On May 15, 2023, the US Court of Appeals for the Fifth Circuit issued a stay on the Braidwood ruling discussed below. While the Fifth Circuit works on the case, the preventive care requirements addressed below remain intact without change.
The Affordable Care Act (ACA) amended the Public Health Service (PHS) Act to require non-grandfathered group health plans to cover a range of preventive health services without any cost-sharing.
On March 30, 2023, in the case Braidwood Management Inc. v. Becerra (“Braidwood decision”), the District Court for the Northern District of Texas (“the Court”) issued a final judgment that the way certain preventive care requirements are determined violates the Appointments Clause of Article II of the United States Constitution and is therefore unlawful.
Preventive Coverage Requirements
The preventive items or services subject to ACA preventive coverage requirements are determined in a variety of ways including:
- Items or services that have in effect a rating of “A” or “B” in the recommendations of the United States Preventive Services Task Force (USPSTF);
- Immunizations for routine use in effect a recommendation from the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC);
- With respect to infants, children, and adolescents, preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA); and
- With respect to women provided for in comprehensive guidelines supported by HRSA.
The Braidwood decision prevents the Departments of Labor, Health and Human Services, and the Treasury (“the Departments”) from enforcing the PHS Act preventive service coverage requirements related to an “A” or “B” recommendation by the USPSTF on or after March 23, 2010. The Departments have appealed the Court’s decision.
The Departments have issued an FAQ (summarized below) clarifying the impact of the Braidwood decision on employer-sponsored (and other) health plans. The full FAQ can be found here.
- The Braidwood decision applies only to items and services required to be covered by plans and issuers without cost-sharing “in response to an ‘A’ or ‘B’ recommendation by the USPSTF on or after March 23, 2010.
- This means that plans and issuers must continue to cover, without cost-sharing, items and services recommended with an “A” or “B” rating by the USPSTF before March 23, The Departments anticipate providing additional guidance with respect to the pre-March 23, 2010 recommendations.
- The Braidwood decision does not affect guidance related to immunizations recommended by ACIP and preventive care and screenings provided for in comprehensive guidance supported by HRSA (including, but not limited to, contraceptive coverage).
- State laws may still require health insurance issuers offering group or individual health insurance coverage to provide coverage without cost-sharing of items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23.
If an employer chooses to make changes to their plan’s coverage of services affected by the Braidwood decision, applicable participant notices much be taken into consideration including:
- Complying with the Summary of Benefits and Coverage (SBC) rules, which require that if a group health plan makes a material modification to any of the terms of the plan or coverage that would affect the content of the SBC, the plan must provide notice of the modification to enrollees 60 days prior to the date on which the modification will become effective.
- Additional requirements that apply in the event of a reduction in covered benefits or services or other modification of plan terms, including the requirement that a plan subject to ERISA generally must provide a summary of material reduction in covered services or benefits within 60 days of adoption of a material reduction in group health plan services or benefits.
Preventive Health Services and HSA eligibility
A high deductible health plan (HDHP) may provide preventive care benefits without a deductible or with a deductible below the minimum annual deductible, and participants are eligible to make or receive health savings account (HSA) contributions.
The Departments have clarified that until further guidance is issued, items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010, will be treated as preventive care for purposes of qualifying HDHP and HSA eligibility requirements, regardless of whether these items and services must be covered without cost-sharing.
Coverage of COVID-19 Preventive Services and Vaccines
The Coronavirus Aid, Relief, and Economic Security (CARES) Act requires non-grandfathered group health plans to cover, without cost-sharing, any qualifying coronavirus preventive service pursuant to section 2713(a) of the PHS Act and its implementing regulations (or any successor regulations).
The Braidwood decision does not change the requirement to cover without cost sharing immunizations recommended by ACIP. Therefore, plans and issuers must continue to provide coverage, without cost sharing, for any qualifying coronavirus vaccines. This includes COVID-19 vaccines furnished after the end of the COVID-19 public health emergency.
While the Braidwood decision means that, for now, the Departments will not enforce the requirement that health plans cover certain preventive services, the decision is being appealed and it will take some time for the case to works its way thought the courts.
In the meantime, it is anticipated that few employers will make significant changes to the preventive services covered by their plan pending the outcome of challenges to the decision.
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