June 9 – A mandate that U.S. health insurers cover preventive care like cancer screenings and HIV-preventing medication at no extra cost to patients could remain in place while the Biden administration appeals a court order striking it down, following a tentative agreement announced on Friday.
The agreement between the administration and conservative businesses and individuals that sued to challenge the mandate is not yet final, according to a filing with the 5th U.S. Circuit Court of Appeals.
The deal would preserve the mandate nationwide while appeals play out, but allow the employer challenging the mandate, Texas-based Braidwood Management, to stop covering pre-exposure prophylaxis (PrEP) against HIV and other preventive services without co-pays for its employees for now.
The company, which operates an alternative health center, would be shielded from any retroactive enforcement if the mandate is restored on appeal.
The preventive care mandate, part of the Affordable Care Act (ACA) often referred to as Obamacare, covers services recommended by a federal task force.
Braidwood and the other plaintiffs sued specifically over PrEP for HIV, which they said violated their religious beliefs by encouraging homosexuality and drug use.
U.S. District Judge Reed O’Connor in Fort Worth, Texas in March blocked the federal government from enforcing the mandate for a much wider range of services, finding that the task force’s role under the ACA violates the U.S. Constitution.
If the task force’s recommendations automatically trigger coverage, he said, then it has enough power that its members must be appointed by the president and confirmed by the U.S. Senate.
The ruling does not apply to services the task force recommended before the ACA was enacted in 2010, including breast cancer screening.
More than 150 million people were eligible for preventive care free of charge as of 2020 under the ACA, according to data from the U.S. Department of Health and Human Services.
If O’Connor’s ruling is not overturned on appeal, insurers will be able to charge patients co-pays and deductibles for such services in new insurance plans, most of which will begin next calendar year.
The Biden administration has said O’Connor’s ruling threatens public health. Major U.S. medical associations have also weighed in against the decision.
O’Connor drew national notice in 2018 when he struck down the entire ACA, a decision that was later overturned.
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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at [email protected].
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