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Recent Litigation Challenges the Affordable Care Act Preventive Services Requirement

Client Alert, News Article
November 15, 2022

The Affordable Care Act (ACA) has been met with numerous legal challenges. The most recent legal challenge, Braidwood Management Inc. v. Becerra, could affect millions of people covered by private health insurance.

Which section of ACA is this litigation challenging?

Section 2713 provides that private health insurers must cover a range of preventive services without cost sharing (deductible, co-pays, etc.). These preventive services include routine immunizations, preventive services for women and children, and more. They also include preexposure prophylaxis (PrEP), which is used to prevent HIV; contraceptives; Syphilis and other sexually transmitted infection screenings and counseling1. The U.S. Preventive Services Task Force (USPSTF) is a body of experts in disease prevention commissioned by the federal Agency for Healthcare Research and Quality that makes the recommendations regarding which preventive services will be covered at no out-of-pocket cost to the patient2.

Braidwood Management Inc. v. Becerra

In Texas, two Christian-owned businesses and individuals argued that the ACA’s no-cost sharing preventive services mandate is unconstitutional. Plaintiffs in Braidwood Management Inc. v. Becerra are specifically challenging the requirement to cover “PrEP, HPV vaccines, contraceptive services, and screening and behavioral counseling for sexually transmitted infections and drug use”3 citing (1) a violation of their religious freedoms and (2) the unconstitutionality of USPSTF.

On September 8, 2022, the District Court judge, O’Connor, ruled partly in favor of the plaintiffs. However, the district court asked for additional briefs before issuing its final decision.

What are the implications if the court rules in favor of Braidwood Management Inc.?

As we wait for the remedy suggestions from the district court, the impact of this case cannot be overlooked. This ruling poses significant risk to preventive services coverage. If the court rules in favor of Braidwood Management Inc., the federal government may not be able to require preventive services at no cost to individuals with private health insurance plans. Although this case is targeting sexual and reproductive health measures, the implications of rolling back such mandates could affect the broad range of preventive services covered in the ACA such as cancer screenings, tobacco cessation, unhealthy alcohol use in teens, and much more. Finally, the loss of preventive services coverage will result in shifting costs from insurers to today's 167 million privately insured individuals4.

For more information, please contact Member Daphne Kackloudis at dlkackloudis@bmdllc.com.

Footnotes

  1. https://www.kff.org/health-reform/fact-sheet/preventive-services-covered-by-private-health-plans/
  2. https://www.uspreventiveservicestaskforce.org/uspstf/
  3. https://scholar.google.com/scholar_case?case=12053267287274815900&q=Braidwood+Management+Inc.+v.+Becerra&hl=en&as_sdt=6,36&as_vis=1
  4. https://oneill.law.georgetown.edu/coverage-for-preventive-health-services-at-risk-in-new-court-decision/
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