On March 30th, 2023, U.S. District Judge Reed O’Connor ruled that the preventive care recommendations specifically from the U.S. Preventive Care Task Force (USPSTF) do not have to be followed because the 16 volunteer medical professionals involved in creating and publishing the recommendations do not have to be appointed by the president nor confirmed by the U.S. Senate.
In this ruling, the court held that the members of the USPSTF were unconstitutionally appointed and thus do not have the authority to determine the preventive services that must be covered by private health plans. This means only services recommended by the USPSTF would be optional to cover at 100%, but would not impact recommendations made by the HRSA or ACIP, which provides recommendations for other types of preventive services and immunizations.
As background, the ACA requires that group health plans and insurers must provide certain preventive services with an A or B rating as recommended by the USPSTF without imposing any cost-sharing. As a result, deductibles, copays, coinsurance, or other cost-sharing may not be imposed on these services.
In addition, the court said that the PrEP mandate (treatment for the prevention of HIV) violates rights under the Religious Freedom Restoration Act and is therefore unlawful. The plaintiffs had argued that coverage for PrEP drugs encouraged behavior that was against his religious beliefs, and that as a result, he should not be forced to pay for these services.
The ruling, effective immediately retroactively back to March 23, 2010, as a nationwide injunction, means that insurance carriers and self-funded group health plans are no longer required to cover ACA preventive services as recommended by the USPSTF and PrEP with no cost-sharing. However, preventive services recommended by the HRSA such as vision screening, well-baby visits, and mammograms, and those recommended by the Advisory Committee on Immunization Practices (ACIP) including several common immunizations, will still be subject to a $0 cost-share requirement.
Prior to the ACA, many fully insured carriers and employers were already covering preventive services with no cost-sharing. Many insurers have already stated they will continue to cover these services as part of their standard contracts or as a requirement under state insurance law, at least through the end of the policy year. However, if the ruling stands, self-insured plans may be more inclined to remove some services currently covered as $0 preventive care as a means to lower claims costs.
During the coming weeks and months, it is likely that the administration will appeal the decision. In the meantime, should group health plans decide to apply cost-sharing to some or all of the USPSTF’s recommended preventive care services or to PrEP, plan sponsors would generally need to amend their plan documents and SBCs, and be careful not to remove additional preventive care services recommended by the ACIP or HRSA. If the ruling does not withstand appeal, plan sponsors would likely have to revert back to prior coverage as recommended by the USPSTF.