Preventive Services at Risk: What to Know about Braidwood v. Becerra

A federal judge in Texas recently issued a decision in Braidwood v. Becerra that would significantly diminish the Affordable Care Act (ACA) preventive services mandate by allowing private health insurance companies to deny coverage or require cost sharing for services like lung cancer screenings, HIV prevention and screenings, including pre-exposure prophylaxis (PrEP) for HIV prevention, and cholesterol medication for people at risk for heart disease. The judge also found that the requirement to cover PrEP violated the plaintiff's rights under the Religious Freedom Restoration Act. The decision's effects are on hold while the Fifth Circuit considers the case, but would impact affordable access to essential healthcare services for about 100 million people.

For more than a decade, the Affordable Care Act (ACA) has required most private health insurance plans cover preventive care from in-network providers with no co-pay or co-insurance if the care was recommended by one of three entities: The Preventive Services Task Force (PSTF), the Health Resources and Services Administration (HRSA), or the Advisory Committee on Immunization Practices (ACIP).

Now, if this decision goes into effect, care that was approved by the PSTF prior to the passage of the ACA will still be covered, but with the same guidelines that were in place in March 2010 when the ACA was signed into law. For example, colorectal cancer screenings for people over 50 must remain covered with no cost-sharing, but such screenings will not necessarily be covered or may come with cost-sharing for people 45-49. New treatments will not need to be covered and can require cost-sharing. PrEP, for example, was a huge breakthrough in preventing HIV transmission and reduces the risk of contracting HIV by 99%. Even if a patient's insurance chooses to cover PrEP, the patient may find the associated co-pay too high because these drugs are so expensive or that the cost of the regular lab work required to take PrEP is too high with cost-sharing. Certain preventive care for people assigned female at birth (including contraception, prenatal care, and more) and coverage for vaccinations will not be affected because their coverage is determined by HRSA or ACIP respectively.

The decision is currently being reviewed by the Fifth Circuit Court of Appeals. The effects are on hold for everyone except the plaintiffs in the case, in what is called a "stay pending appeal." The court could take more than a year to reach a final decision in the case. That decision will likely also be appealed to the U.S. Supreme Court regardless of the outcome.

There is a chance that the Fifth Circuit or Supreme Court will make matters worse, in one or more ways. One, they could find that the HRSA and ACIP guidelines are also unconstitutional; two, while the case is about private insurance, the ultimate decision might also implicate coverage requirements for people with Medicaid who would have qualified before the ACA, people with Medicaid who wouldn't have qualified before the ACA, or both. Medicare is not likely to be affected by any ruling in the current case.