The Fifth Circuit Court of Appeals has issued a decision in a major legal case that observers have said could fundamentally alter the preventive services provision in the Affordable Care Act.
section 2713: eliminating cost-sharing for preventive services
Section 2713 of the Public Health Service Act as amended by the ACA requires non-grandfathered private insurance plans to provide first-dollar coverage for preventive care services. With the intent to include all segments of the population, Congress selected three organizations to determine covered preventive services: the United States Preventive Services Task Force (USPSTF), the Advisory Committee on Immunization Practices (ACIP), and the Health Resources and Services Administration (HRSA).
table 1. recommending bodies for preventive services
| Recommending Entity | Supporting Agency | Recommended Interventions | Appointments |
|---|---|---|---|
|
United States Preventive Service Task Force (USPSTF) |
Agency for Healthcare Research and Quality (AHRQ) |
Clinical preventive services |
By the director of AHRQ |
|
Advisory Committee on Immunization Practices (ACIP) |
Centers for Disease Control and Prevention (CDC) |
Vaccines |
By the HHS Secretary |
|
Health Resources and Services Administration (HRSA) Women’s Preventive Services Guidelines (WPSI) |
N/A (federal agency) |
Women’s preventive health care services |
N/A (federal agency) |
Source: Hughes IV R, Chappel N, and Walters W. 23 Sep 2022. Health Affairs. DOI: 10.1377/forefront.20220922.150344
The USPSTF assigns health care services a letter grade. Services that receive an “A” or “B” rating are considered high-value, and are therefore covered without cost-sharing under Section 2713. The current list of preventive services includes a variety of counseling services, immunizations, and screenings for cancer and treatable chronic diseases, such as diabetes and hypertension.
Impact of the preventive service mandate
Section 2713 is one of the most popular provisions in the ACA, and has increased screenings, improved health outcomes, and reduced racial disparities in health care access. The U.S. Department of Health and Human Services estimates 152 million Americans have access to additional preventive care with zero cost-sharing, especially among Black Americans, Latinos, Asian Americans and Pacific Islanders, American Indians/Alaska Natives, and individuals living in states that expanded Medicaid.
A literature review conducted by members of the V-BID Center concluded that cost-sharing elimination, such as Section 2713 of the Affordable Care Act, leads to increased use of preventive services. Low-socioeconomic groups and those who experience the greatest financial barriers to care appear to benefit the most from cost-sharing elimination. Evidence from studies examining the impact of the ACA indicate increased colon cancer screening, vaccinations, use of contraception, and chronic disease screening.
Today’s Fifth Circuit ruling maintains the status quo (for now) for the highly popular ACA policy that eliminates out-of-pocket costs for many high-quality preventive services – enhancing access for over 200 million Americans – that have been proven to prevent diseases or to detect conditions while they’re still treatable.
This decision provides a welcome reprieve to a possible Braidwood ruling that would limit the removal of cost-sharing to only those preventive services recommended by the USPSTF before the passage of the ACA in 2010. Such a change would have enormous clinical and equity implications.
Dr. A. Mark Fendrick
Legal challenge to 2713: Braidwood v. becerra
On March 30, 2023, Judge Reed C. O’Connor, of the U.S. District Court for the Northern District of Texas, granted Braidwood Management Inc.’s request to block Section 2713 of the Public Health Service Act as amended by the ACA, that requires coverage without cost-sharing of preventive services to which the U.S. Preventive Services Task Force (USPTF) assigns a rating of “A” or “B”. Judge O’Connor ruled that USPSTF recommendations are unconstitutional because the task force members are not appointed by the President and confirmed by the Senate.
Braidwood v. Becerra (formerly Kelly v. Becerra), challenged the requirement that employers must provide coverage for Pre-Exposure Prophylaxis (PrEP) medications that prevent human immunodeficiency virus (HIV) without cost sharing. On September 7, 2022, Judge Reed O’Connor concluded that the requirement to cover PrEP drugs violates the federal Religious Freedom Restoration Act, and the ruling may also raise questions about contraceptive coverage.
The decision specifically refers to the part of the ACA that requires coverage without cost sharing of preventive services to which the U.S. Preventive Services Task Force (USPTF) assigns a rating of “A” or “B”. Judge O’Connor ruled that recommendations from the USPSTF are unconstitutional because the task force is not appointed by the president and confirmed by the Senate.
Future directions
The US Fifth Circuit Court has ruled in favor of a notice of appeal filed by the Department of Justice to stay Judge O’Connor’s ruling while the case makes its way through the courts. Congress could easily put the popular law on an unassailable constitutional foundation with a single sentence, by giving the final authority regarding the USPSTF recommendations to HHS Secretary Becerra.
Imposing cost sharing for preventive services would reverse a growing movement among employers in recent years to expand coverage of clinically effective care without deductibles or copays. It also could hamper intensifying efforts to reduce health disparities for lower income Americans, people of color, and the LGBTQ+ population.
Recent evidence suggests that the implementation of out-of-pocket costs would have a minimal impact (less than one-half of 1 percent) on aggregate employer health care spending.
Research indicates that 80% of employers won’t impose cost sharing on preventive services if the ACA preventive services mandate is overturned. A number of employers commented that covering preventive services in full incentivizes their use, promotes better health, prevents more serious conditions, is insignificant in costs, and saves money in the long term.