Federal court judge considers challenge to ACA preventive care mandate

The fate of preventive care services covered by the Affordable Care Act (ACA) is now in the hands of a conservative Texas federal court judge who tried to overturn the entire ACA.

Judge Reed O’Connor, who had declared the ACA unconstitutional — a ruling that was later invalidated by the Supreme Court — in a July 26 ruling called Kelley v. Becerra. The case is based on the view that the ACA’s requirement that insurance companies must cover certain preventive services is unconstitutional, as explained in a Commonwealth Fund article.

STD prevention, contraceptive benefits mentioned

Although The lawsuit would make the authorization of all preventive services — including vaccines and cancer screenings — and some plaintiffs, including eight individuals as well as an orthodontic clinic and a managed services company, appear to be more against certain services. Especially ces. “[The four plaintiffs] did not need or wish to include contraceptives in their health insurance,” the original complaint said. “They don’t want or need free STD [sexually transmitted disease] testing that is covered by health insurance because they are in a monogamous relationship with their respective spouses. They don’t want or need health coverage for Truvada or PrEP [pre-exposure prophylaxis] insurance] drugs because neither they nor any of their family members engaged in HIV transmission.”

“[These plaintiffs] also objected to contraceptive and PrEP drug coverage on religious grounds . Each of these plaintiffs are Christians who are unwilling to buy health insurance to subsidize abortion contraceptives or PrEP drugs that encourage and promote homosexual behavior,” the lawsuit continued.

Two of the other defendants, a married heterosexual couple, had no religious or moral objections to contraceptive insurance, but “their objections to contraceptive provisions were based solely on their The fact that birth control pills are not needed or wanted. Overage due to [wife’s] hysterectomy.” Another plaintiff did not want birth control insurance because “his wife was past childbearing age.”

As the Commonwealth Fund points out, the lawsuit argues that the Preventive Services mandate violates certain parts of the Constitution because it uses requirements established by federal and non-federal employees — such as the Advisory Committee on Immunization Practices (ACIP) and Requirements established by the United States Preventive Services Task Force (USPSTF) – These requirements are not appointed by the President or confirmed by the Senate. It also argues that requiring preventive services such as PrEP to be covered violates the Religious Freedom Restoration Act.

The Biden Administration Defends the Mandate

The Biden Administration The mandate was defended with the help of 21 state attorneys general and agencies including the American Public Health Association. They argue that, “The USPSTF [and] ACIP … are overseen by federal agencies whose heads have been nominated by the President and confirmed by the Senate, and are constitutional. Furthermore, Congress itself has made and Services Authority] as a well-established process for use as an expert body,” said the Commonwealth Funds analysis.

Case “Yes, does HRSA have the power to compel people to provide health insurance for certain devices and drugs when [the agency has not] completed the notice and comment rulemaking process?” Right Lean Roger Severino, J.D., vice president of domestic policy at the Heritage Foundation think tank, said in a phone interview. “What about the rule of law?”

Katie Keith, JD, MPH, director of the Health Policy and Legal Initiative at the Georgetown University Law Center, says there are several possible outcome cases: First, O’Connor could reject the plaintiff’s argument and leave everything as it was, which was considered unlikely; second, he could cancel the entire provision of preventive services; and third, he could only cancel certain aspects of the regulations related to certain agencies. Some parts, for example, only invalidate the preventive service requirements established by HRSA.

If he does so to cancel all or part of the request, another question is whether he will keep his decision to give the government time to appeal. Keith said in a phone interview that she hopes he does stick to the decision “so that it doesn’t create a huge mess” and people don’t suddenly lose preventive benefits.

Even if he doesn’t keep the decision, she added, “people will keep their preventive services until they renew their insurance coverage,” after which there could be a hodgepodge. “People will follow the whims of their insurers or employers … There will be a lot of potential disruptions and changes in the next planning year.” If he doesn’t keep the decision, a Biden administration could apply for an emergency stay. Whatever happens, she said, there is a two- or three-year process, and decisions – no matter how they are taken – could be appealed, including all the way to the Supreme Court.

Possible impact on public health

From public health From the perspective of Stopping Preventive Benefits, said Dr. Kathryn Hempstead, senior policy advisor at the Robert Wood Johnson Foundation, the mandate calls for many benefits to be provided free of charge to patients, “it’s really like cutting your face to shame you. like dropping your nose.” “A lot of research shows that people use less care if they have to pay for care out of pocket.” Providing these benefits for free “removes the incentive for patients to get care that actually benefits disease prevention.” Eliminating this, she added The mandate will affect all people with private insurance — not just those who buy insurance on the ACA marketplace — about 167 million people. All the while, the Department of Health and Human Services appears to be considering narrowing the exception to the federal contraceptive coverage mandate, which allows religious organizations and people with a conscientious objection to avoid providing employees with free contraceptive coverage. HHS has sent a proposed rule to the Office of Management and Budget (OMB) titled “Coverage of Certain Preventive Services under the Affordable Care Act.” The rule’s description reads: “This rule would propose revisions to the final rule on religious and moral immunity and facilitation regarding coverage of certain preventive services.”

Originally, as drafted during the Obama administration, the waiver allowed religious institutions not to pay for contraceptive insurance, but also required the insurers of these organizations to provide coverage directly without billing to patients. An organization of nuns called the Little Sisters of the Poor has challenged the second half of the exemption. The case went all the way to the Supreme Court, which ruled in favor of the nuns in 2020.

“Do you really have to force nuns to provide contraceptive insurance for their fellow nuns?” said Severino, who headed the HHS Office of Civil Rights under former President Trump. Severino, who is also a senior fellow at the Center for Ethics and Public Policy, testified on behalf of the center at OMB earlier this week against changing the immunity.