and vaccines would not be limited by this challenge, the Center for Medicare Advocacy strongly opposes striking down cost-free coverage for preventive services in other types of health insurance. Robust preventive care is essential for good health outcomes, health equity, and improved quality of life. Additionally, preventing and treating conditions early in the progression of the condition reduces health care costs. Of particular concern is the pre-Medicare older adult population who could see increased cost-sharing for preventive services under this challenge. There are clear financial implications for the Medicare program if those individuals cannot access free preventive care and therefore forgo screenings and other services, enrolling in Medicare years later when they have more costly advanced diseases and conditions.
The Center for Medicare Advocacy will continue to monitor this, along with other ACA challenges, to assess the broader health care implications. For more information: KFF Issue Brief: https://www.kff.org/womens-health-policy/issue-brief/explaining-litigation-challenging-the-acas-preventive-services-requirements-braidwood-management-inc-v-becerra/
June 15, 2023 – K. Kertesz