Federal judge says insurers no longer have to provide some preventive care services, including cancer and heart screenings, at no cost

By Tami Luhby and Tierney Sneed, CNN

A federal judge in Texas said Thursday that some Affordable Care Act mandates cannot be enforced nationwide, including those that require insurers to cover a wide array of preventive care services at no cost to the patient, including some cancer, heart and STD screenings, and tobacco programs.

In the new ruling, US District Judge Reed O’Connor struck down the recommendations that have been issued by the US Preventive Services Task Force, which is tasked with determining some of the preventive care treatments that Obamacare requires to be covered.

The decision applies to task force recommendations issued on or after March 23, 2010 — the day the Affordable Care Act was signed into law. While the group had recommended various preventive services prior to that date, nearly all have since been updated or expanded.

O’Connor’s ruling comes after the judge had already said that the task force’s recommendations violated the Constitution’s Appointments Clause. The judge also deemed unlawful the ACA requirement that insurers and employers offer plans that cover HIV-prevention measures such as PrEP for free.

Other preventive care mandates under the ACA remain in effect.

The full extent of the ruling’s impact and when its effects could be felt are unclear.

The Justice Department filed a notice of appeal on Friday. The Biden administration is also appealing O’Connor’s earlier ruling that the task force’s recommendations violated the Constitution’s Appointments Clause and that requiring HIV-prevention drugs to be covered at no cost violated the Religious Freedom Restoration Act.

The challengers in the case — individuals and employers in Texas — lost on several of their other claims against the preventive care mandates. It’s possible they file their own appeal of O’Connor’s rulings.

The Justice Department has not filed a request that O’Connor’s rulings be paused for the appeal. It is not clear if the administration plans to ask for that pause.

“We will do everything we can to protect and defend Americans’ rights to the health care they need and deserve,” said Kamara Jones, a Department of Health and Human Services spokeswoman.

White House spokesperson Karine Jean-Pierre called the case “yet another attack on the Affordable Care Act.”

The decision, in a case brought by employers and individuals in Texas, represents the latest legal affront to the landmark 2010 health care law. It is unclear what immediate practical effect O’Connor’s new ruling will have for those with job-based and Affordable Care Act policies because insurance companies will likely continue no-cost coverage for the remainder of the contracts even though the Obamacare requirements in question have been blocked. Contracts often last one calendar year.

O’Connor’s Thursday ruling is expected to kick off a new phase of the legal battle over Obamacare’s preventive care measures. The judge rejected other claims that the ACA’s foes brought against the law — including challenges to the entities that determine no-cost coverage mandates for vaccines, an assortment of women’s health preventive care treatments, and services for infants and children. It’s possible that the plaintiffs appeal those aspects of O’Connor’s handling of the case, which could put at risk coverage requirements for additional preventive services at no cost.

A lawyer for the challengers did not respond to CNN’s inquiry about Thursday’s decision.

O’Connor is a George W. Bush-appointee who sits in the Northern District of Texas and who has issued anti-Obamacare rulings in major challenges to the law in the past. An appeal of the current case would head to the 5th US Circuit Court of Appeals, perhaps the most conservative federal appeals court in the country.

While the case does not pose the existential threat to the Affordable Care Act that previous legal challenges did, legal experts say that O’Connor’s ruling nonetheless puts in jeopardy the access some Americans will have to a whole host of preventive treatments.

“We lose a huge chunk of preventive services because health plans can now impose costs,” said Andrew Twinamatsiko, associate director of the O’Neill Institute for National and Global Health Law at Georgetown University. “People who are sensitive to cost will go without, mostly poor people and marginalized communities.”

Wide-ranging impact

Thursday’s ruling, if left standing, could have significant consequences for Americans nationwide by limiting access to key preventive services aimed at early detection of diseases, including lung and colorectal cancer, depression and hypertension.

Some of the US Preventive Services Task Force’s recommendations — including lung and skin cancer screenings, the use of statins to prevent cardiovascular disease and the offer of PrEP for those at high risk of HIV — were issued after the ACA’s enactment.

Certain older recommendations have been updated with new provisions, such as screening adults ages 45 to 49 for colorectal cancer.

“It would effectively lock in place coverage of evidence-based prevention with no cost sharing from 13 years ago,” said Larry Levitt, executive vice president for health policy at the Kaiser Family Foundation.

Some of the cost-sharing for these preventive services can be substantial. PrEP, for instance, can cost up to $20,000 a year, plus lab and provider charges, according to Kaiser.

In an earlier ruling, the judge upheld certain free preventive services for children, such as autism and vision screenings and well-baby visits, and for women, such as mammograms, well-woman visits and breastfeeding support programs.

O’Connor also upheld the mandate that provides immunizations at no charge for the flu, hepatitis, measles, shingles and chickenpox.

These services are recommended by the Health Resources and Services Administration and the Advisory Committee on Immunization Practices.

Insurers will have to continue to cover preventive and wellness services since they are one of the Affordable Care Act’s required essential health benefits. But under O’Connor’s ruling, they could require patients to pick up part of the tab.

Insurers’ trade associations stressed there would be no immediate disruption to coverage.

“It is vitally important for patients to know that their care and coverage will not change because of today’s court decision,” said David Merritt, senior vice president of policy and advocacy for the Blue Cross Blue Shield Association. “Blue Cross and Blue Shield companies strongly encourage their members to continue to access these services to promote their continued well-being. We will continue to monitor further developments in the courts.”

More than 150 million people with private insurance can receive preventive services without cost-sharing under the Affordable Care Act, according to a 2022 report published by HHS.

Overall, about 60% of the 173 million people enrolled in private health coverage used at least one of the ACA’s no-cost preventive services in 2018 prior to the Covid-19 pandemic, according to a recent Kaiser analysis. These include some services that will continue to be available at no charge under the judge’s ruling.

The most commonly received preventive care includes vaccinations, not including Covid-19 vaccines, well-woman and well-child visits, and screenings for heart disease, cervical cancer, diabetes and breast cancer, according to Kaiser. The most commonly used preventive services will continue to be covered at no cost.

Studies have shown the Obamacare mandate prompted an uptake in preventive services and narrowed care disparities in communities of color.

“There’s plenty of evidence that people responded to this incentive and started using preventive care more often,” said Paul Shafer, assistant professor of health policy at Boston University.

This story has been updated with additional details.

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