US Gets Widespread Support in Preventive Care Mandate Appeal

Multiple groups and a coalition of states have joined the US in calling for a federal appeals court to overturn a decision that eliminated free care for preventive services like cancer screenings and HIV drugs.

The organizations are supporting Health and Human Services Secretary Xavier Becerra’s challenge to a Texas federal court’s decision invalidating coverage recommendations made by a task force that allegedly didn’t have the authority to issue them.

The services for which free coverage would no longer be required under Judge Reed O’Connor‘s late March decision include drugs to prevent HIV and AIDS, certain cancer screenings, and mental health-care services. The elimination of Affordable Care Act-mandated health plan coverage for these services will lead to many preventable deaths and illnesses, public health groups said at the time.

The groups filing friend-of-the-court briefs in the US Court of Appeals for the Fifth Circuit included four leading hospital associations, HIV and AIDS advocacy groups, the Blue Cross and Blue Shield Association, and a coalition of 23 states and the District of Columbia.

The American Hospital Association, the Federation of American Hospitals, and other hospital associations said Tuesday that Congress made a policy decision to eliminate out-of-pocket costs for services that detect and treat potentially life-threatening conditions in order to reduce the cost-burden on patients and the public.

O’Connor’s decision reinstated those pre-ACA burdens, leading to a substantially greater risk that patients’ medical conditions won’t be timely detected or treated, the hospital groups said. Even modest co-payments will lead patients to forego services that could save their lives, improve their health, and reduce their suffering, the group said.

Interpreting the ACA to allow health plans to avoid paying in full for HIV screening “would work at cross purposes” with a bipartisan plan launched by the Trump administration in 2019 to reduce new HIV infections in the US by 90% within 10 years, the AIDS Healthcare Foundation said in its amicus brief Tuesday. HIV screening has been shown to reduce transmission, as have preexposure prophylaxis medications, which also would no longer be covered in full, it said.

The Blue Cross and Blue Shield Association represents 34 independent, community-based health insurance companies, according to its brief. The plans provided by those companies insure about 115 million people in all 50 states, it said Tuesday.

There is “overwhelming evidence” that the preventive services mandate has greatly improved patients’ access to essential services, BCBSA said. Rolling back the mandate would cause “enormous disruption,” it said. The mandate, moreover, “has been an enormous policy success” strongly favored by the public, BCBSA said.

An injunction against the preventive services mandate will “directly harm state residents,” the states said in their filing Tuesday. “For more than a decade, millions of state residents—particularly the most vulnerable populations—have relied on no-cost coverage to access critical preventive care that they would otherwise forego because of its substantial costs,” they said.

O’Connor’s decision limiting the preventive services mandate turned on his finding that one of the three entities charged with recommending which services should be covered wasn’t constitutionally appointed. The order precluded the US from enforcing that committee’s recommendations anywhere in the country, but the plaintiffs agreed to stay that part of the order at least until the Fifth Circuit rules on the case.

Hogan Lovells US LLP, Eyman Associates PC, and in-house attorneys represent the hospital associations. The AIDS Healthcare Foundation also is represented by its inside counsel. O’Melveny & Myers LLP represents BCBSA. The Illinois Attorney General’s Office is lead counsel for the states.

The case is Braidwood Mgmt., Inc. v. Becerra, 5th Cir., No. 23-10326, amicus brief filed 6/27/23.