Employers to continue covering preventive care after SCOTUS decision
Today, the U.S. Supreme Court ruled in a case implicating preventive care services that nongrandfathered group health plans must cover without cost-sharing (Kennedy v. Braidwood Management Inc.). As a result, group health plans must continue to cover “A” and “B” recommendations made by the U.S. Preventive Services Task Force.
The question before the Court concerned the USPSTF’s authority. Challengers argued that members of the task force are “principal officers” who should have been appointed by the president and confirmed by the Senate. Because they weren’t, the challengers argued that all recommendations made or modified since the passage of the Affordable Care Act’s preventive services mandate are unenforceable. A majority of the Court disagreed, finding the members are “inferior officers” who have been, and continue to be, properly appointed by the Secretary of Health and Human Services. Accordingly, all of the task force’s recommendations since the ACA was enacted in 2010 are enforceable.
Employer coverage
Under the ACA, nongrandfathered insured and self-funded group health plans must provide preventive services in-network without participant cost sharing, meaning without deductibles, copayments or coinsurance – sometimes called “first-dollar coverage.” Specifically, these services are:
- USPSTF evidence-based items or services with an “A” or “B” rating;
- Advisory Committee on Immunization Practices recommendations for immunizations for routine use in children, adolescents, or adults;
- Health Resources & Services Administration recommendations and guidelines for infants, pediatric and adolescent evidenced-based preventive care and screenings; and
- HRSA guidelines for evidence-based preventive care and screenings for women, including FDA-approved contraceptives.
In addition, the CARES Act (Sec. 3203) requires group health plans to cover without cost-sharing any qualifying coronavirus preventive item, service, or immunization to prevent or mitigate COVID-19.
Earlier this year we surveyed employers with 500 or more employees about their most likely response if they were no longer required to provide ACA-mandated preventive services without cost-sharing. The largest portion – 64% – said they would most likely make no changes to their current no-cost-sharing coverage. Following today’s decision, employer group health plans (other than grandfathered plans) must continue to cover without cost-sharing the preventive service recommendations made by the entities in each of the four categories noted above.
Next steps
Nongrandfathered group health plans must continue to cover ACA-mandated preventive services – according to the USPSTF, ACIP, HRSA recommendations and guidelines. However, a challenge to the authority of ACIP and HRSA to make preventive service recommendations that require no-cost-sharing health plan coverage is still under review by the lower courts. Employers may want to monitor this litigation, but until those questions are resolved, the coverage requirement will remain in effect.
Lastly, employers may want to watch for changes to preventive service recommendations from these organizations and consider whether they might continue no-cost coverage of particular preventive services if current recommendations are rescinded. Given today’s ruling confirming the HHS Secretary’s authority to remove current USPSTF members and appoint new ones, we may see a change to the task force’s membership, as occurred with ACIP recently.
