BY NATHANIEL WEIXEL – 04/01/23 6:00 AM ET | The Hill
An ObamaCare requirement that health insurance must cover preventive services for free is at risk of ending, after a federal judge in Texas — who previously held that the entire Affordable Care Act was unconstitutional — invalidated it.
The ruling from U.S. District Judge Reed O’Connor wasn’t entirely unexpected, but his decision to impose a nationwide injunction still sent shockwaves through the health system. The preventive services mandate is extremely popular and ending it could impact more than100 million Americans.
Here are five things to know about the ruling.
The immediate impacts are unclear
The ruling is effective immediately, but it’s not likely to have an immediate impact.
“I think this will play out over time. I don’t think it will result in precipitous changes in coverage in most cases,” said Larry Levitt, vice president of health policy at the Kaiser Family Foundation.
Health insurers price their plans on a yearly basis and are required to notify beneficiaries when there’s a coverage change. If the ruling is upheld, plans likely won’t change until next calendar year.
The insurance industry’s main lobbying group also sought to reassure people.
“We want to be clear: Americans should have peace of mind there will be no immediate disruption in care or coverage,” said Matt Eyles, president and CEO of AHIP.
Of course, experts noted there isn’t a law that prohibits insurance companies from changing their policies mid-year, it’s just a logistically complex decision— especially for a policy that may get overturned or changed on appeal.
O’Connor also invalidated ObamaCare’s mandate for free coverage of HIV prevention drugs for adults who are at high risk of infection, so some plans may immediately drop that coverage.
More preventive services could be at risk during the appeal
The Justice Department on Friday officially filed its appeal of the decision, but the plaintiffs are appealing as well.
O’Connor ruled against the preventive services mandate, but rejected arguments that would have eliminated the law’s contraceptive coverage mandate, as well as requirements that insurers cover other services like vaccines.
Those could be overturned on appeal.
“Nobody’s happy with this decision,” said Laurie Sobel, associate director for women’s health policy at the Kaiser Family Foundation. “The administration will be appealing, the plaintiffs are appealing … so all of the preventative services are kind of up for grabs as we go through the appeal process.”
The case now advances to the Fifth Circuit Court of Appeals, which is known as one of the most conservative in the country.
It impacts many preventive services, but not all
Part of what makes the impact so uncertain is that O’Connor’s decision applies only to preventive care recommendations adopted after 2010, when the Affordable Care Act was
passed. Those include anxiety screening for kids, statins for cardiovascular disease and high-risk breast cancer screenings.
Many important recommendations, including mammograms to screen women over the age of 50 for breast cancer, as well as certain cervical cancer screenings, were adopted before 2010. But over the years those recommendations have been updated, so insurers will be operating in an outdated landscape.
O’Connor upheld the authority of two other parts of the Department of Health and Human Services; one that sets standards for how to use vaccines, and another that recommends reproductive health services.
Under ObamaCare, health insurers can’t require patients to pay anything out of pocket for preventive care services that have an A or a B rating from the U.S. Preventive Services Task Force, a federal advisory committee. O’Connor said the task force is unconstitutional, as is the requirement to cover any recommendation made since the ACA became law.
There’s not a lot that states can do to protect employees
“There are real limits to what states can do here,” said KFF’s Levitt. “So states I think can and will move to fill in some of the gaps that this ruling leaves, but there are still big gaps remaining.”
States can regulate private insurance, but self-insured employer plans, which cover most people with private insurance, can’t be touched by state regulations, he said.
There are currently 15 states with laws on the books requiring individual market insurers to cover, without cost sharing, the same categories of preventive services required by the ACA.
It gives Democrats new political ammo
Democratic leaders in Congress swiftly condemned the ruling, though it puts them in a familiar position of defending ObamaCare from GOP attacks.
“Yet again, a Republican activist judge has issued a ruling based on MAGA ideology and not the law, that would decimate our healthcare system and is opposed by a vast majority of Americans,” Senate Majority Leader Chuck Schumer (D-N.Y.) said in a statement.
Levitt said Congress could easily fix the problem with a simple one-line bill. But the politics of the ACA, even 13 years after it passed, make it unlikely anything would pass.
“It would not require a lot of words to fix this in legislation, but it potentially requires very difficult politics,” Levitt said.
Protecting ObamaCare was a key part of Democrats’ messaging that helped them win control of the House in 2018, and Thursday’s decision puts the law front and center again for 2024.
“This case is yet another attack on the Affordable Care Act – which has been the law of the land for 13 years and survived three challenges before the Supreme Court,” White House Press Secretary Karine Jean-Pierre said in a statement Friday after DOJ filed its appeal.
“Preventive care saves lives, saves families money, and protects and improves our health. Because of the ACA, millions of Americans have access to free cancer and heart disease screenings. This decision threatens to jeopardize critical care,” she said.