by John R. Fischer
, Senior Reporter | April 18, 2023
Gearing up for an appeal of a federal judge’s decision last month to invalidate parts of the Affordable Care Act related to no-cost preventive care services, the U.S. Justice Department said it will request a legal hold on the ruling, which would affect roughly 150 million people.
Judge Reed O’Connor, of the U.S. District Court for the Northern District of Texas, ruled
in late March that recommendations made by the Preventive Services Task Force after the ACA's enactment in 2010 on which preventive care services should be provided to patients free-of-charge were unlawful because the panel's membership process violates the Constitution’s Appointments Clause. Services affected included heart conditions and screenings for some cancers, as well as anti-tobacco programs.
He also said requiring individuals and companies to cover certain services, such as HIV-preventive measures like PrEP, STD testing and contraceptives, violated their religious beliefs by “making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”
In a statement, a Justice Department spokesperson said that the ACA has “ensured that millions of Americans have access to critical preventative healthcare. In order to protect Americans who have come to rely on the preventative healthcare measures at issue, the Department of Justice will request a stay in this case.”
The Department has yet to file its motion for a stay to initiate an appeal process, and it did not say if it would first request a stay from O’Connor, or instead go right to an appeals court.
Filed in 2020, the case was brought forward by eight individuals and two businesses, all from Texas, who said no-cost mandates were unlawful because USPSTF members are not appointed by the president, violating the appointments clause of the U.S. constitution, and that covering HIV-preventive measures violated their rights under the Religious Freedom Restoration Act of 1993.
While insurers will still need to abide by mandates made before the enactment of the ACA, for those after, they can require the patient to pay part of the bill, such as CT colonography and stool-based tests for colorectal screenings starting at age 45, a recommendation made in 2021 in response to what the Task Force said was a rise in young-onset colorectal cancer.
“Patients may choose to forgo non-covered screening services, resulting in more disease being discovered later when treatment is less effective. With respect to cancer screening, that means more deaths and more negative health outcomes. The effects of co-pays and deductibles would severely impact individuals most at risk and with the least ability to pay, including minorities and those in underserved areas,” Gloria Romanelli, JD, senior director of regulatory relations, legal counsel, quality and safety at the American College of Radiology, told HCB News.
Following the ruling, insurance trade associations said coverage would not be immediately disrupted.