Lawsuit in Texas could end free preventive checkups required by Affordable Care Act

When Congress passed the Affordable Care Act in 2010, its authors cited three overarching goals: improving access to health care, slowing rising medical costs, and improving health outcomes.

One of the main ways to achieve these three missions was to require health insurers to provide preventive health care services at no cost to patients. If there were no financial barriers, funders argued, patients would be more likely to get preventive services, from colonoscopies to vaccinations to heart disease screenings, which would help keep people healthier and out of hospital and therefore reduce health care costs.

Thanks to this requirement, more than 150 million Americans now have free access to dozens of preventive health measures, sparing many diseases and catching diseases earlier for others.

Now, a federal lawsuit heard in Texas last month could overturn or even eliminate the law’s preventive care requirement, known as Obamacare or ACA. A group of patients and employers argue that this requirement is unconstitutional. They also argue that some preventative health measures violate protections under the Religious Freedom Restoration Act of 1993 that prohibit federal and state rules from unduly burdening the exercise of religion.

The federal judge hearing the case in 2018 declared the Affordable Care Act unconstitutional.

The ACA’s provisions “bar these plaintiffs from buying health insurance unless they agree to pay for preventive care coverage they don’t want or need” and prevent them from buy cheaper health insurance without that coverage, they argue.

And a requirement that health plans pay for a drug that prevents HIV “requires religious employers to provide coverage for drugs that facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and illicit drug use.” intravenous,” the group argues.

Neither the attorneys representing the plaintiffs in the case nor the US Department of Health and Human Services (HHS), the defendant, responded to requests for comment.

The federal judge hearing the case, Reed O’Connor of the U.S. District Court for the Northern District of Texas, declared the Affordable Care Act unconstitutional in 2018, before being struck down by the U.S. Supreme Court in 2021. fear that he will rule in favor of the plaintiffs in the new case.

“This judge has shown he’s not shy about striking down the entire Affordable Care Act and issuing nationwide injunctions,” said Wayne Turner, senior attorney at the National Health Law Program, who advocates on behalf of health equity and access to health care for underserved populations. . O’Connor has a history of issuing nationwide injunctions involving federal laws, including the ACA.

And ACA supporters are unconvinced that a ruling overturning preventive health requirements would be overturned by the conservative United States Court of Appeals for the 5th Circuit or ultimately by the United States Supreme Court, with its majority of Republican-appointed judges.

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Eliminating the preventive care mandate, many health policy analysts agree, could have far-reaching and dramatic effects, potentially forcing millions of patients to postpone or overlook health exams that could catch diseases early.

The requirement provides free access to preventive health services that have improved people’s health, said Sara Collins, senior researcher and vice-president of the Commonwealth Fund, a private foundation promoting quality and equitable health care. Forcing people to pay for these services, she said, would inevitably create a chilling effect, likely leading to undetected and untreated health problems.

More than 60 professional medical organizations, including the American Medical Association, issued a joint statement last month warning of the dire consequences of overturning the provision.

“Removing this access would reverse important progress and make it harder for doctors to diagnose and treat diseases and medical conditions that, if detected early, are much more manageable,” the statement said. “Patients would lose access to vital preventive healthcare services such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, obesity, diabetes, preeclampsia and hearing, as well as child visits and access to vaccinations essential to maintaining a healthy population.

Twenty Democratic-leaning states and Washington, DC, have signed a brief supporting the federal government in the lawsuit. Conservative states did not weigh in, and no prominent GOP leader championed the plaintiffs’ cause. Despite repeated attempts by Republicans to overturn the ACA, polls show the law remains popular with Americans.

Several million people could potentially be affected by a legal victory for the plaintiffs. An HHS analysis in January found that more than 150 million people with private medical coverage have access to dozens of free preventative health services as a result of the requirement. Tens of millions of others in Medicare and Medicaid also benefit from the provisions, according to the report.

