In this article
- What is the ACA’s preventive health services coverage mandate?
- What preventive health services are free under the ACA’s mandate?
- Has the ACA’s preventive health services provision been struck down?
- What preventive care coverage could be lost under Braidwood v. Becerra?
- Why did a judge overturn some ACA preventive care coverage requirements?
- Frequently asked questions about ACA’s preventive health services coverage mandate?
What is the ACA's preventive health services coverage mandate?
The Affordable Care Act (ACA) requires nearly all health plans to cover a wide range of free preventive care benefits (meaning the patient doesn’t have to pay any deductibles, copayments, or coinsurance).
What preventive health services are free under the ACA’s mandate?
Services have to fall into one of three categories in order to be under the umbrella of preventive care that non-grandfathered health insurance plans must provide at no cost to the consumer. (The cost of preventive care is wrapped into the premiums that we all pay each month.)
- Wide-ranging preventive care for everyone – services rated “A” or “B” in the current United States Preventive Services Task Force (USPSTF) recommendations. As detailed below, a federal judge ruled in 2023 that preventive care recommended by the USPSTF should no longer be included in the preventive care that health plans have to cover without patient cost-sharing, but a temporary stay was issued and the ruling was put on hold while the case was appealed.1 In June 2024, the appeals court ruled that the plaintiffs could offer coverage that didn’t include zero-cost preventive care, but declined to allow this to apply to plans other than those implicated by this lawsuit.2 (The plaintiffs include some individuals but also two Texas-based businesses: Braidwood Management, which self-insures health coverage for about 70 employees, and Kelley Orthodontics, both of whom object on religious grounds to certain aspects of the preventive coverage mandate.)3 So for the time being, USPSTF-recommended care will continue to be covered on most health plans, but this could be subject to future litigation4)
- Preventive care for women and children – recommended in the guidelines from the Health Resources and Services Administration (HRSA), including the Bright Futures recommendations for children (infancy through age 21) and the Women’s Preventive Services Guidelines. This care includes no-cost female contraception coverage, which has been challenged in court and subject to evolving rules under different presidential administrations. In an effort to ensure improved access to zero-cost female contraception, the Biden-Harris administration proposed new rules in 2023 that would walk back some changes made under the Trump administration, but the rules have not yet been finalized as of June 2024. The Centers for Medicare & Medicaid Services (CMS) also published FAQs in 2022 and 2024, addressing a variety of specific details in terms of what health plans are required to provide in terms of contraceptive coverage.
- Vaccines for children and adults – recommended by the Centers for Disease Control & Prevention’s Advisory Committee on Immunization Practices (ACIP). Numerous immunizations are recommended, including those for influenza, meningitis, tetanus, pertussis, mumps, measles, rubella, varicella, HPV, hepatitis A and B, and COVID-19. Some vaccine recommendations are age-specific, such as the recommendation that people get vaccinated against shingles once they’re at least 50 years old.5
KFF’s preventive services tracker includes a note for each service, clarifying which body recommends it. That’s important in terms of the lawsuit over covered preventive care, which the author will discuss in a moment.
Has the ACA's preventive health services provision been struck down?
In March 2023, a federal trial court overturned some aspects of ACA’s preventive services coverage requirement, in Braidwood v. Becerra. However, the Department of Justice appealed the ruling6 to the 5th Circuit Court of Appeals in New Orleans, and asked the court for a temporary stay.7
In June 2024, the appeals court issued a “mixed bag” ruling.2 The ruling allows the plaintiffs in the case to no longer provide coverage that includes zero-cost preventive care recommended by the USPSTF. But it overturned the district court’s ruling that had extended that provision to all health plans.
So with the exception of those covered by the Braidwood decision, non-grandfathered health plans must continue to cover USPSTF-recommended preventive care with no cost-sharing. However, other plaintiffs could bring similar legal challenges in the future. And the appeals court has also sent the case back to the lower court for further review of the coverage requirements under HRSA and ACIP recommendations.8
So for the time being, preventive care benefits will remain unchanged for most people with ACA-compliant health insurance. And carriers are well into the process of filing their rates and plans for 2025 individual and small-group health plans (deadlines for that vary by state, but range from May to August 2024).9 These filings are based on the requirements of the ACA currently in place, including the preventive coverage mandate. The Braidwood case is likely to result in additional litigation, however, and could eventually make its way to the Supreme Court. So it’s possible that the rules could apply differently in the future.
