Seyfarth Synopsis: The Tri-Agencies issued Frequently Asked Questions addressing the impact of the Braidwood decision on the ACA’s preventive care mandate, including guidance on certain preventive care services that must continue to be covered under the ACA and how the ruling impacts first dollar coverage under high deductible health plans.
On April 13, 2023, the Department of Labor, Department of Health and Human Services, and the Treasury (the “Agencies”) issued frequently asked questions (“FAQs”) addressing implementation of the ACA preventive care mandate in the wake of Braidwood Management v. Becerra, a recent Texas federal district court decision that voided the ACA requirement for health plans to cover preventive care items and services (without cost sharing) recommended by the United States Preventive Services Task Force (“USPSTF”) effective as of March 23, 2010. Importantly, the Agencies confirmed:
- Braidwood vacated any and all prior actions (and enjoined all future actions) taken by the Agencies to implement and enforce preventive care coverage requirements in response to an “A” or “B” rating recommendation by the USPSTF on or after March 23, 2010.
- Plans and issuers must continue to cover, without cost sharing, items and services with an “A” or “B” rating recommended by the USPSTF before March 23, 2010. The Agencies plan to issue additional guidance relating to any recommendations issued by the USPSTF prior to March 23, 2010, but subsequently revised after March 23, 2010. Plans and issuers are strongly encouraged, but not required, to continue to cover preventive care with an “A” or “B” rating recommended by the USPSTF after March 23, 2010.
- Plans and issuers must continue to cover, without cost sharing, preventive care items and services recommended by the Advisory Committee on Immunization Practices (e.g., common vaccinations) and the Health Resources and Services Administration (e.g., vision screening, well-baby visits, mammograms, etc.), even if those same preventive care items and services were recommended with an “A” or “B” rating by the USPSTF.
- High deductible health plans may continue to provide coverage for preventive care items and services with an “A” or “B” rating recommended by the USPSTF before individuals satisfy the minimum annual deductible required under Internal Revenue Code Section 223.
Plans that make changes to coverage must comply with applicable notice requirements under the ACA and ERISA. The Agencies intend to issue additional guidance on the ACA preventive care mandate specifically relating to plans and issuers. For more detail on the Braidwood case, please see our prior blog post here.
