FAQs Address Preventive Services Coverage After the Braidwood Decision

On April 13, 2023, the DOL, HHS and IRS (the “agencies”) jointly issued FAQs (Part 59) to provide initial guidance on how the recent court decision in Braidwood Management Inc. v. Becerra affects the requirement to cover preventive services without cost-sharing under the ACA. According to the FAQs, the agencies anticipate issuing additional guidance in the future to further address plans' and issuers' obligations in light of the Braidwood decision.

As background, under the ACA, non-grandfathered group health plans must cover certain preventive services without cost-sharing when they are delivered by an in-network provider. The covered requirements have historically included services given an “A” or “B” rating from the US Preventive Services Task Force (USPSTF), vaccines recommended by the Advisory Committee on Immunization Practices (ACIP), and preventive care and screenings for children and women recommended by the Health Resources and Services Administration (HRSA). On March 30, 2023, the US District Court for the Northern District of Texas (the “court”) issued a final judgment in Braidwood Management Inc. v. Becerra, which invalidates and prohibits the agencies from enforcing all USPSTF-recommended preventive care mandates issued since the ACA’s March 23, 2010, enactment, on a nationwide basis. Additionally, the final judgment prevents the agencies from enforcing the PrEP coverage requirements as to the plaintiffs with religious objections. For additional background information, please see our April 11, 2023, article.

Below is the key summary of the FAQs:

Preventive Service Coverage Requirements Affected by the Decision
The FAQs emphasize that the court ruling only removes the ACA coverage requirements and cost-sharing prohibitions for preventive care based on the USPSTF recommendations (e.g., lung cancer screening and pre-exposure prophylaxis (PrEP) drugs to prevent HIV infection). Preventive care recommendations by ACIP (e.g., vaccines and immunizations) and HRSA for women's health services, including contraceptive coverage requirements, would not be affected and, therefore, could not be subject to the cost-sharing requirement.

Specifically, the ruling prevents the agencies from implementing and enforcing preventive items and services given an “A” or “B” recommendation by the USPSTF on or after March 23, 2010. However, the agencies encourage plans to continue coverage without cost-sharing. Furthermore, plans and issuers must continue to cover, without cost-sharing, items and services recommended by ACIP or HRSA that overlap with stricken USPSTF recommendations.

Impact of State Laws and Midyear Coverage Changes
The court ruling does not impact state insurance law requirements to cover preventive care with an "A" or "B" rating by the USPSTF on or after March 23, 2010. Therefore, the agencies encourage issuers to continue to comply with any applicable state laws. Further, any midyear changes would need to comply with applicable state and federal laws, contractual provisions, and, if applicable, collective bargaining agreements.

Notice Requirements
Plans must comply with applicable notice requirements. If SBC content is affected, notice must be 60 days in advance of the change. Additionally, ERISA requires a summary of material reduction in covered services or benefits within 60 days following the change.

Qualified HDHP status
Until further notice, an HDHP can continue to provide benefits without cost-sharing for items and services recommended with an "A" or "B" rating by the USPSTF on or after March 23, 2010, before the minimum annual deductible is met.

Employers should be aware of the FAQ guidance and monitor future developments. The court’s decision has been appealed to the Fifth Circuit Court of Appeals, and the final outcome is not yet known. Employers considering any changes because of the court ruling should consult with counsel for guidance.

FAQs About ACA and Coronavirus Aid, Relief, and Economic Security Act Implementation »