In a statement issued soon after the June 2024 ruling, United States of Care, a nonpartisan organization that works to ensure access to quality, affordable health care, noted that while they had hoped for “a complete reversal of the District Court’s ruling, this decision is a sigh of relief for the 151 million people – including 37 million children – whose access to free preventive services has been hanging in the balance for over a year. By overturning part of the District Court’s ruling, this decision protects access to free preventive services like colorectal cancer screenings, PrEP for HIV prevention, and mental health screenings for now.”10
But they also noted that “while people’s access to these free preventive services is preserved for the time being, continued access is still at risk.” This is because the issue of coverage requirements for HRSA and ACIP recommendations has been sent back to the district court for further consideration, and because, as noted by Families USA, the ruling regarding USPSTF recommendations “paves the way for future lawsuits that jeopardize access to lifesaving preventive services.”11
What preventive care coverage could be lost under Braidwood v. Becerra?
The lower court’s ruling in Braidwood v. Becerra overturned some aspects of the ACA’s preventive care coverage rules, but left others intact. The appeals court’s ruling limited the scope of the lower court’s decision, but left the door open for future litigation and also remanded some questions back to the lower court for further consideration. The case is expected to reach the Supreme Court, so the eventual outcome is still uncertain.
But here’s an overview of what’s happened thus far:
- The lower court’s ruling did not affect HRSA (Health Resources and Services Administration) recommendations regarding preventive care for children and women, including contraception, nor ACIP (Advisory Committee on Immunization Practices) recommendations regarding vaccines for children and adults. In that case the lower court rejected the plaintiffs’ arguments against having to cover preventive care recommended by ACIP and HRSA. However, the appeals court has remanded this issue back to the district court to determine whether the Health and Human Services (HHS) Secretary has properly ratified ACIP’s and HRSA’s preventive care recommendations. So although no changes have been made to health coverage requirements for services recommended by ACIP and HRSA, this issue remains unresolved for now.2, 8
- The lower court’s ruling said that health plans no longer had to cover USPSTF (U.S. Preventive Services Task Force) recommendations made since March 23, 2010, when the ACA was enacted. The ruling did not allow health plans to stop covering preventive services that were already recommended by USPSTF prior to March 23, 2010.6 But most USPSTF recommendations have been updated since 2010. So if the ruling had been upheld, health plans could have reverted to the recommendations that existed in 2010. The appeals court ruled that the elimination of the coverage requirement for USPSTF-recommended services would only be applicable to the plaintiffs and would not apply to other entities. But this does leave the door open for future litigation from other plaintiffs.2, 8
- The lower court’s ruling specifically overturned the requirement that PrEP HIV prevention drugs be covered by the plaintiffs’ health plans. But PrEP is currently covered by health plans because it has an “A” rating from USPSTF, issued in 2019. So that coverage requirement would have ended for all health plans if the lower court’s ruling had been upheld. But since the appeals court ruled that only the plaintiffs could stop covering USPSTF-recommended preventive services, other non-grandfathered health plans will continue to cover PrEP under the ACA’s preventive services mandate.12 As noted above, however, additional litigation could be brought by other plaintiffs, and the Braidwood case is expected to eventually make its way to the Supreme Court, so this issue is not yet settled.
Why did a court overturn some ACA preventive care coverage requirements?
In the 2023 ruling, the U.S. District Court in the Northern District of Texas ruled that requiring health plans to cover services recommended by the USPSTF violates the Appointments Clause of the U.S. Constitution, because members of the USPSTF have not been nominated by the president or confirmed by the Senate. (This is by design. Congress intended this body to be comprised of experts who are free from political interference. On each USPSTF recommendation page, they clarify that “Recommendations made by the USPSTF are independent of the U.S. government. They should not be construed as an official position of the Agency for Healthcare Research and Quality or the U.S. Department of Health and Human Services.”13) Had that ruling been allowed to stand, health plans would no longer have been required to cover USPSTF-recommended preventive care with no cost-sharing.
