A federal judge in Texas ruled earlier this week in favor of plaintiffs comprising several employers in the state that argued an employer’s insurance should not be required to cover the cost of pre-exposure prophylaxis (PrEP), used to reduce HIV transmission, when such a requirement violated the employer’s religious beliefs.
The ruling handed down by Judge Reed O’Connor in Braidwood Management v. Becerra (formerly Kelley v. Becerra) has raised concerns for Affordable Care Act (ACA) advocates and other physician groups, not only for HIV patients but for Americans across the country who have benefited from preventive care.
“Patients without adequate health insurance live sicker and die younger … Allowing employers to selectively opt-out of providing evidence-based preventive and screening services would undermine essential consumer protections established by the ACA,” said Ryan Mire, MD, president of the American College of Physicians, in a press statement. “If this ruling stands, it could lead to under-insurance, poorer health outcomes, and potentially discriminatory health benefit packages.”
PrEP is just one of dozens of preventive health services available to more than 150 million Americans for free, without cost-sharing, because of the preventive services requirements in the ACA, said Leslie Dach, CEO and chair of Protect Our Care, an ACA advocacy organization.
One element of the plaintiffs’ argument in this case was that this particular requirement of the law is unconstitutional because members of the U.S. Preventive Services Task Force (USPSTF) are not nominated by the president or confirmed by the Senate, yet they decide which services insurers must cover.
During an online press conference hosted by Protect Our Care, legal experts and others provided perspectives on the ruling, its implications for patients, and the vagaries of the decision.
Just how far-reaching the decision’s impact will be remains an open question, said Katie Keith, JD, director of the Health Policy and the Law Initiative at the O’Neill Institute for National and Global Health Law at the Georgetown University Law Center.
She called the preventive services requirement a section of the law “that we know has worked.” In addition to expanding access to preventive services, “it has narrowed health disparities, and made it easier to access cancer screening and contraceptive care.”
“What we know so far, is that on Wednesday, Judge Reed O’Connor invalidated part of the preventive services requirement under the Affordable Care Act,” and specifically targeted those services that were granted the highest rating — “A” or “B” — from the USPSTF, said Keith.
This includes more than 50 types of services, such as cancer screenings, tobacco cessation, and breastfeeding supports, which patients have benefited from since 2010, she added. (The list also includes screening for obesity, depression, pre-eclampsia, hypertension, and substance use disorders.)
The requirements apply not only to ACA marketplace plans, but to “all non-grandfathered private health plans — including individual, small group, and large group health plans and policies,” according to a recent article in Health Affairs by Keith.
As of Friday morning, Keith noted, O’Connor had not invalidated the requirement to cover immunizations, which are recommended not by the USPSTF but by the Advisory Committee on Immunization Practices or by the Health Resources and Services Administration.
That doesn’t mean these services are necessarily safe, Keith said. O’Connor could attack these provisions later or they could “come under fire on appeal.” But for now, it is the USPSTF’s recommendations that are most at risk.
Keith also clarified that O’Connor’s decision ruled that a single employer, Braidwood Management, “should not have to cover pre-exposure prophylaxis,” because of rights granted under the Religious Freedom Restoration Act.
“That part of the ruling does only apply to this one employer,” she stressed. “But there is a world in which that could get broadened over time.”
“We’re in a little bit of limbo at this moment,” she added. “Is it only limited to these plaintiffs? Is it only limited to Texas? Does it apply nationwide?”
Dach also pointed out that O’Connor “explicitly left open the door … to overturn the free contraceptive mandate that guarantees no-cost contraceptives,” which is particularly important given the recent Dobbs v. Jackson Women’s Health Organization decision, which ended the constitutional right to abortion.
Rep. Bobby Scott (D-Va.) expressed his frustration for the employers who have argued they should not have to cover particular services for their employees.
“Picking and choosing what type of basic care is included in an employer-sponsored plan both discriminates against individuals who need important healthcare, and is antithetical to the way that healthcare insurance works, where everybody shares all the costs,” he said. “If you could pick and choose, then it’s no longer insurance.”
In an extreme example, Scott suggested that some employers might belong to an organization that doesn’t believe in medicine.
“What happens to the healthcare of the employees?” he asked.
As of now, O’Connor is asking for more information from the parties regarding how to move forward. Those responses are due September 16.
“What we do know now, is that these provisions and this care and access to all these incredibly important evidence-based preventive services are at risk in the meantime,” Keith said.
Source: MedicalNewsToday.com
