Oct 25, 2022 - Health

ACA's preventative care requirement under attack

Illustration of hand with gavel breaking a red cross symbol.

Illustration: Sarah Grillo/Axios

Plaintiffs in an Affordable Care Act lawsuit are now asking a federal judge to toss all parts of the law requiring coverage of preventive health services.

Why it matters: The filing raises the stakes in the closely watched case, Kelley v. Becerra: If U.S. District Court Judge Reed O'Connor sides with the plaintiffs, millions of Americans could lose coverage for cancer screenings, behavioral counseling and other recommendations made by the U.S. Preventive Services Task Force.

  • The services are now covered without cost-sharing for 167.5 million Americans in ACA-compliant private health plans, per a July analysis from the Urban Institute.

What's happening: Late Monday, plaintiffs in the case led by former Texas solicitor general Jonathan Mitchell filed a motion asking O'Connor to rule that under the ACA, insurers cannot be required to cover preventive services at no cost to patients.

  • The court should set aside the Preventive Services Task Force's A and B recommendations because the task force was never appointed by Congress, and thus lacks the authority to say which services insurers must cover.

State of play: "If Judge O'Connor embraces what is being argued here, it essentially would make the preventive services requirement voluntary for insurance companies and employers," said Katie Keith, a health law expert at Georgetown University.

  • Without the requirement, health plans and employers can pick and choose which preventive services they cover.
  • They can also impose cost-sharing, meaning patients could first have to meet a deductible before the benefit kicks in, Keith added.

Catch up fast: O'Connor ruled last month that the government cannot require a Christian-owned company to cover HIV preventive treatments because it violates their religious rights.

  • O'Connor said at the time that the task force members are "unconstitutionally appointed," bringing into question whether their recommendations can be considered requirements under law.

What's next: The U.S. government, which is defending the law, has 30 days to file a response to the motion.

  • Based on the schedule set by the court, an order from the judge could come at some point early next year.

The intrigue: Legal experts expect O'Connor to rule in favor of the plaintiffs.

  • However, they note that when the same judge ruled in 2018 that the ACA was unconstitutional, he stayed his decision while the case continued to be litigated.

What we're watching: Regardless of what O'Connor decides, the ruling will likely be appealed and could potentially make it to the Supreme Court.

  • While justices have upheld the law before, the court's fortified conservative majority makes for uncertainty.

Go deeper: Court ruling on HIV meds could have sweeping implications for preventive care

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