The court also ruled that requiring health plans to cover PrEP (for prevention of HIV transmission) is a violation of the plaintiffs’ religious freedom under the Religious Freedom Restoration Act, meaning that plans would no longer have had to cover it. But the appeals court’s ruling limited that to only the coverage offered by the Braidwood plaintiffs, as opposed to all plans.14 (As noted above, PrEP has an “A” rating from the USPSTF that was issued in 2019, so if recent USPSTF recommendations were to be eliminated from health plan coverage requirements, that would effectively remove the requirement to cover PrEP.)
The appeals court upheld the lower court’s ruling against coverage requirements for USPSTF- recommended services, but only for the Braidwood plaintiffs. For now, other health plans must continue to cover those services without cost-sharing.2
The district court did not rule against ACIP and HRSA having the authority to recommend preventive care requirements for health plans. So under that ruling, some currently covered preventive services (those recommended by USPSTF) would have become optional for health plans to cover with zero cost-sharing, while others (those recommended by HRSA and ACIP) would not. However, the appeals court has remanded the question of ACIP and HRSA recommendations back to the district court for further consideration of whether the HHS Secretary has properly ratified the recommendations made by ACIP and HRSA.
Frequently asked questions about ACA’s preventive health services coverage mandate
Do the court rulings affect no-cost coverage of cancer screenings?
As noted above, an appeals court has limited the district court’s ruling that initially called for health plans to no longer have to cover USPSTF-recommended preventive care guidelines issued since the ACA was enacted. Other than the plaintiffs, health plans must still continue to cover those services for now. Even if the case were to be taken up by the Supreme Court and the Court were to eventually uphold the district court’s ruling, health plans would continue to have to cover some cancer screenings at no cost to their enrollees:
- Screening mammograms for breast cancer are recommended by HRSA, so that coverage would continue to be required. (As noted above, the appeals court has asked the district court to consider whether HRSA recommendations have been properly ratified by the Secretary of HHS, so this issue is not entirely settled.)
- HRSA also recommends pap smears with HPV tests for women age 30 and older, so that coverage wouldn’t change. But USPSTF has issued updated pap smear guidelines for younger women, which could be affected by a future ruling in this case or by additional litigation brought by new plaintiffs regarding USPSTF recommendations.
- Colonoscopy screening was already recommended by USPSTF prior to March 2010, so it would still have to be covered. But the guidelines were updated in 2021 to include people as young as age 45. Screening recommendations previously started at age 50, and could revert to that guideline if the lower court’s ruling is ultimately upheld by the Supreme Court (assuming the case is taken up by the Supreme Court).
- Lung cancer screening for current and former smokers was added to the USPSTF list of recommendations in 2013, so it’s an example of a screening test that health plans would no longer have to cover if the district court’s ruling is ultimately upheld, since it was added after the ACA was signed into law.
Did the court ruling affect no-cost coverage of contraception?
Contraceptive coverage was not affected by the 2023 or 2024 court rulings, although as noted above, the issue of HRSA recommendations has been remanded to the district court for further consideration.
There have been other challenges to the contraceptive mandate over the years, and the Trump administration made it easier for health plan sponsors to get an exemption from the coverage requirement if they have religious or moral objections to contraception. But the Biden-Harris administration proposed new rules in 2023 that would roll back some of those changes and ensure that women could still have access to zero-cost contraception even if their employer or school has a religious exemption. Those rules had not yet been finalized as of mid-2024.
One note about free contraception: Although non-grandfathered health plans are required to cover all types of FDA-approved female-specific contraception, they’re only required to offer one version of each type with no cost-sharing. They can impose cost-sharing for other versions. So it’s not true that all contraception is covered for free. Rather, at least one version of each type of contraception is covered for free. But CMS issued guidance in 2024 to clarify that health plans must have exception protocols in place to allow women to access, without cost-sharing, specific contraception that’s considered medically necessary for the individual. The guidance noted that the exceptions process cannot “impose unduly burdensome administrative requirements.”15
Do health plans still have to cover vaccines at no cost?
