The ACA’s Preventive Services Benefit Is in Jeopardy: What Can States Do to Preserve Access?

The Affordable Care Act (ACA) requires nearly all private health plans to cover many critical preventive services without cost sharing. Though this protection is broadly popular and its benefits have been widely felt, its future is in jeopardy. In September, a federal judge in Texas ruled that much of the ACA’s preventive services requirement is unconstitutional.

This same judge has ruled against the ACA and been reversed before, and there are strong arguments for why this challenge, too, should be dismissed. But there’s also reason to believe this time may be different: the Supreme Court may be amenable to striking down the entirety of the preventive services protection.

While states interested in preserving access to preventive services without cost sharing don’t have the tools to protect all their residents — they are barred by federal ERISA law from regulating the self-insured employer plans through which most covered workers get their health benefits — they aren’t powerless.¹ Nationwide, tens of millions of people get coverage in the individual market or via a fully insured group plan, and states have full authority to regulate on behalf of the consumers in these products to ensure their preventive services benefits don’t disappear.

What’s at Stake?

Section 2713 of the ACA requires ERISA-regulated group health plans and insurers that offer individual or group health insurance to cover a range of preventive services without cost sharing. Importantly, the provision does not set in stone the specific services that must be covered. Instead, it identifies three bodies with relevant clinical and public health expertise and requires plans to cover certain services currently recommended by these expert entities:

• items and services receiving an “A” or “B” rating from the U.S. Preventive Services Task Force (USPSTF)
• immunizations recommended by the Advisory Committee on Immunization Practices (ACIP)
• for women and children, preventive care and screenings included in guidelines supported by the Health Resources and Services Administration (HRSA).

This framework ensures zero cost-sharing coverage of dozens of high-value services, from cancer screenings to pre- and postnatal care.

The Texas court held that the requirement to cover services recommended by the USPSTF is unconstitutional. While the judge upheld the requirements to cover ACIP- and HRSA-recommended services based on case law binding on his court, he signaled that higher courts not encumbered by precedent could rule against these provisions, too.

What Can States Do?

The Texas lawsuit is about federal power under the U.S. Constitution. It doesn’t cast doubt on the authority of the states to enact requirements just like the ACA’s, and some states already have. By our count, at least 15 states have broad, ACA-style laws requiring individual market insurers to cover, without cost sharing, the same categories of preventive services required by the ACA.² These state provisions ensure continued access to preventive services for individual market consumers if the federal preventive services requirement is nullified. Some of these states also have extended these protections to workers in the fully insured group market.³

Other states are currently less well-positioned. Though all states have enacted at least some benefit mandates over the years, some of which require insurers to cover specific preventive services, state rules are generally patchwork and omit many services required by the ACA. Critically, they also don’t usually require that benefits be provided free of cost sharing. While states may wish to pursue multiple strategies to close these gaps, in the absence of additional legislation, individual (and group) market consumers in these states are at risk of losing access to critical services.

Looking Forward

Though the litigation is ongoing, it’s not clear how long states have to prepare for the repercussions of a successful challenge to the preventive services benefit. Recently, plaintiffs in the case formally asked the Texas court to block the requirement to cover USPSTF-recommended services, and to do so on a nationwide basis. Were the judge to grant this request — a decision is expected in the new year — the federal government surely would seek to have his order put on hold while the case is on appeal. While the courts might be disposed to preserve the status quo and keep the protection in place at least temporarily, it’s not a given.

Uncertainty over the legal issues is likely to persist until the Supreme Court weighs in. However, a final ruling invalidating the preventive services benefit, either entirely or partially, would trigger fresh confusion and hardship for the millions of consumers who have come to rely on the protection. States can’t shield all their residents from such an outcome — but by acting promptly to codify access to preventive services without cost sharing in their fully insured markets, they can make a difference for many.