According to a letter to lawmakers from the six trade groups representing the insurance industry, the majority of insurers in the United States do not expect to drop no-cost preventive healthcare services as a lawsuit challenging the Affordable Care Act requirement works its way through the courts.
Their decision was outlined Wednesday in a letter from trade groups to House and Senate Democratic health committee leaders, who asked a dozen of the nation’s largest health insurers and trade associations on April 12 whether they intended to cover all recommended preventive services without cost-sharing until all appellate review in the case was completed.
According to the letter signed by trade groups such as America’s Health Insurance Plans and the American Benefits Council, “the overwhelming majority do not anticipate making changes to no-cost share preventive services, and do not anticipate disruptions in preventive care coverage while the case proceeds through the courts.”
The congressional inquiry highlights the growing concern that litigation, which is likely to end up before the United States Supreme Court, could result in more than 150 million Americans losing access to many free health screenings. Certain preventive care services are required to be covered by the ACA with no out-of-pocket costs to consumers. A lawsuit was filed to challenge that requirement, and in September, a district court judge ruled that the method by which a federal task force determines which services are covered is unconstitutional.
In March, Judge Reed O’Connor of the United States District Court for the Northern District of Texas issued a nationwide injunction prohibiting commercial insurers from covering screenings recommended by a federal task force.
The task force’s recommendations resulted in free mammograms and screenings for colon cancer, HIV, cervical cancer, and gestational diabetes.
Judge O’Connor, appointed by George W. Bush, previously ruled that the requirement that the Preventive Services Task Force’s recommendations be covered by most health plans is unconstitutional. He stated that the task force must be appointed by the president and confirmed by the Senate, rather than being chosen at random.
The Department of Health and Human Services’ attorneys filed an appeal with the Fifth Circuit Court of Appeals. Meanwhile, the Justice Department has requested that Judge O’Connor’s decision be stayed while the case proceeds through the courts. The Justice Department’s request is expected to be decided on Thursday.
The lawsuit, which was initially filed by six individuals and two businesses opposed to the ACA requirements, has also prompted some Democratic state lawmakers to rush to preserve certain preventive care coverage.
Democratic Michigan Gov. Gretchen Whitmer secured agreements with insurers representing the entire fully insured market in the state this month to maintain no-cost preventive services until the lawsuit’s legal process concluded. The agreements with 17 insurers cover individual, small and large group markets, as well as plans sold through the ACA exchanges, and affect more than 2 million consumers.
In Illinois, Democratic Gov. J.B. Pritzker stated in a statement that “Illinoisans will not go without essential cancer and diabetes screenings, vision tests, and PrEP/PEP access to satisfy a right-wing agenda.” PrEP/PEP is a medication used to reduce the risk of contracting HIV.
In California, the insurance commissioner and some state legislators are hoping to use the Texas judge’s decision to rally support for legislation that would strengthen state preventive care requirements.
“We must act to protect Californians from these activist conservative judges’ harmful decisions,” Democratic Assemblymember Rick Chavez Zbur said in a statement.
Because they passed legislation after Republicans attempted to repeal the ACA in 2017, fifteen states already have some safeguards in place to ensure preventive care with no out-of-pocket costs. Individual market protections apply, but employers with self-funded health plans are exempt from state insurance laws.
States that take action to protect no-cost preventive care may end up paying for it, according to Sabrina Corlette, co-director of Georgetown University’s Center on Health Insurance Reforms. According to the ACA, states must cover costs if they enact a benefit mandate that goes above and beyond the essential benefits required by law.
“It could give state lawmakers pause,” she says. “The federal government should issue specific guidance.”
HHS did not respond to requests for comment on whether the guidance would be published.