Yesterday, a federal district court judge in North Texas handed down the remedy to his Fall 2022 ruling that the preventive care and PrEP (pre-exposure prophyslasis preventive pills for HIV infection avoidance) no-cost sharing benefit mandates in the ACA were either unconstitutional or illegal. The PrEP rule was struck on religious liberty grounds of the plaintiff but only for the plaintiff. The preventive care ruling was struck nationwide on constitutional grounds for everything that was added to the list after 2010.
We have a preventive care mandate because if it is not there, there are few incentives in one year contracts with the option to leave or renew at the end of a year for insurers to pay for prevention. Anything more complex than a flu shot will not be cost-effective in a year from the payer’s point of view. Many preventive care services are value enhancing but not cost-saving. Mandates get around this problem. They are not completely effective at getting people preventive care (paper coming out next week on that topic!) but they help.
I am going to extensively quote Nick Bagley, a University of Michigan heath and admin law professor and a co-author of mine, as he explains things in a Health Affairs Forefront blog post:
Judge O’Connor hasn’t backed down. Earlier today, he issued a decision preventing the government from enforcing one of the ACA’s most significant and popular features: a requirement that all insurers cover certain preventive care services without asking patients to pay anything out of pocket. The U.S. Department of Health and Human Services estimates that about 150 million individuals in private health plans and 80 million individuals with Medicare and Medicaid have benefited from the policy….
The principles of value-based insurance design were embedded in section 2713 of the ACA. Under that provision, health insurers can’t require patients to pay anything out of pocket for preventive care services that have an A or a B rating from a federal advisory committee called the U.S. Preventive Services Task Force. That care must be free (or, rather, its costs are folded into your insurance premium).
Over the years, the Task Force has given more than 50 services an A or a B rating, including screenings for depression and cancer, medications to help people quit smoking, and drugs to reduce the odds of contracting HIV. Because of section 2713, those services are now available to patients for free…
Braidwood’s main legal claim rests on an obscure but significant provision of the U.S. Constitution called the Appointments Clause. Simplifying a bit, the Appointments Clause says that legally significant government decisions must be made by federal officers who are appointed by the president or by a department head. Braidwood argues that, because the members of the Preventive Services Task Force aren’t so appointed, they aren’t federal officers. Instead, they’re private experts who, by law, “shall be independent and, to the extent practicable, not subject to political pressure.”
That last part is not a banana pants argument to make given the past decade of Supreme Court rulings.
So what happens?
I would be shocked if the Department of Justice is not filing for stays at any and all levels it can.
There is likely disparate outcomes based on the type of insurance and the regulatory umbrellas your coverage operates under. The two basic types of insurance and thus regulatory regimes are fully insured where the insurer takes on full financial risk in return for a set premium over a constract length. Fully insured plans, including ACA policies, are mostly regulated by states. Self-insured plans use the insurer to run the administrative side of things while the employer takes on the financial risk of paying claims. Self-insured plans are mostly ERISA regulated. ERISA is almost anything goes. (My classmates in my health law class are putting their heads into their hands and groaning at my flippancy now).
Self-insured plans can do almost whatever they want if it is not expressly forbidden by federal law or a contract. Self-insured plans could plausibly contact their insurance company that merely acts as administrators and implement a mid-year benefit change to put some or all preventive care to cost-sharing of some sort. It might take a week or two to do the back end testing but that is purely a plumbing problem.
Fully insured contracts are almost always a year long contract. Individual contracts run through December 31, 2023. Small group contracts usually expire at the end of a quarter. I don’t think mid-year benefit changes can readily occur.
I would recommend that if you’re looking to get a preventive care service to both call your insurer to confirm the cost-sharing status AND get it down sooner rather than later.
Congress can step in and act. It would be a two section law. The first section would be to incorporate all recommendations from 2010 to present from the USPCTF into the no-cost sharing service requirement. The second section would be a mandate that the Secretary of Health and Human Services would have final approval on incorporating new USPCTF recommended services into the no cost sharing bucket with the ability to reject the recommendation.
This is probably a 2 page bill if Congress wants to fix the problem.
So we need to have control over the legislature again, or tack it onto some other must pass legislation in a way that won’t result in killing the bill then.
The odds of that being able to happen for the next ten years are depressingly low if we don’t hold the Senate this cycle, which is going to be a pretty iffy proposition.
