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As expected, right-wing hack judge delivers body blow to ACA preventative services requirement [1]
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Date: 2023-03-30
x 🚨Judge Reed O'Connor STRIKES DOWN a major provision of the Affordable Care Act requiring insurers to cover a vast amount of preventive care cost-free (contraception, cancer screening, PrEP, a ton of pregnancy-related care). The ruling applies nationwide.
https://t.co/wL26vkIPsd — Mark Joseph Stern (@mjs_DC) March 30, 2023
It’s important to keep several things in mind:
First: This could very well be overturned on appeal. O’Connor is the same hack who tried to strike down the entire ACA a couple of years ago and was overruled by the U.S. Supreme Court...yes, the 6-3 GOP U.S. Supreme Court.
Second: Current insurance carrier contracts are generally locked in through the end of December, so any actual fallout from this ruling likely won’t happen until January 2024, assuming there isn’t a stay put on the ruling pending appeal beyond then.
Third: Just in case it isn’t clear below, not every item on the list is at risk, but a lot of them are. There’s 3 different governmental bodies which make recommendations for which services should be covered at no cost to the enrollee; the lawsuit targets one of them, but I’m not sure which services fall into which category.
Fourth: There are currently 14 states which mandate the same preventative care services at no cost as the ACA: CA, CO, CT, DE, ME, MD, MN, NM, NJ, NY, OR, VA, VT & WA. Hoping other states follow quickly.
Even so, this is still a BIG FUCKING DEAL.
Harris Meyer originally wrote about this back in March 2021...
With a challenge to the Affordable Care Act still pending at the Supreme Court, conservatives are continuing to launch legal attacks on the law, including a case in which a Texas federal judge seems open to ending the requirement that most Americans must receive preventive services like mammograms free of charge. Businesses and individuals challenging the ACA’s first-dollar coverage mandate for preventive services have legal standing and legitimate constitutional and statutory grounds to proceed with their lawsuit to overturn it, U.S. District Judge Reed O’Connor ruled late last month in Fort Worth. O’Connor, who previously found the entire ACA to be unconstitutional, denied most of the federal government’s motion to dismiss the case, Kelley v. Azar. The plaintiffs cite religious and free-market objections to the ACA requirement in their class action suit against the government seeking to halt enforcement of the requirement.
If the name "Reed O'Connor" rings a bell, that's no coincidence; he's the GOP hack judge who nearly sank the entire ACA via the absurdly stupid "CA v. TX" lawsuit a couple of years back.
I wrote about this case, "Kelley v. Becerra" a little over a year ago:
What's at issue here is whether or not the three governmental bodies referred to (the Preventive Services Task Force (PSTF), the Advisory Committee on Immunization Practices (ACIP) and the Health Resources and Services Administration (HRSA)) have the Constitutional authority to dictate what services/treatments have to be covered by health insurance carriers or not.
As you may have guessed, of course, there's a deeper agenda at play here, as laid out by Ian Millhiser last spring:
The plaintiffs in Kelley are an array of religious conservatives, and what Judge O’Connor labels as “Free-Market Plaintiffs,” who wish to purchase health plans that do not cover some of the preventive services that insurers are currently required to cover. Some of these plaintiffs, for example, object to a requirement that insurers pay for pre-exposure prophylaxis (“PrEP”), drugs that are very effective in preventing the transmission of HIV, because those plaintiffs believe that PrEP “encourage[s] and facilitate[s] homosexual behavior.”
(sigh) OK, so what's the actual basis of the case, and what's at stake here? Well, besides PrEP and contraceptive products/services such as IUDs and Nexplanon (which, let's face it, are pretty clearly the main reason for the lawsuit), there's a whole bunch of other stuff as well.
Here's the main list of preventative services which have to be covered by all ACA-compliant healthcare policies at no out of pocket charge to the enrollee (as long as they're done by an in-network provider):
Abdominal aortic aneurysm one-time screening for men of specified ages who have ever smoked
Alcohol misuse screening and counseling
Aspirin use to prevent cardiovascular disease and colorectal cancer for adults 50 to 59 years with a high cardiovascular risk
Blood pressure screening
Cholesterol screening for adults of certain ages or at higher risk
Colorectal cancer screening for adults 45 to 75
Depression screening
Diabetes (Type 2) screening for adults 40 to 70 years who are overweight or obese
Diet counseling for adults at higher risk for chronic disease
Falls prevention (with exercise or physical therapy and vitamin D use) for adults 65 years and over, living in a community setting
Hepatitis B screening for people at high risk, including people from countries with 2% or more Hepatitis B prevalence, and U.S.-born people not vaccinated as infants and with at least one parent born in a region with 8% or more Hepatitis B prevalence.
Hepatitis C screening for adults age 18 to 79 years
HIV screening for everyone ages 15 to 65, and other ages at increased risk
PrEP (pre-exposure prophylaxis) HIV prevention medication for HIV-negative adults at high risk for getting HIV through sex or injection drug use
Immunizations for adults — doses, recommended ages, and recommended populations vary
Lung cancer screening for adults 50 to 80 at high risk for lung cancer because they’re heavy smokers or have quit in the past 15 years
Obesity screening and counseling
Sexually transmitted infection (STI) prevention counseling for adults at higher risk
Statin preventive medication for adults 40 to 75 at high risk
Syphilis screening for adults at higher risk
Tobacco use screening for all adults and cessation interventions for tobacco users
Tuberculosis screening for certain adults without symptoms at high risk
The list above applies to everyone enrolled in an ACA plan; there are other lists which apply to women and children under 18 respectively:
Services for pregnant women or women who may become pregnant: Breastfeeding support and counseling from trained providers, and access to breastfeeding supplies, for pregnant and nursing women
Birth control: Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling, as prescribed by a health care provider for women with reproductive capacity (not including abortifacient drugs). This does not apply to health plans sponsored by certain exempt “religious employers.” Learn more about contraceptive coverage.
