FAQs issued on recent ACA ruling on preventive care requirements

The departments of Labor, Health and Human Services, and Treasury have released FAQs Part 59 addressing the recent federal district court decision in Braidwood Management Inc. v. Becerra. The decision blocked the Affordable Care Act’s (ACA’s) requirement for non-grandfathered group health plans to cover certain preventive healthcare services recommended by the United States Preventive Services Task Force (USPSTF) without cost sharing (i.e., no co-pays, deductibles or coinsurance).¹ The FAQs discuss the effect of the case in general and also address the effect on high-deductible health plans (HDHPs) as well as the Coronavirus, Aid, Relief, and Economic Security (CARES) Act’s rapid coverage of preventive services and vaccine requirements implemented during the COVID-19 pandemic.

Note: The Department of Justice filed an appeal in the Braidwood case on March 31, 2023, followed by a motion for a stay on April 12, 2023. Although the litigation is ongoing, the departments state in FAQs Part 59 that they encourage group health plans to continue providing preventive care in accordance with the intent of the ACA, even if not required as a result of any final court decisions.

FAQs Part 59

The departments issued the new FAQs to provide initial guidance on how Braidwood affects the ACA requirement to cover certain preventive services without cost sharing. Additional guidance will likely be issued.

Preventive care generally (FAQs 1 – 6)

• A or B recommendations prior to ACA. Braidwood applies to items and services group health plans must cover without cost sharing “in response to an ‘A' or ‘B' recommendation by the [US]PSTF on or after March 23, 2010.” So, plans must continue to cover, without cost sharing, items and services recommended with an A or B rating by the USPSTF before March 23, 2010. The departments anticipate providing additional guidance with respect to the pre-March 23, 2010 recommendations.
• Changes to A or B recommendations since ACA. Following Braidwood, the departments may not implement or enforce changes made by the USPSTF to the items and services recommended with an A or B rating on or after March 23, 2010, including recommendations for breast care screening (2016), cervical cancer screening (2018) and colorectal screenings (2021); however, the departments strongly encourage plans and issuers to continue full coverage of such services.
• Overlapping and non-USPSTF recommendations. Braidwood does not affect the ACA requirements to fully cover immunizations recommended by the Advisory Committee on Immunization Practices (ACIP) or preventive care and screenings for infants, children and adolescents, as well as for women as provided for in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA), including contraceptive coverage, immunizations, cervical cancer screening and pediatric preventive care. Some of these overlap with USPSTF requirements.
• State preventive care. Braidwood does not affect applicable state laws. States may still enact or enforce their own laws that require full coverage, without cost sharing, for items and services covered in the court decision.
• Plan document changes. Although not required by Braidwood, if a plan decides to make changes to its preventive care coverage in light of the ruling, the plan should consider the effect of other state and federal laws and contractual agreements (including collective bargaining agreements) before implementing the changes. The plan must also issue any required notices about the coverage changes, including the summary of benefits and coverage (at least 60 days prior to a material modification) and the summary of material modifications (within 60 days of the adoption of a material reduction in benefits).

HDHPs/Preventive care (FAQ 7)

After Braidwood, an HDHP may, until further guidance is issued, continue to provide benefits for items and services recommended with an A or B rating by the USPSTF on or after March 23, 2010, before the minimum annual deductible is met regardless of whether they must be covered without cost sharing under the ACA.

Rapid coverage of preventive services and vaccines for coronavirus (FAQ 8)

Under the CARES Act, non-grandfathered group health plans must cover, without cost sharing, any qualifying coronavirus preventive service, including those recommended by the USPSTF and those recommended by ACIP. Coverage must begin 15 business days after the date of the recommendation. According to the FAQs, plans must continue to cover immunizations recommended by ACIP without cost sharing, but because the USPSTF has not recommended any qualifying coronavirus preventive services with an A or B rating, the Braidwood decision has no related effect on plans.

Going forward

Employers should monitor developments in the Braidwood case to determine next steps. If the court’s decision holds, then employers must determine whether they will continue to provide preventive care recommended by the USPSTF after March 23, 2010. Plans have the following options:

• Stop covering the recommended preventive care.
• Retain their current ACA preventive care provisions (including no cost sharing).
• Continue to cover the preventive care but add cost sharing for these services.

While plans can change the ACA preventive care provisions that are blocked by Braidwood, they must continue to cover preventive care in place before the ACA (i.e., before March 23, 2010), as well as preventive care under ACIP and HRSA, without cost sharing (including COVID-19 preventive care and immunizations recommended by ACIP and HRSA).

¹ See “Federal court issues nationwide injunction on some ACA preventive care,” Insider, April 2023.