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The requirement applies to almost all private health plans, including employer-sponsored plans and individual and small business plans sold in ACA marketplaces. It also applies to Medicare and Medicaid beneficiaries who joined this program as a result of a Medicaid expansion allowed under the ACA for adults whose incomes can reach 138% of the poverty level. (With few exceptions, it is up to each state to determine whether preventive services are free for low-income Medicaid participants, but all Medicaid cost-sharing fees are nominal.)

According to a July report by the Urban Institute, a nonprofit research organization, health plans now cover more than 100 preventative health services at no cost to patients. These include screening and counseling for alcohol abuse and obesity, screenings for blood pressure and depression, and vaccinations.

For children and adolescents, insurers must provide free coverage for alcohol, tobacco and drug use assessments, newborn hearing screening, blood pressure screening, screening for abnormalities in development in children under 3 years of age and all routine vaccinations. For women, the requirement includes screenings for anxiety, breast and cervical cancer and signs of domestic violence, as well as breastfeeding services and supplies, contraception, screenings for gestational diabetes for pregnant women and diabetes after pregnancy and preventive health visits.

Even if O’Connor sides with the plaintiffs, he has other options than to cut all preventive care services. It could, for example, exempt certain services, such as the provision of pre-exposure prophylaxis, or PrEP, a drug used to prevent HIV and stop its transmission. He could also issue an injunction to preserve the current policy until appeals have been heard.

States can require coverage for preventative health services, but that would only apply to individual health plans and small businesses, not large employer plans, which the federal government regulates. According to a 2019 Commonwealth Fund article, by that date Connecticut, Louisiana, Maine, New Mexico, Vermont and Washington had done so.

The plaintiffs in the lawsuit, Kelley v. Becerra, include individual Texas patients as well as owners of a Fort Worth orthodontic practice and the owner of a Houston “health and wellness center”, both of which provide health insurance to employees and describe themselves as adhering to Christian values.

They object to having to pay for health insurance coverage for services they don’t want or need, such as contraceptives, PrEP, and sexually transmitted disease screenings. They also have religious objections to providing some of these services.

The “Becerra” named as a defendant in the lawsuit is Xavier Becerra, the current secretary of HHS. The original defendant in 2020, when the lawsuit was filed, was Alex Azar, then President Donald Trump’s HHS secretary.

In the lawsuit, the plaintiffs advance two main arguments, one related to the process of selecting the preventive health measures covered by the law, and the other, a religious objection to two specific services that are covered.

In the first argument, the plaintiffs claim that Congress improperly delegated authority to the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices, and the Health Resources and Services Administration to choose which preventive health measures would be covered by law. .

These agencies, some of which are made up of nongovernmental representatives, were not appointed by the president or confirmed by the Senate, the lawsuit says.

The plaintiffs also object to the requirement that insurers provide free contraceptive and PrEP coverage. They argue that this forces employers and health insurance marketplaces to offer health plans that cover services that might conflict with employers’ or individuals’ religious beliefs.

Roger Severino, vice president of the conservative Heritage Foundation, said the plaintiffs were correct on both counts: HHS improperly enacted specific preventative health measures mandated by law, and religious objections should prevail.

“There should be a wide margin to ensure people aren’t forced to violate their private beliefs when there are other options,” Severino said.

The federal government and ACA supporters refute the argument that HHS incorrectly created the list of preventative health measures covered by the law. Ultimately, they pointed out, the various agencies did not set the policy; the secretary of HHS did it.

Other critics have expressed dismay that plaintiffs oppose measures, such as PrEP coverage, intended to save lives.

“It’s special to me that the plaintiffs are against the use of drugs to prevent people from becoming infected with a terrible disease,” said Wayne Turner of the National Health Law Program. “It’s also strange that animosity towards a particular population leads you to try to eliminate the entire requirement for preventive care. It is extraordinary, disturbing and sad.

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