Regulatory Resources
Updated: 5-16-2023
UPDATE: 5th Circuit Court of Appeals Grants Temporary Stay in Braidwood Case
On May 15, 2023, the 5th Circuit Court of Appeals granted a temporary stay in the Braidwood Management Inc v. Becerra district court case, effectively restoring the Affordable Care Act’s mandate to cover preventive services recommended or updated by the USPSTF.
Background
Federal law and applicable regulations require non-grandfathered group health plans and insurers offering non-grandfathered group or individual health insurance to cover, without cost-share, the following items and services:- Evidence-based items or services with a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force (USPSTF), except for the recommendations of the USPSTF regarding breast cancer screening, mammography, and prevention issued in or around November 2009 (such recommendations issued before 2009 remain in effect until January 1, 2025);
- Immunizations for routine use in children, adolescents, and adults that have in effect a recommendation from the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC); and
- Regarding women, infants, children and adolescents, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA).
Braidwood Management Inc v. Becerra District Court Decision
A lawsuit was filed by Christian-owned businesses and six individuals in Texas alleging that1) the requirements in the law for specific expert committees and a federal government agency to recommend covered preventive services is unconstitutional, and
2) the requirement to cover pre-exposure prophylaxis (PrEP), medication for HIV prevention, violates their religious rights.
On March 30, 2023, Judge Reed O’Connor at the U.S. District Court in the Northern District of Texas issued a ruling:
- Striking down part of the requirement for no-cost coverage of preventive services recommended or updated by the USPSTF on or after March 23, 2010, and
- Finding that the requirement to cover PrEP medications for HIV prevention violates the right of the plaintiffs who have religious objections to PrEP.
On March 31, 2023, the federal government filed a notice of appeal, and on April 12, 2023, a motion for a stay (i.e. a request that the ruling not go into effect until the decision on the appeal is issued).
FAQs — Part 59
Coverage of Preventive Services
On April 13, 2023, federal regulators issued FAQs – Part 59 providing guidance in response to the Braidwood decision. The FAQs reiterate that plans and insurers must continue to cover, without cost-sharing, items and services recommended with an “A” or “B” rating by the USPSTF before March 23, 2010. Federal regulators anticipate providing additional guidance on pre-March 23, 2010, recommendations. As a result of the Braidwood decision, Federal regulators are prevented from implementing and enforcing the coverage mandates for items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010. However, federal regulators strongly encourage plans and insurers to continue to cover such items and services without cost sharing.The FAQs reiterate that the Braidwood court decision did not affect the ACIP immunization recommendations, nor the women, infants, children and adolescents preventive care and screenings provided in guidance from HRSA, nor the requirement for non-grandfathered plans to cover them without cost share. Also, the Braidwood decision does not generally affect the application of state laws that require health insurers to provide coverage, without cost sharing, for items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010.
If a plan or insurer is permitted and elects to make changes to coverage, the plan or insurer must comply with applicable notice requirements when making any changes to the terms of coverage for items and services recommended by the USPSTF. This includes complying with the 60-day prior notice requirement when a group health plan or insurer make a material modification to any terms of the plan or coverage that would affect the content of the SBC, that is not reflected in the most recently provided SBC and that occurs other than in connection with a renewal or reissuance of coverage. In addition, an ERISA plan generally must provide a summary of material reduction in covered services or benefits within 60 days of adoption.