In light of the March 30 Braidwood Mgmt. Inc. v. Becerra decision, the Department of Labor, Department of Health and Human Services, and Department of the Treasury (the “departments”) have issued FAQ guidance on how the decision affects health plans’ and health insurers’ coverage obligations. In a previous article we discussed the decision, which bars action by the departments to implement or enforce certain ACA preventive care requirements. Some key points in the departments’ FAQ guidance clarify information provided in our previous article:

• Affected Services Still Unclear: The Braidwood decision only applies to preventive care requirements receiving an “A” or “B” rating from the United States Preventive Services Task Force (USPSTF) on or after March 23, 2010. Preventive care requirements receiving an A or B rating from the USPSTF before March 23, 2010, are not affected by the ruling, which means plans and issuers must still cover those preventive care services without cost-sharing. The departments recognize that the USPSTF has adjusted many of its ratings since March 23, 2010. For example, over time, the USPSTF has changed ratings that were originally A or B, and the USPSTF has changed some recommendations to apply to different groups of people. As a result, the departments are likely to address confusion regarding pre-March 23, 2010, recommendations in additional guidance.

• HDHP Status Not Impacted (for Now): The guidance clarifies the Braidwood decision’s effect on the high deductible health plan (HDHP) preventive care deductible safe harbor. Although HDHPs generally cannot provide benefits for a year until that year’s deductible is met, there is an exception that allows HDHPs to provide preventive care benefits without a deductible or with a low deductible. Until further guidance is provided, preventive services that received an A or B rating from USPSTF on or after March 23, 2010, will still be treated as preventive care for purposes of the HDHP exception – even though they are not required to be provided without cost-sharing under the Braidwood Therefore, an HDHP can continue to provide the preventive care services that received an A or B rating by USPSTF on or after March 23, 2010, before meeting the minimum annual deductible.

In addition to these key points, the guidance explains that states may still enact or enforce their own laws requiring insurers to cover preventive services receiving an A or B rating from USPSTF if they choose to do so. Furthermore, the departments urge plans and insurers to continue to cover these preventive services without cost-sharing and remind plans and insurers of the need to comply with applicable notice requirements for mid-year changes if they will start to impose cost-sharing.  In the FAQs, the departments openly disagree with the decision and note that they are working with the Department of Justice to challenge the decision. Plan sponsors and insurers should continue to follow the Braidwood case through the appeals process and anticipate additional guidance.