Employers Await Judge’s Remedy on Preventive Health Services

The federal task force that determines which preventive health services must be covered for free appears likely to survive a federal court ruling that deemed the task force unconstitutional, an employer benefits attorney said.

That would be a welcome development for those employers who want to continue to rely on the Preventive Services Task Force’s recommendations for what preventive services must be covered under the Affordable Care Act by most private health plans without imposing cost-sharing on beneficiaries.

Judge Reed O’Connor of the US District Court for the Northern District of Texas is nearing a decision on an Obamacare rule involving the task force after granting summary judgment last fall in favor of a Christian-owned company that had objected to a mandate that it provide free HIV prevention drugs.

What he decides regarding Obamacare’s preventive services requirement could affect the coverage of services such as mammograms and diabetes screenings.

Employers are watching the development with interest. Some find it “very helpful” that the task force, a scientific body, recommends best practices for health-care coverage, Katy Johnson, senior counsel for health policy at the American Benefits Council, said in an interview. The American Benefits Council represents large employers on employee benefit issues.

They are encouraged that both the plaintiff, Braidwood Management Inc., and the defendant, the Department of Health and Human Services, aren’t pressing to abolish the task force.

The task force “wields a power to compel private action that resembles legislative authority,” which it can’t do because its members aren’t appointed by the president and confirmed by the Senate, O’Connor wrote in his September 2022 decision.

“The PSTF members indisputably fail that constitutional requirement,” he wrote.

However, O’Connor reserved ruling on the appropriate remedy for that alleged violation as well as for the broader question raised in the lawsuit as to whether HIV prevention drugs should be covered. The deadline for filing briefs was Jan. 27.

O’Connor’s ruling doesn’t say that the task force must be disbanded, Johnson said.

“We’re not talking about whether this body can exist and make recommendations that you choose to follow or not,” Johnson said. “We’re talking about whether health plans have to cover these things for free,” she said.

O’Connor asked parties to the case to file briefs on what remedies should be taken in light of his ruling. He must decide on how broadly his decision should be applied—whether just to the plaintiffs or generally for everyone. He also must decide how broadly his decision that HIV prevention drugs don’t have to be covered must apply.

In a brief filed Jan. 27, the Biden administration argued that the judge’s September 2022 ruling should only apply to the plaintiffs in the case.

“The Court should reject the sweeping and unjustified remedy Plaintiffs seek, which would disrupt the health insurance of millions of Americans without being necessary to remediate any violation of law established by any Plaintiff,” the brief said.

The plaintiffs argued there should be a “universal remedy” under the Affordable Care Act “that would formally ‘set aside’ every agency action taken to implement the preventive care coverage mandates recommended by the U.S. Preventive Services Task Force” since the ACA was enacted in 2010.

Coverage Before ACA

O’Connor is the same judge who ruled the Affordable Care Act was unconstitutional in 2018 before the US Supreme Court voted for a second time to uphold it.

Prior to enactment of the ACA in 2010, “Many employers covered some preventive services,” Justin Giovannelli, an associate research professor at Georgetown University, said in an interview. “Sometimes they covered some of those preventive services without cost-sharing.”

Most states have laws requiring coverage of some preventive services, Giovannelli said. But state laws don’t apply to large employers that are regulated under the Employee Retirement Income Security Act, he said.

Requirements for covering preventive services would likely be spotty without the ACA requirement, Giovannelli said.

“There will be a reduction in coverage for folks,” he said. “It will vary by employer; it may vary by the service. Right now there’s a blanket protection that more than 150 million Americans are relying on that is at risk.”

Giovannelli co-authored a recent report on state actions to preserve access to preventive services. At least 15 states have broad, ACA-style laws requiring individual market insurers to cover the same categories of preventive services required by the ACA without cost-sharing, it said.

“However, state rules are generally patchwork, and don’t usually require that benefits be provided free of cost sharing,” the report said.