The law’s provision applies broadly to all nongrandfathered health plans and policies offered by individual, small-group, and large-group insurers, as well as self-funded group health plans.
The ACA specifies four main categories of preventive care for all adults as well as for women and children in particular: 1) services with an A or B rating in the current recommendations of the U.S. Preventive Services Task Force (USPSTF); 2) immunizations recommended by the Advisory Committee on Immunization Practices (ACIP); 3) preventive care and screenings for infants, children, and adolescents in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA); and 4) preventive care and screenings for women’s health specified in the HRSA guidelines.
These recommendations include more than 100 key preventive services, such as:
- screening for breast cancer, lung cancer, cervical cancer, colorectal cancer, heart disease, hepatitis b and c virus, and hypertension
- tobacco-cessation services
- immunizations for polio, measles, mumps, rubella, pneumonia, chickenpox, shingles, and many other diseases
- FDA-approved contraception
- preeclampsia screening and folic acid for pregnant women
- breastfeeding information, services, and supports for pregnant women and new mothers
- universal newborn hearing screening and bilirubin concentration screening
- developmental and autism spectrum disorder screening for children.
Has the ACA’s preventive services requirement made a difference in Americans’ health care?
Yes. The requirement has significantly expanded access to preventive care and helped achieve one of the ACA’s principal goals — disease prevention and health improvement. More than 150 million people with private health coverage, including 58 million women and 37 million children, benefited from this provision in 2020 alone. An additional 20 million adults benefited from the same services through the ACA’s Medicaid eligibility expansion.
A recent federal report showed that the preventive services requirement has led to increases in cancer screening and vaccinations, improved access to contraceptives, and earlier detection and treatment of chronic health conditions (such as hypertension and diabetes). For instance, one early study of more than 60,000 insured adults found a significant increase in blood pressure checks, cholesterol checks, and flu vaccinations. And most high-value studies of this ACA provision found increases in the use of preventive care, with substantial increases for financially vulnerable individuals. The ACA also helped narrow racial disparities in access to preventive services.
What is being argued in Kelley v. Becerra?
The plaintiffs in Kelley argue that the ACA’s preventive services requirement is unconstitutional on multiple grounds. The plaintiffs, who are repeat players in ACA litigation, are represented by Jonathan Mitchell. The case is pending before Judge Reed O’Connor, a federal district court judge in Texas who has issued several ACA rulings and most recently held that the ACA in its entirety was invalid — a conclusion ultimately rejected by the Supreme Court in 2021.
In urging the court to declare that insurers and health plans are not required to provide free coverage of all preventive services, the plaintiffs make three primary arguments (described in greater detail in this blog post):
- The preventive services requirement violates the Appointments and Vesting Clauses of the U.S. Constitution. Article II of the Constitution vests the executive authority of the United States in the president but allows executive authority to be exercised by officers nominated by the president and confirmed by the Senate or by other “inferior officers,” as designated by law to be appointed by the president or heads of departments. The preventive services requirement violates this standard, the plaintiffs argue, because members of the USPSTF, ACIP, and HRSA have not been nominated by the president or confirmed by the Senate.
- The preventive services requirement violates the so-called “nondelegation doctrine,” because it delegates decision-making authority to the USPSTF, ACIP, and HRSA without providing an “intelligible principle” to guide the agencies’ discretion. Although the nondelegation doctrine has not been cited to invalidate a statute for almost a century, courts are using related arguments to invalidate health policies, including pandemic response measures and efforts to mitigate climate change.
- Coverage of certain preventive services, such as pre-exposure prophylaxis (PrEP) to prevent HIV infection, violates the Religious Freedom Restoration Act.
The preventive services requirement is being defended by the Department of Justice (under both the Trump and Biden administrations), joined by 21 state attorneys general, a group of health policy experts, the American Public Health Association, and the Association of American Medical Colleges. These stakeholders argue that the USPSTF, ACIP, and HRSA are each overseen by federal agencies whose heads have been nominated by the president and confirmed by the Senate, consistent with the Constitution. Moreover, Congress itself mandated the coverage of these services, by leveraging the well-established processes used by the USPSTF, ACIP, and HRSA as expert bodies. These processes and standards provide a more-than-sufficient “intelligible principle” to limit discretion and govern the services that must be covered.
What happens next?
Judge O’Connor has scheduled a hearing for July 26, 2022. His ruling will then be appealed to the U.S. Court of Appeals for the Fifth Circuit, and potentially to the Supreme Court, in what could be a multiyear process.
If Judge O’Connor agrees with the plaintiffs — a likelihood, given he already refused to dismiss their arguments earlier in the case — the preventive services requirement would be declared unconstitutional and thus voluntary for insurers and plans. Without this standardized requirement, coverage of preventive care would vary significantly among insurers and health plans. Some might opt to drop coverage of certain services altogether or to impose cost sharing on care. These changes would increase out-of-pocket costs for millions of Americans, leading to reduced access to preventive care, worsening long-term health outcomes, and deepening health disparities.
States and marketplaces could require fully insured plans to cover the same scope of preventive services without cost sharing. But federal law prevents states from imposing this requirement on self-funded employer plans. This means millions of people enrolled in job-based coverage would be left without access to affordable preventive services either at the end of the year or when they renew their health coverage.
