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Editor’s Note: On Monday, May 15, 2023, a federal appeals court in New Orleans put a temporary hold on the prior Texas ruling striking down the preventive care provisions of the ACA. The White House had sought an appeal of the March 30 ruling. The appeals court has not yet set a date for arguments in the appeal. We will continue to monitor the case and will post further updates when available.

One of the advantages of the Affordable Care Act (ACA) is its requirement that most health plans cover a set of preventive services at no cost to patients when delivered by in-network providers. Services include more than a dozen immunizations as well as blood pressure, cholesterol, colorectal, depression, hepatitis, lung cancer, and tuberculosis screenings.
 
In late March 2023, a federal judge in the U.S. District Court in Northern Texas ruled in Braidwood Management Inc. v. Becerra that the federal government cannot require health plans to cover all preventive care items that had previously been required by the ACA. The decision eliminates first-dollar, zero cost coverage for preventive care services recommended solely by the U.S. Preventive Services Task Force (USPSTF) as of the date the ACA was signed into law (March 23, 2010).
 
Separately, in the same case, the Texas federal court said that the ACA requirement for employer-sponsored health plans to include coverage for anti-HIV medication, pre-exposure prophylaxis (PrEP), is unconstitutional because the requirement violates some employers’ religious beliefs. The judge ruled that it violates plaintiffs’ rights under the Religious Freedom Restoration Act (RFRA). He agreed with the Christian-owned company’s argument that PrEP coverage “forces religious employers to provide coverage for drugs that facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use.”
 
As broad as the ruling is, it will not completely and immediately eliminate preventive care services under the ACA. Some states, including California, do require plans to include coverage for preventive care. Self-funded plans and grandfathered ACA plans in California, will be affected by the federal district’s court ruling.
 
California’s Department of Managed Health Care released a statement in April from the California Health & Human Services Agency (CalHHS) regarding the case. Enacted in 2020, “Senate Bill (SB) 406 amended state law to require health plans provide coverage of evidence-based items or services in the recommendations of the USPSTF independent of federal requirements under the ACA.”
 
In addition, state Senate Bill 523 established the Conception Equity Act of 2022. It expanded coverage of FDA-approved contraception drugs and devices with no cost sharing for patients. Senate Bill 159, enacted in 2019, requires health plans to provide coverage of pre-exposure and post-exposure HIV prophylaxis drugs (e.g., PrEP).
 
There is also legislation moving through the California legislature that would explicitly require coverage without cost-sharing for anti-HIV medication, HIV screenings, and STI screenings for all plans regulated by the state – including grandfathered ACA plans.
 
Insurance professionals have suggested that changes to ACA preventive care coverage could be less likely in the near term – in both California and Nevada. That’s because insurance contract provisions typically apply for plan years, and coverage considerations were built into 2023 plans already in force. For 2024, coverage could vary.
 
The Kaiser Family Foundation (KFF) published an April article outlining implications of the ACA preventive services ruling, if not overturned on appeal. The U.S. Department of Health and Human Services filed an appeal notice soon after the late March Texas ruling. On April 28, Reuters reported that the Biden administration asked a federal appeals court to put a hold on the Texas judge’s rulings. The Justice Department said the order “has no legal justification and threatens the public health.”
 
KFF has suggested that the Fifth Circuit Court of Appeals in New Orleans may or may not issue a stay – or do so in an expedient way. That could lead to an appeal to the U.S. Supreme Court. If the Supreme Court takes up the matter, it could review the issue of the stay, but not consider the merits of the case as a whole.
 
We will continue to monitor the appeal and related court actions. Check back often for the latest information.