Court Calls Into Question Key Portions of ACA Preventive Services Mandate

In a case challenging the preventive health services mandate of the Affordable Care Act (ACA), a federal trial court has held that a key portion of the mandate violates the U.S. Constitution and that requiring plan coverage of HIV preexposure prophylaxis (PrEP) violates the Religious Freedom Restoration Act (RFRA). As background, the 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). The USPSTF released a recommendation about HIV PrEP in June 2019, triggering a coverage requirement for plan years beginning on or after June 30, 2020 (see our Checkpoint article). This case was brought by a group of employers that argued that the preventive services mandate is unconstitutional as a whole and that forcing them to provide health plan coverage of PrEP violates their religious freedom by “making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”

After a technical and lengthy analysis of the makeup and authority of the USPSTF, HRSA, and ACIP, the court held that the members of USPSTF—but not HRSA or ACIP—were unconstitutionally appointed and thus do not have the authority to determine the preventive services that must be covered by private health plans. The court further held—as to one employer—that the PrEP coverage mandate violated the employer’s rights under the RFRA. The court concluded that the agencies failed to show a compelling government interest in requiring religious employers to provide coverage without cost-sharing or religious exemptions, especially since the ACA already exempts grandfathered health plans and employers with fewer than 50 employees. The court also determined that the agencies failed to show that the PrEP coverage mandate is the least restrictive means of satisfying the government’s interest in providing PrEP to reduce the spread of HIV.

EBIA Comment: The court declined to decide the appropriate remedies for the violations, seeking further information from both the employers and the agencies. Thus, the scope of the ruling—including whether the ruling will apply only to the employers involved in the lawsuit or whether there will be a nationwide impact—remains to be seen. Plan sponsors and their advisors should watch this case closely. A wholesale invalidation of the USPSTF’s recommendations could eliminate the requirement to cover a wide variety of preventive services without cost-sharing, including cancer-screening colonoscopies and mammograms. 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”).

Contributing Editors: EBIA Staff.