Thanks for the explainer.
It’s infuriating to me that one crank judge can take a few words somewhere (14th century England!!) and break a system approved multiple times by Congress and the courts as a whole. But it’s the system that we have so we have to keep fighting them.
The radical rightwing ghouls strike again.
Obviously I don’t understand our legal system very well, but I don’t see why a North Texas judge gets to decide health care for the whole country. Texas already has an outsize influence on K-12 textbooks. Lots wrong with our methods of self-governance, starting with the electoral college.
Anonymous At Work
Easy solution is to have Secretary of HHS either agree (fait accompli), or issue a disagreement via APA process. Unbalanced but following Behavioral Economics principles that the preferred decision be the default and easy to make and the unpreferred options require additional effort.
However, assume good faith from Congress has been craptastic since Newt.
@stinger: I don’t understand that either. Can a judge in New Jersey also have that power over the entire country, or is that power reserved for the states in the former Confederacy? Goddamn “pro life” monsters.
Do these people not understand this stuff will not just kill liberals?
Anonymous At Work
@stinger: It’s not supposed to work that way, but Republican partisans appointed to the bench, especially inside the Fifth Circuit, ignore ethical principles for judges and issue nationwide injunctions on questionable grounds for partisan reasons. The Fifth Circuit is the most partisan and extreme Federal Appellate Circuit and accepts “to own the libs” as a justification for horrible decisions on a regular basis as well.
Finally, it should be struck down by Supreme Court but nothing can make any of these Courts rush. So, the Fifth Circuit knows this decision is wrong, horrible, and a legal travesty. However, it won’t act immediately on a request to stay the decision pending an appeal, puts the appeal on its docket for a few months, spends a few months writing an opinion, etc. Supreme Court won’t take up the appeal on the stay request, either, and waits a year for the Fifth Circuit’s appeal before possibly needing to hear another appeal in 6 months, and then adds a few months to write its own opinion.
tl;dr it’s all bad faith by partisans in robes that are increasingly emboldened to act like partisans.
Thank you for this post. It is terrifying to have your health at the mercy of the merciless. Will the fix be done? I hope so. But in the meanwhile so many will be unable to access care that can save unneeded misery. So much for the pro-life BS. Money really is their god.
The rightwing will pretend to attempt it, but will throw in a poison pill like abortion or contraception to ensure that it wont pass, and the liberals get the blame. Guaranteed.
i see the problem.
It’s hard to picture the party that has sworn to dismantle Obamacare suddenly saving it. Plus this yoyo will then declare it unconstitutional for Congress to pass such a law.
I’ll just remind everyone that this judge’s last foray into trying to strike down the ACA lost 7-2 at the Supreme Court in 2021.
Yeah, it’s obvious that especially for employer-based coverage, there are disincentives to preventative care. It’s one big game of hot potato since companies switch insurers so often.
That was our experience, anyway. Every year there were new choices of insurers, and even when the names of the insurers stayed the same, there were differences in coverage and costs. How much time is spent in the aggregate in corporate America by employees reading fine print instead of working at their jobs?
If one condition or another isn’t diagnosed this year, this years insurer doesn’t have to pay for any extra tests or treatments. That’s for the sucker insurance company that gets to cover that individual next year when the symptoms become too obvious to ignore.
On another note, I don’t know how you measure this but one result of regular preventive care when you are healthy is that when you finally do get a bad result — your blood sugars are too high, your mammogram shows suspicious calcifications, or whatever — you’ve already established an ongoing relationship with a doctor who can guide you through whatever comes next. They can offer options based on what they know about you and what would work best for you.
Every judicial attempt to kill or damage the ACA relies on the fact that when they punt it to Congress for a simple fix, Congress will not do so because it has either a majority or a large-enough-to-obstruct minority that wants the ACA dead. If Congress were actually willing and able to pass constructive legislation, none of this would matter.
Deputinize Eurasia from the Kuriles to St Petersburg
@Anonymous At Work:
There are people who will die of unscreened and undiagnosed preventable conditions as a result of this, but if it builds a third vacation home for some slick drawling white guy in a nice suit, then it has served its purpose.
As a lawyer with nearly 35 years in this fucking business, I can say that most of the judiciary is illegitimate, lazy and pathetic.
