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Federal judge says insurers no longer have to provide some preventive care services

Posted at 10:57 AM, Mar 30, 2023

A federal judge in Texas said Thursday that some Affordable Care Act mandates cannot be enforced nationwide, including those that require insurers to cover a wide array of preventive care services at no cost to the patient, including some cancer, heart and STD screenings, and tobacco programs.

In the new ruling, US District JudgeReed O'Connor struck down the recommendations that have been issued by the US Preventive Services Task Force, which is tasked with determining some of the preventive care treatments that Obamacare requires to be covered.

O'Connor's ruling comes after the judge had already said that the task force's recommendations violated the Constitution's Appointments Clause. The judge also deemed unlawful the ACA requirement that insurers and employers offer plans that cover HIV-prevention measures such as PrEP for free.

Other preventive care mandates under the ACA remain in effect. The decision applies to Task Force recommendations issued on or after March 23, 2010 -- the day the Affordable Care Act was signed into law. While the group had recommended various preventive services prior to that date, nearly all have since been updated or expanded.

It is likely the case will be appealed, and the Justice Department has the option to ask that O'Connor's ruling be put on pause while the appeal is litigated.

The Justice Department did not immediately respond to a CNN request for comment, nor did the US Department of Health and Human Services.

The decision, in a case brought by employers and individuals in Texas, represents the latest legal attack on the landmark 2010 health care law. It is unclear what immediate practical effect O'Connor's new ruling will have for those with job-based and Affordable Care Act policies because insurance companies will likely continue no-cost coverage for the remainder of the contracts even though the Obamacare requirements in question have been blocked. Contracts often last one year.

While the case does not pose the existential threat to the Affordable Care Act that previous legal challenges posed, legal experts say that O'Connor's ruling nonetheless puts in jeopardy the access some Americans will have to a whole host of preventive treatments.

"We lose a huge chunk of preventive services because health plans can now impose costs," said Andrew Twinamatsiko, associate director of the O'Neill Institute for National and Global Health Law at Georgetown University. "People who are sensitive to cost will go without, mostly poor people and marginalized communities."

Wide-ranging impact

It could have significant consequences for Americans nationwide, by limiting access to key preventive services aimed at early detection of diseases, including lung and colorectal cancer, depression and hypertension.

However, in an earlier ruling, the judge upheld certain free preventive services for children, such as autism and vision screenings and well-baby visits, and for women, such as mammograms, well-woman visits and breastfeeding support programs.

O'Connor also upheld the mandate that provides immunizations at no charge for the flu, hepatitis, measles, shingles and chickenpox. These services are recommended by the Health Resources and Services Administration and the Advisory Committee on Immunization Practices.

Insurers will have to continue to cover preventive and wellness services since they are one of the Affordable Care Act's required essential health benefits. But under O'Connor's ruling, they could require patients to pick up part of the tab.

More than 150 million people with private insurance can receive preventive services without cost-sharing under the Affordable Care Act, according to a 2022 report published by HHS.

Overall, about 60% of the 173 million people enrolled in private health coverage used at least one of the ACA's no-cost preventive services in 2018 prior to the COVID-19 pandemic, according to a recent analysis by the Kaiser Family Foundation. These include some services that will continue to be available at no charge under the judge's ruling.

The most commonly received preventive care includes vaccinations, not including COVID-19 vaccines, well-woman and well-child visits, and screenings for heart disease, cervical cancer, diabetes and breast cancer, according to Kaiser.

Studies have shown than that the Obamacare mandate prompted an uptake in preventive services and narrowed care disparities in communities of color.

"There's plenty of evidence that people responded to this incentive and started using preventive care more often," said Paul Shafer, assistant professor of health policy at Boston University.