Ongoing Litigation Over ACA Provisions that Mandate Health Coverage

On March 30, 2023, the U.S. District Court for the Northern District of Texas vacated actions taken by HHS to implement provisions of the Affordable Care Act (ACA) that require health insurance plans to include coverage for certain preventive healthcare services. Judge Reed O’Connor issued the decision and enjoined HHS from enforcing the ACA requirements after previously finding that the task force that recommended them was not constitutionally appointed.

Background

The ACA empowers the U.S. Preventive Service Task Force (USPSTF), the Health Resources and Services Administration (HRSA), and the Advisory Committee on Immunization Practice (ACIP) to determine the types of preventive care that must be covered by health insurers under the ACA. Since the ACA was enacted, these three agencies have issued pronouncements requiring health insurers to cover, at no cost, preexposure prophylaxis (PrEP) drugs for HIV and sexually transmitted disease screenings. These “preventive care mandates,” as the court referred to them, are all recommended by the USPSTF.

The plaintiffs in the case, which included six individuals and two businesses, objected to the preventive care mandates on religious or personal grounds and claimed that they violated the U.S. Constitution and the Religious Freedom Restoration Act (RFRA). In September 2022, Judge O’Connor agreed with respect to the preventive care mandates recommended by the USPSTF, because its members are not confirmed by the U.S. Senate, and neither HHS nor other constitutional officials review their recommendations.

More on Ruling

The court broadly prohibited HHS from enforcing the ACA preventive services requirement with respect to any USPSTF recommendations issued on or after March 23, 2010 (the date of the ACA’s enactment). As a result of this order, commercial plans could potentially seek to limit coverage or add cost sharing for services that were more recently recommended by USPSTF. HHS estimates that the preventive services requirement governs coverage for 152 million people with private insurance.

The court also expanded its ruling with respect to PrEP and religious freedom. Whereas the court had previously ruled that a plan sponsor could potentially claim a religious exemption under RFRA from complying with the PrEP coverage mandate, the court’s latest order appears to conclude that individuals who purchase health coverage can also claim an RFRA exemption from the PrEP coverage requirement.

HHS has already appealed the district court’s ruling to the U.S. Court of Appeals, Fifth Circuit. Congress could theoretically correct the appointments clause issue in the ACA preventive services requirement by, for example, making USPSTF’s recommendations subject to ratification by the HHS Secretary. Other recommendations have been made on this issue. Meanwhile, states have the authority to require state-regulated insurance to continue covering all USPSTF-recommended services without cost sharing.