@Mimi haha: Ever since vaccines became generally available in 2021, COVID denialism has killed more conservatives than liberals but the right is still at it.
Back then we had Ruth Bader Ginsberg, Thomas had not totally succumbed to “happy wife means happy life” and Alito hadn’t decided that the real authority is the Witchfinder General.
I do think the mandates could survive. Prep is probably toast. There are 5 Justices who hold “religion” as supreme, as long as it’s THEIR religion and who want all the “perverts” to disappear.
…I guess the bright side is that THIS time, he didn’t do the non-severability thing and declare that this one section means the entire ACA is null and void.
@Percysowner: Nope. You are off by a few years.
@Percysowner: This isn’t going to kill the ACA, which is why it’s got more of a chance of succeeding, and the legal argument being put forward here doesn’t seem to be completely insane on the face of it.
If we were living in a universe in which Congress could actually pass laws, forcing them to put an appointed executive branch member in a position to make final calls on what does and doesn’t go on the list instead of it being an entirely unaccountable board of independent individuals seems like a reasonable ask, even.
@Percysowner: Only the stuff added to the list since the passage of the law, even, so not everything. It’s still bad, but this is about as minor of a blow to coverage as can be made. It also cuts off any mechanism for further additions to that list without congressional fixes, so it’ll cast a longer shadow, but the fix *is* easy, we just need a functional government for like a minute. We can muddle through for a bit, as long as things get better instead of worse politically, and if they get worse this won’t be high on the list of horrible things that’ll start happening.
Even if the Supreme Court upholds this, and they may not, this isn’t a sky is falling moment.
@Percysowner: @Omnes Omnibus: The only change to the Court since that decision is Brown Jackson for Breyer.
Ginsburg passed away two months before this case was heard. Coney-Barret voted with the 7-2 majority to kick the case on standing grounds. This ruling I think has a better chance of being upheld, but it’s not certain even with this court.
One interesting wrinkle here is that all the preventative recommendations in existence in 2010 remain on the books as zero copay. So that both provides a degree of protection AND and impetus to fix it because insurance companies are now on the hook for paying for outdated recommendations. That, while this not being quite as high tier of an issue as “whole ACA is unconstitutional” points toward this fix getting slipped into a future budget bill.
Not saying it’s going to happen, but the chance is non-zero.
Also, sure would be nice if Biden could get a nominee up for the current vacancy on the fifth circuit. Won’t fix things, but makes the potential of drawing a less banana pants panel that much higher.
@Eolirin: Right–the paralysis of Congress means that it’s possible for judges to blow permanent holes in the ACA by overturning bits of it and asserting that it’s up to Congress to fix them. Congress can then damage the law just by doing nothing. The judges’ arguments might be bad faith but in a sense the legislature is where the real systemic trouble is. It creates a power vacuum that the executive, the judiciary or both can step into.
They could solve this and most problems with a one-sentence bill:
“All judges appointed by Republicans are hereby thanked for their service and placed on retirement, effective immediately.”
Enough of this kabuki dance where we’re expected to pretend that the people sabotaging the system aren’t doing exactly what we can see what they’re doing.
Just phucking evil demons.
This may not be a foundational threat to the ACA, but it is the most critical part of the entire deal to me. It is the one benefit that EVERYONE got. Immediately. Free checkups. Free screenings. It gave everyone person in this country something to enjoy. Taking that away lets this become something for “those people”. I am quite worried.
Anonymous At Work
@Deputinize Eurasia from the Kuriles to St Petersburg: The other ACA rules limit the amount of Hookers-and-Blow that insurance types can make. This is about “owning the libs from behind a bench” by preventing anything and anyone liberal from effecting a law.
And IAAL as well. Judges and attorneys hold themselves in too high regard far too often. Irony and self-awareness are needed in the legal profession but are not not taught.
What would a law and regulations look like that would encourage preventive care and thus have a more healthy American population and also pass legal muster with Judge Conner? I don’t think there is one.
If this country continues to tie itself in (k)nots by legal decisions based on house-of-cards intricate legalisms floating in the air and not grounded by the real world of finding a way forward to help Americans be healthy, then I guess we’ll just be sick, and not just as a matter of our physical health.
We have friends who will die. This is very close to home for us. It’s clear that this judge and the plaintiff want our friends punished in the extreme.