Folic acid supplements for women who may become pregnant
Gestational diabetes screening for women 24 weeks pregnant (or later) and those at high risk of developing gestational diabetes
Gonorrhea screening for all women at higher risk
Hepatitis B screening for pregnant women at their first prenatal visit
Maternal depression screening for mothers at well-baby visits (PDF, 1.5 MB)
Preeclampsia prevention and screening for pregnant women with high blood pressure
Rh incompatibility screening for all pregnant women and follow-up testing for women at higher risk
Syphilis screening
Expanded tobacco intervention and counseling for pregnant tobacco users
Urinary tract or other infection screening Other covered preventive services for women: Bone density screening for all women over age 65 or women age 64 and younger that have gone through menopause
Breast cancer genetic test counseling (BRCA) for women at higher risk
Breast cancer mammography screenings
Every 2 years for women 50 and over
As recommended by a provider for women 40-49 or women at higher risk for breast cancer
Breast cancer chemoprevention counseling for women at higher risk
Cervical cancer screening
Pap test (also called a Pap smear) for women ages 21 to 65
Chlamydia infection screening for younger women and other women at higher risk
Diabetes screening for women with a history of gestational diabetes who aren’t currently pregnant and who haven’t been diagnosed with type 2 diabetes before
Domestic and interpersonal violence screening and counseling for all women
Gonorrhea screening for all women at higher risk
HIV screening and counseling for everyone ages 15 to 65, and other ages at increased risk
PrEP (pre-exposure prophylaxis) HIV prevention medication for HIV-negative women at high risk for getting HIV through sex or injection drug use
Rh incompatibility screening follow-up testing for women at higher risk
Sexually transmitted infections counseling for sexually active women
Syphilis screening for women at increased risk
Tobacco use screening and interventions
Urinary incontinence screening for women yearly
Well-woman visits to get recommended services for all women Coverage for children’s preventive health services Alcohol, tobacco, and drug use assessments for adolescents
Autism screening for children at 18 and 24 months
Behavioral assessments for children
Bilirubin concentration screening (PDF, 609 KB) for newborns
Blood pressure screening for children
Blood screening for newborns
Depression screening for adolescents beginning routinely at age 12
Developmental screening for children under age 3
Dyslipidemia screening (PDF, 609 MB) for all children once between 9 and 11 years and once between 17 and 21 years, and for children at higher risk of lipid disorders
Fluoride supplements for children without fluoride in their water source
Fluoride varnish for all infants and children as soon as teeth are present
Gonorrhea preventive medication for the eyes of all newborns
Hearing screening for all newborns; and regular screenings (PDF, 609 KB) for children and adolescents as recommended by their provider
Height, weight and body mass index (BMI) measurements (PDF, 609 KB) taken regularly for all children
Hematocrit or hemoglobin screening for all children
Hemoglobinopathies or sickle cell screening for newborns
Hepatitis B screening for adolescents at higher risk
HIV screening for adolescents at higher risk
Hypothyroidism screening for newborns
PrEP (pre-exposure prophylaxis) HIV prevention medication for HIV-negative adolescents at high risk for getting HIV through sex or injection drug use
Immunizations for children from birth to age 18 — doses, recommended ages, and recommended populations vary
Lead screening for children at risk of exposure
Obesity screening and counseling
Oral health risk assessment (PDF, 609 KB) for young children ages 6 months to 6 years
Phenylketonuria (PKU) screening for newborns
Sexually transmitted infection (STI) prevention counseling and screening for adolescents at higher risk
Tuberculin testing for children at higher risk of tuberculosis ages: 0 to 11 months, 1 to 4 years, 5 to 10 years, 11 to 14 years, 15 to 17 years
Vision screening for all children
Well-baby and well-child visits
Going back to Meyer's original piece, it's important to note that it's not just ACA plans which could be impacted:
“This is a huge deal,” said Tim Jost, a retired Washington & Lee University law professor who tracks ACA litigation and has written about the suit and other efforts by conservative groups in Texas to undermine the ACA and other health policies. “It’s billions and billions of dollars of services that Americans get every year, not just from ACA health plans but also from employer plans. If this benefit ends, it would mean a lot of people would forgo preventive services and end up with much worse medical problems.” ...The ACA’s elimination of cost sharing for screening of colorectal cancer led to a significant increase in the number of colorectal cancer cases diagnosed at an early stage in Medicare beneficiaries, according to a 2017 Health Affairs study.
I don't know how many of these are pre-2010 safe or post-2010 at risk, but it's a long list...and speaking of more recent developments...
Most startling, coverage for COVID-19 vaccines would be threatened. In the 2020 CARES Act, Congress required insurers to cover any pandemic-related preventive services or immunizations recommended by PSTF or ACIP. Because ACIP has recommended the Pfizer, Moderna, and J&J vaccines, private insurers must cover them without cost-sharing. The same goes for any boosters that ACIP recommends. If the current lawsuit succeeds, however, private insurers could start billing for future vaccinations.
Recently, Rachel Schwab and Nia Gooding of the Georgetown University Center on Health Insurance Reforms gave an update on some additional details which make this case just so much more lovely...
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