In April, the U.S. Supreme Court will hear arguments in a case with serious health and financial consequences for millions of Americans in every state. At issue is whether the Affordable Care Act’s requirement that insurers cover preventive care at no cost to patients is constitutional.
If the ACA’s no-cost preventive-care provision is ruled unconstitutional, Americans would need to pay for such care or forgo it, according to the Center for Value Based Insurance Design (V-BID) at the University of Michigan.
For journalists, the case of Kennedy v. Braidwood Management has the potential to cause millions of Americans to avoid preventive-care services, especially those who have financial barriers to care, such as low-income Americans, Black people, Latino people, Asian American people, and Pacific Islander and American Indian/Alaska Native populations, the V-BID center said. If Americans avoid preventive care due to cost, health outcomes will decline and racial disparities will rise, the center added.
On Feb. 24, SCOTUS said it would hear arguments on April 21 in the case of Robert F. Kennedy Jr., the new Secretary of Health and Human Services, versus Braidwood Management. Previously, the case was called Braidwood Management versus Becerra, the former HHS secretary.
And on Feb. 18, the federal Department of Justice filed a brief saying it would defend the ACA requirement that insurers cover certain preventive services without cost sharing, as Alice Miranda Ollstein reported for PoliticoPro.
In its brief, the DOJ noted that one of the legal questions is whether members of the U.S. Preventive Services Task Force (USPSTF) are validly appointed as so-called “inferior officers” or are principal officers whose appointments are unconstitutional because the president did not appoint them and the U.S. Senate did not confirm them.
“The answer is straightforward: Task Force members are inferior officers, because the Secretary of HHS — a quintessential principal officer — remains responsible for final decisions about whether Task Force recommendations will be legally binding on insurance issuers and group health plans,” the brief reads, noting that the secretary can remove task force members for any reason.
Also, the DOJ argued that Kennedy could order the task force to study a particular service or medication, remove any volunteer members who don’t comply, ignore or delay the review of their recommendations, or ensure they never see the light of day, Ollstein wrote.
“If the Trump administration’s arguments carry the day, preventive care would remain covered but would throw into doubt what qualifies,” she added.
Why this case matters
A private company in Katy, Texas, Braidwood Management says it has religious objections to Section 2713 of the ACA, one of the most popular provisions in the law.
That section allows hundreds of millions of Americans to purchase health insurance covering recommended preventive services, including contraceptives, the human papillomavirus (HPV) vaccine, pre-exposure prophylaxis (PrEP) to prevent HIV transmission, and counseling for sexually transmitted disease and drug use, as we previously reported.
Among other preventive services at risk are behavioral counseling, immunizations, and screenings for cancer, diabetes and hypertension, according to the V-BID center. Section 2713 has increased the use of preventive services, improved health outcomes, and reduced racial disparities in access to care for millions of Americans.
In a friend-of-the-court brief filed Feb. 25, attorneys general from 21 (mostly blue) states and the District of Columbia made a similar point. “Before the ACA, many insurers charged women higher rates and excluded numerous women’s health services from coverage,” the AGs noted.
Section 2713 affects millions
In the ACA, Section 2713 requires employers and almost all private health plans (except those that are grandfathered under the ACA) to cover more than 50 preventive services at no cost, including those that have an “A” or “B” rating from the Preventive Services Task Force.
Two other agencies recommend preventive services: the CDC’s Advisory Committee on Immunization Practices, and the federal Health Resources and Services Administration which recommends preventive care and screenings for women and children, according to a 2023 Health Affairs article.
Most coverage of this issue refers to an estimate of some 150 million Americans who have coverage for preventive care at no cost. Journalists should note, however, that in 2020, an estimated 232.6 million Americans had health insurance that covered preventive services with no cost-sharing, according to this report from the HHS Assistant Secretary for Planning and Evaluation (ASPE), Office of Health Policy.
Since then, more Americans have gained private health insurance, bringing ACA coverage to record levels, as Amanda Seitz reported for the Associated Press.
Included among the 232.6 million Americans were 151.6 million people with private health insurance (58 million women, 56.5 million men and 37 million children) and 61 million adults who have Medicare and 20 million adults covered under Medicaid, the ASPE report noted.
High-value services at no cost
In January, the Preventive Services Task Force recommended screening for osteoporosis to prevent fractures in women ages 65 or older. The task force also recommended screening for fractures for postmenopausal women younger than 65 years with one or more risk factors for osteoporosis.
Those two recommendations are important because they were added this year, 15 years after Congress passed the ACA, said V-BID Center Director A. Mark Fendrick, M.D. The date is significant because Braidwood’s lawyers have argued that the Task Force’s recommendations with an “A” or “B” rating are unconstitutional because they were added after Congress passed the ACA in 2010.
Other examples of the importance of this case are screening exams for breast and colorectal cancer, Fendrick commented. Last year, the task force recommended that women get screened for breast cancer every other year starting at age 40 rather than age 50. The recommended age to begin colorectal cancer screening was lowered from age 50 to 45. Those two recommendations affect about 40 million Americans, he added.
Looking ahead
If SCOTUS rules in favor of Braidwood’s position, research from the Employee Benefit Research Institute and the V-BID Center showed that some people with employer-sponsored health insurance would pay substantial amounts for certain preventive services, but employers would not get huge savings due to relatively low spending on preventive care, Fendrick commented.
“I hope that the lack of big savings to payers and the popularity of no-cost preventive care will deter employers and health plans from reimposing consumer cost-sharing, even if the requirement becomes voluntary,” Fendrick concluded.
Resources
- V-BID Center resources on Braidwood, background, impact of Section 2713, legal challenges, future directions.
- “Recent court rulings imperil public health and patient protections,” AHCJ Health Beat, July 29, 2024.
- “Braidwood v Becerra: The Threat to Preventive Services Just Got Worse,” Health Affairs, June 24, 2024.
- “How to cover the case that could kill patients’ access to no-cost preventive services,” AHCJ Health Beat, July 12, 2023.
- “Imposing Cost Sharing on Preventive Services Significantly Impacts Expenditures for Eligible Enrollees but Does Not Substantially Reduce Aggregate Employer Health Care Spending: Implications of Braidwood Management Inc. v. Becerra,” EBRI Fast Facts, June 23, 2023.
- Explaining Litigation Challenging the ACA’s Preventive Services Requirements: Braidwood Management Inc. v. Becerra, KFF, May 15, 2023.
- “Webinar: Covering the lawsuit that could limit free preventive care,” AHCJ Health Beat, May 10, 2023.
- Clinical Implications of the Braidwood Ruling: Use of Pre-ACA Task Force Recommendations, Health Affairs, May 2, 2023.
- “Resources for covering the ACA preventive care ruling in Texas,” AHCJ Health Beat, Sept. 15, 2022.
