FAQs About Affordable Care Act and Coronavirus Aid, Relief, and Economic Security Act Implementation Part 59 (Apr. 13, 2023)
The DOL, HHS, and IRS have jointly issued FAQs (Part 59) addressing the impact of the recent court decision in Braidwood Management Inc. v. Becerra on the requirement to cover certain preventive health services without cost-sharing. As background, the Affordable Care Act (ACA) requires group health plans and insurers to provide specified preventive services without cost-sharing, including certain evidence-based items and services recommended by the United States Preventive Services Task Force (USPSTF), the Health Resources and Services Administration (HRSA), and the Advisory Committee on Immunization Practices (ACIP) (see our Checkpoint Question of the Week). In Braidwood, a federal trial court held that the members of USPSTF—but not HRSA or ACIP—lacked the authority to determine the preventive services that must be covered by private health plans (see our Checkpoint article). The court vacated all agency actions to implement or enforce the preventive services mandate in response to a USPSTF “A” or “B” recommendation issued on or after March 23, 2010 (see our Checkpoint article). Here are highlights of the FAQs:
USPSTF Recommendations. Although Braidwood prevents the agencies from implementing and enforcing coverage requirements for items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010, the decision does not preclude plans and insurers from continuing to provide the full extent of such coverage. Furthermore, Braidwood does not affect items and services recommended with an “A” or “B” rating by the USPSTF before March 23, 2010, or recommendations by the ACIP and HRSA. The agencies recognize that the USPSTF has updated a significant number of the recommendations since March 23, 2010 (e.g., by changing the recommendation so that it applies to different populations or to a different subset of items or services) and anticipate providing additional guidance regarding these recommendations.
HDHP Safe Harbor. Explaining that a health plan will not fail to qualify as a high-deductible health plan (HDHP) merely because it provides preventive care without a deductible as required by the ACA (see our Checkpoint article), the agencies instruct that until further guidance is issued, items and services recommended with an “A” or “B” rating by the USPSTF on or after March 23, 2010, will be treated as preventive care for purposes of the HDHP preventive care safe harbor, regardless of whether these items and services must be covered without cost-sharing under the ACA.
COVID-19 Vaccine Coverage. According to the agencies, the USPSTF currently has not recommended any qualifying coronavirus preventive services with an “A” or “B” rating, so there is no impact on coverage of these services. Because Braidwood does not change the requirement to cover without cost-sharing immunizations recommended by ACIP, plans and insurers must continue to provide such coverage for any qualifying coronavirus preventive service, including COVID-19 vaccines and their administration (see our Checkpoint article).
EBIA Comment: Employers and others considering changes to their plans’ preventive health services coverage should proceed with caution since they may still be required to cover the full scope of recommended preventive services under other legal and contractual requirements. For instance, Braidwood does not affect state-law requirements, and the terms of contracts may prevent midyear changes. In addition, the government has requested a stay pending appeal of the decision, so these rules remain in flux. For more information, see EBIA’s Health Care Reform manual at Section XII.C (“Coverage of Preventive Health Services”) and EBIA’s Group Health Plan Mandates manual at Section XIV.C (“Required Preventive Health Services Coverage”). See also EBIA’s Self-Insured Health Plans manual at Section XIII.C.1 (“Preventive Health Services”) and EBIA’s Consumer-Driven Health Care manual at Section X.G (“HSAs: Required HDHP Coverage: Preventive Care”).
Contributing Editors: EBIA Staff.