A new chapter begins
ACA preventive services mandate gets its day at the Supreme Court
It’s been two years since a Texas court put into question the ACA’s requirement that health plans cover preventive services in-network without cost-sharing. The US Supreme Court is set to hear oral arguments in Kennedy v. Braidwood Mgmt. Inc. on April 21.
The Court’s decision will determine whether evidence-based preventive items or services with an “A” or “B” rating recommended by the US Preventive Services Task Force on or after March 23, 2010, including the requirement to cover pre-exposure prophylaxis (PrEP) HIV-prevention medications, must be covered by nongrandfathered group health plans without in-network participant cost-sharing. Both courts below (the federal district court and the court of appeals) found that members of the USPSTF were not properly appointed and thus requiring plans to cover their recommendations is unconstitutional. The Court is not reviewing the other ACA-mandated preventive services including:
- Advisory Committee on Immunization Practices recommendations for immunizations for routine use for children, adolescents, or adults,
- Health Resources & Services Administration recommendations and guidelines for infants, pediatric and adolescent evidenced-based preventive care and screenings, and
- HRSA guidelines for preventive care and screenings for women, including FDA-approved contraceptives.
A decision is expected in June.
What are employers saying?
In our recent Survey on Health Policy 2025, with more than 500 organizations responding, we asked employers about their most likely response if they are no longer required to provide ACA-mandate preventive services with no cost-sharing. Nearly half (45%) said they would likely make no changes to their current no cost-sharing coverage, and 28% thought they would be likely to add cost sharing for just some services. However, 11% would be likely to add it for many or even most services, and 15% weren’t sure.
With respect to PrEP, very few respondents – just 2% – said they would not continue to cover it at some level. Over one-fourth (28%) would most likely continue to cover all forms of PrEP, including long-acting injectables, without participant cost-sharing, and an additional 19% would still cover generic PrEP without cost-sharing.
What if the court upholds the lower court ruling?
If the Supreme Court upholds the lower court ruling, it will effectively remove the requirement – while leaving the option – for group health plans and insurers to provide coverage without cost sharing for the preventive items and services USPSTF recommended after March 23, 2010. Regardless of the outcome of this litigation, nongrandfathered group health plans will still be required to cover at no cost vaccines recommended by ACIP, pediatric and women’s preventive care recommended by HRSA, and USPSTF preventive items and services recommended before March 23, 2010, since those are effectively part of the ACA.
However, many of the preventive services that would be affected if the ruling is upheld – which includes new and updated recommendations issued since 2010 – are considered best practice by most healthcare providers. For example:
Statin use for the primary prevention of cardiovascular disease in adults. The USPSTF first recommended statin use for adults beginning at age 40 for the primary prevention of cardiovascular disease in November 2016.
Colorectal cancer screening beginning at age 45. The recommendation in effect on March 23, 2010, was screening for colorectal cancer beginning at age 50 years; however, the current recommendation is screening beginning at age 45.
A reset to the March 2010 USPSTF recommendations would mean plans could impose costs for, or deny coverage of, statins for the prevention of cardiovascular disease and colorectal cancer screening for members younger than 50. This article provides some additional examples.
Plans could, however, choose to continue no-cost coverage of the A and B preventive services recommended by the USPSTF after March 2010 and unless current guidance is changed – namely IRS Notice 2023-37 and ACA and CARES Act implementation FAQs part 59 – the coverage would be treated as preventive care for HSA/HDHP purposes.
Considerations for employers
If the Supreme Court’s decision results in employers having the option of denying coverage for, or imposing cost sharing on, some of the preventive services mandated under the ACA today, here are a few things employers may want to consider. Preventive care demand is elastic and added cost sharing could create barriers to care for some individuals. To the extent that added cost sharing dampens the utilization of preventive services, what are the implications from a clinical perspective? In many instances, the long-term health impacts may be greater than any short-term financial savings. A reset back to the 2010 recommendations would give employers the option to impose cost sharing on new (e.g., statins) and modified (e.g., colorectal cancer screening) USPSTF recommendations, but doing so could be difficult to justify from either a cost or clinical perspective.
If the Court overturns the lower court and upholds the USPSTF authority to make these recommendations, ACA-mandated preventive service coverage requirements remain status quo, for now. Still to be resolved at the district court is a challenge to the recommendations made by HRSA and ACIP, which could reach the Supreme Court in the future.
As a final note, even assuming the Court upholds the USPSTF authority to recommend required preventive service coverages, it is possible that leadership changes and organizational restructuring occurring at the Department of Health and Human Services may influence future USPSTF, HRSA and ACIP preventive services recommendations. Under this scenario, employers will need to work closely with their health plan partners to ensure employees and their families can continue to access the preventive care that has been demonstrated to improve health outcomes and long-term medical costs.
For now, we’ll be watching the oral arguments and waiting for the Court’s decision.
