A Texas court decision on the Affordable Care Act could eliminate full coverage of a number of preventive health care services, a development that legislators and advocates say could affect the health of millions, including patients in Massachusetts.
On Thursday, Judge Reed O’Connor of the US District Court for the Northern District of Texas reversed a provision of the Affordable Care Act which required that insurers cover all the costs associated with screening tests, medications, counseling, and other services recommended by the US Preventive Services Task Force, an independent panel of experts that advises the government.
The decision followed a ruling by the judge in September that said members of the task force were unconstitutionally appointed because they were not selected by the president and confirmed by the Senate.
Though likely to be appealed, the decision voids the requirement that insurers fully cover a large swath of preventive services that the task force has recommended since 2010, when the ACA was passed. Those include anxiety screening in children and adolescents, weight screening and control for pregnant women, unhealthy drug use screenings for adults, and coverage of an HIV-prevention drug known as pre-exposure prophylaxis, or PrEP.
The ACA requires full coverage of a number of other services that were recommended by other groups. Those requirements will remain in place, including full coverage of contraception.
Insurers will also still be required to follow coverage recommendations for preventive care in place before 2010, said Nicholas Bagley, a law professor at the University of Michigan.
“These are questions insurers will have to resolve and that HHS will offer guidance on,” Bagley said. “There will be a fair amount of uncertainty.”
While the decision has imperiled how much patients will have to pay to access certain preventive services, insurers may provide coverage of certain services, with cost sharing, or might continue to provide full coverage, even if not mandated
It is unclear when consumers might start to incur costs for these preventive services, as many insurance contracts are annual. Many also expect the federal government to attempt to seek a stay of the ruling. A Department of Health and Human Services spokesperson did not respond to a request for comment.
Blue Cross Blue Shield of Massachusetts, the largest insurer in the state, said in a statement that it was reviewing the details of the ruling. However, the statement said, coverage of services recommended by the task force remains the same for now and would not immediately require cost sharing — meaning that consumers wouldn’t have to pay co-pays or other costs associated with the care.
“We are deeply concerned that this decision will create consumer confusion about the coverage and cost of important preventive services,” the insurer said in a statement.
Lora Pellegrini, president and CEO of the Massachusetts Association of Health Plans, said her members strongly support coverage of the preventive services implemented under the ACA, and said the group supported codifying such requirements into state law.
“As health plans, we’ve been committed to preventive services and prevention, and there’s lots of data that getting certain preventive services will save money in the long run,” Pellegrini said. “These particular items were ones the task force deemed appropriate. Ultimately, this is about chipping away at the ACA.”
Massachusetts legislators had already taken action in preparation for Thursday’s decision. Legislation filed by state Senator Cindy Friedman and state Representative John Lawn would protect the no-cost-sharing provisions not only of the task force recommendations, but also for other services protected from cost sharing by the ACA, including immunizations and preventive care and screenings for infants, children, and adolescents. Friedman said the bill tried to codify a wider range of preventive services beyond those at risk today, given the appetite among certain groups to go after the ACA.
But she questioned the desire of political groups to hinder any kind of access to critical preventive services.
“It’s a political decision at best, and inhumane at worst,” Friedman said. “It will take health care away from millions of Americans if it is allowed to stand. … We as a state need to take steps that mitigate the dangerousness of it.”
Two other bills would codify and expand PrEP access. One would codify the no-cost-sharing provisions for PrEP and would allow the state’s insurance commissioner to enforce it. Another would seek to go further by enabling pharmacists to prescribe, dispense, and administer PrEP for a 60-day supply, with the expectation that patients would follow up with their doctor for longer-term access to the drug.
PrEP access without cost sharing was already an issue, even when the ACA mandates were in effect, with consumers saying they still faced bills for follow-up care and lab work. Advocates worry the Texas decision will further erode coverage of the drug.
“This will increase HIV transmission just among men who have sex with men by 17 percent in the first year alone,” said Ben Klein, senior director of litigation and HIV law for the GLBTQ Legal Advocates & Defenders. “That is astounding and unacceptable. We need to be moving the needle in the opposite direction.”
Both pieces of PrEP legislation are sponsored by state Senator Julian Cyr and state Representative Jack Patrick Lewis. In a statement, Lewis called the Texas decision “a dire threat to public health.” In an interview, Cyr added that of the 24,900 people in the state eligible to take PrEP, only approximately 9,100 currently were. If fewer take the drug because of the cost-sharing impediments, HIV transmission will increase.
“These extremists will have blood on their hands thanks to their policies,” Cyr said. “Perhaps that is their intent. I cannot convey how serious and alarming of a moment we are all in as a nation.”
A portion of the Massachusetts insurance market is already protected from the abolishment of some ACA provisions. The state’s Health Connector, which manages the online health insurance marketplace, already requires insurance offerings to have no cost sharing for services recommended by the US Preventive Services Task Force, as part of its seal of approval process. Massachusetts laws could further extend such protections to a greater portion of the market.
However, even if the state were to codify these services, the law would not apply to the approximately 60 percent of the commercially insured market that is self-insured. As of 2021, 2.39 million people were in what is known as self-insured plans, where the employers themselves assume financial risk for eligible medical costs incurred by their employees and employees’ families. Many large companies choose to self-insure, and industry officials have noted that some smaller companies are following suit. While such plans must comply with federal coverage mandates, they are under no obligation to comply with state mandates.
“There’s so little that we can do, because we have no governing authority over those plans,” Friedman said. “This has to change at the federal level. We can’t make an employer do something. The whole system is at risk.”
Jessica Bartlett can be reached at firstname.lastname@example.org. Follow her on Twitter @ByJessBartlett.