Summary

The Departments of Labor, the Treasury, and Health and Human Services have jointly issued FAQs that address the requirement to cover the full cost of certain preventive care services in view of the recent ruling in Braidwood v. Bacerra that invalidated some of those requirements.

The Upshot

• The FAQs confirm that the Departments view the court’s ruling as applying only to A and B recommendations by the United States Preventive Services Task Force.
• The Departments encourage continued coverage of preventive care services that have been invalidated and plan to issue further guidance.
• High-deductible health plans may continue to treat preventive care services invalidated by the court’s ruling as preventive care that is not subject to the required deductible.

The Bottom Line

Given that the Biden Administration expects to challenge the court’s ruling and the Departments expect to issue further guidance, health plan sponsors and insurers may wish to follow further developments before making plan design changes to preventive care coverage.

The Departments of Labor, the Treasury, and Health and Human Services have jointly issued FAQs responding to the district court decision in Braidwood v. Bacerra that invalidated certain preventive care coverage requirements under the Affordable Care Act (ACA) that are based on “A” or “B” recommendations by the United States Preventive Services Task Force (USPSTF). In the FAQs, the Departments state their disagreement with the Braidwood decision, noting that the Department of Justice has filed a notice of appeal and a motion for a stay of the ruling. The FAQs also provide guidance with respect to preventive care in view of the decision, including:

• Only recommendations and changes in the USPSTF’s A and B recommendations since the Affordable Care Act was enacted on March 23, 2010, are affected by the decision. Requirements based on recommendations in effect as of that date are in effect.
• The ruling has no effect on preventive care requirements based on the recommendations and actions by the Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA). Full coverage of a preventive care service may be based on ACIP or HRSA guidance alone. Although not the focus of the guidance, the FAQs confirm that coverage for an appropriately recommended COVID-19 vaccine needs to be provided with 15 business days after the recommendation is made.
• Plans will need to consider other applicable laws in determining whether to implement mid-year changes based on the court’s decision. If a plan ceases to cover the full cost of certain preventive care services, it must meet applicable notice requirements.
• High-deductible health plans may continue to provide pre-deductible coverage for a broad range of preventive care, which includes services with a current A or B recommendation by the USPSTF.

The guidance encourages plans to continue to cover preventive care services that have been added or augmented by USPSTF actions since the ACA was enacted. These recommendations have, for example, made changes that expand certain cancer screenings.

The request for a stay might have greater significance for recommendations that have been removed from the list. If the A or B recommendations in place on March 23, 2010, are now in effect, plans may be required to cover various cholesterol screenings and other services that have since lost their A or B recommendation.

Given the uncertainty that surrounds the Braidwood decision, health plan sponsors and insurers may seek to track developments in and around the case before making any changes in their plan designs. The FAQs themselves presage that the Departments will issue additional guidance on preventive care coverage requirements in view of the court’s ruling.

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