District Court in Texas Narrows ACA Preventative Services Mandate

Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas issued a memorandum and order on March 30, 2023, that significantly reduces the scope of preventative services that must be covered without participant cost-sharing by non-grandfathered Affordable Care Act (ACA)-covered health plans and issuers. Braidwood Management, Inc. v. Becerra, No. 4:20-cv-00283-O (N.D. Tex. Mar. 30, 2023). According to this decision, the services that are no longer required to be covered under the ACA's preventative services mandate are those receiving "A" or "B" ratings by the U.S. Preventative Services Task Force (PSTF), an independent, volunteer panel of national experts in disease prevention. The government has already filed a Notice of Appeal and we will learn in the coming days whether the order will be stayed pending the appeal.

The ACA empowered PSTF, along with two government groups within the Department of Health and Human Services (HHS), to determine which services to include in the preventative services mandate. In a September 7, 2022, decision in the same case, Judge O'Connor held that the ACA's preventative services mandate was unconstitutional under the Appointments Clause insofar as it mandated coverage of services recommended by the PSTF which is not under the supervision and control of the Secretary of HHS. The court also held that requiring preventive services coverage for pre-exposure prophylaxis (PrEP) drugs that are used by persons at high risk of HIV acquisition violated plaintiffs' rights under the Religious Freedom Restoration Act (RFRA).

The March 30 decision addressed which of the six plaintiffs had standing on the claims that survived the court's earlier September 2022 findings and orders and the scope of the remedies available under those claims. The court decided that those plaintiffs with standing had shown that they were entitled to vacatur as a remedy under the Administrative Procedures Act (APA) for their successful Appointments Clause claim and it enjoined all federal agency action to implement or enforce the preventive care coverage requirements from the PSTF. 

The recent decision does not impact all ACA-mandated covered services and does not prevent health plans from continuing to cover without cost-sharing the preventative services identified by the PSTF. However, some employers who have objections to covering some of those services or who wish to cut costs by scaling back on offering coverage without cost-sharing on the PSTF services can turn to this decision to support a reduction in coverage, provided the decision withstands the appeal.  

The question of whether reducing coverage for preventative care makes economic sense in the long run will gain renewed attention following this decision. The PSTF's preventative services list includes screenings for cervical, lung, colorectal, breast, and skin cancer; screenings for depression and diabetes; screening for anxiety and vision abnormalities in children; screening for osteoporosis in women; screening for HIV and HIV prevention, including PrEP; tobacco cessation interventions; and care for pregnant and breastfeeding women, among other things.

Federal Guidance Related to End of COVID-19 Public Health Emergency Issued

The Departments of Labor (DOL), HHS, and the Treasury (collectively, the Departments) issued Frequently Asked Questions (FAQs) Part 58 on March 29, 2023, that provide guidance to plans and issuers on a host mandates and other topics as the nationwide coronavirus public health emergency (PHE) that began on January 27, 2020, comes to an end. The Biden-Harris administration announced that it intends to end the National Emergency Concerning the Novel Coronavirus Disease 2019 (COVID-19) Pandemic (COVID-19 National Emergency) and the PHE at the end of the day on May 11, 2023. Some important guidance in the FAQs covers:

• Coverage of items and services related to diagnostic testing for COVID-19
• Notice to participants, beneficiaries, and enrollees related to changes in coverage for COVID-19 diagnosis and treatment
• Coverage of coronavirus preventative services, including COVID-19 vaccines
• Ending of disregard periods for certain time periods and dates related to special enrollment, Consolidated Omnibus Budget Reconciliation Act (COBRA), and claims procedures
• Impact of benefits for COVID-19 testing and treatment on health savings accounts and high deductible health plans

The Departments ask plans and issuers to voluntarily continue many of the coverage requirements and practices that were mandated at the start of the pandemic under the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security (CARES) Act. 

Upcoming Speaking Engagements

Joanne Roskey will present, as part of a panel, "No Surprises Act Enforcement: How to Prepare for a DOL Audit," an ABA webinar on April 25, 2023, at 1 p.m. ET. This program will discuss the No Surprises Act (NSA) and how it impacts ERISA plans and their administration.

The information contained in this communication is not intended as legal advice or as an opinion on specific facts. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information, please contact one of the senders or your existing Miller & Chevalier lawyer contact. The invitation to contact the firm and its lawyers is not to be construed as a solicitation for legal work. Any new lawyer-client relationship will be confirmed in writing.

This, and related communications, are protected by copyright laws and treaties. You may make a single copy for personal use. You may make copies for others, but not for commercial purposes. If you give a copy to anyone else, it must be in its original, unmodified form, and must include all attributions of authorship, copyright notices, and republication notices. Except as described above, it is unlawful to copy, republish, redistribute, and/or alter this presentation without prior written consent of the copyright holder.