Yes. Vaccine coverage is not affected by the 2023 or 2024 court rulings. Under current rules, non-grandfathered health plans have to fully cover the cost of vaccines recommended by ACIP. But as noted above, the issue of coverage requirements based on ACIP recommendations has been remanded to the trial court for further consideration.
Is weight loss treatment covered as a preventive care benefit?
The federally mandated preventive care rules require health plans to cover obesity screening and counseling and diet counseling for people at high risk of chronic disease.16 But federal rules do not require any coverage of other weight loss treatments.
For health plans offered in the individual/family and small group markets, states set their own Essential Health Benefits benchmark plans to define what essential health benefits must be covered by plans issued in the state. Almost half of the states have bariatric surgery in their benchmark plans, but anti-obesity medications are very rarely included. In part, this is because most states’ current benchmark plans date back to 2013, before these medications became available.
Fully insured large group plans are not subject to the ACA’s essential health benefit rules, although states can impose coverage mandates for these plans. Self-insured plans, which cover the majority of people with employer-sponsored coverage,17 are not subject to state rules. They are, however, subject to various federal rules, including ERISA, HIPAA, COBRA, some ACA provisions.
So in most states, the current rules mostly leave it up to insurers and employers in terms of whether they want to cover weight loss drugs. As time goes by, we might see changes to coverage requirements pertaining to weight loss treatment. This could come via updates to federal preventive care guidelines, or changes at the state level via updated benchmark plans and state mandates.
Could the Braidwood case mean that all health plans have to stop covering preventive care at no cost?
No. Even if the Supreme Court were to eventually overturn the ACA’s preventive coverage requirement, health plans would still have the option to cover members’ preventive care without requiring members to share the cost. The ACA’s preventive coverage mandate is among the law’s most popular features, and the benefits are used by about 150 million Americans each year.10 Employers use their benefits package as a tool to attract and retain employees, and free preventive care tends to be relatively inexpensive to provide.18
The Association for Community Affiliate Plans, which represents 79 health plans covering 25 million people, criticized the 2023 ruling and urged the Justice Department to appeal it. And in a statement clarifying that benefits would not change immediately and that the case would be appealed, AHIP – which represents health plans – noted that “every American deserves access to high-quality affordable coverage and health care, including affordable access to preventive care and services that help avoid illnesses and other health problems.”
Can states require health plans to continue to cover preventive care at no cost?
For health plans that are regulated at the state level (meaning plans that aren’t self-insured), states could require health plans to continue to cover USPSTF-recommended care with no cost-sharing, even if that requirement were to be eliminated at the federal level. States could ensure this is part of their benchmark plan, which would apply to individual and small group plans, or could impose legislation that applies to all state-regulated plans, including large group plans.
Several states have already taken action on this, and others could follow suit. But states do not regulate self-insured health plans, which cover the majority of people who have employer-sponsored health coverage in the U.S.17
Why do some mammograms and colonoscopies have out-of-pocket costs?
Mammograms and colonoscopies are examples of procedures that can be classified as “screening” or “diagnostic” procedures, depending on the circumstances. This matters a lot in terms of health coverage, because health plans are only required to cover the full cost if it’s a screening procedure. If it’s diagnostic, your plan’s regular cost-sharing can apply.
For a mammogram or colonoscopy to be considered a screening procedure, it has to be done on the timelines recommended by USPSTF or HRSA, and in the absence of any symptoms.
- Timing: For mammograms, that means no more than once per year starting at age 40. For colonoscopies, it means no more than once every ten years, starting at age 45. So if you have a screening colonoscopy and a polyp is found and your doctor tells you to come back in three or five years, that second colonoscopy is going to be considered diagnostic (which means there will be out-of-pocket costs), since it will have been less than ten years since your last one.
- Absence of symptoms: The procedure has to be performed simply because it’s time to do so, and not due to anything you or your doctor have noticed. So if you’ve had blood in your stool or have found a lump in your breast, a colonoscopy or mammogram to check things out will be considered diagnostic and there will be out-of-pocket costs. This is true even if you would otherwise qualify for a screening test due to your age. For example, if you’re due for your annual mammogram and your doctor finds a lump during your annual exam and then sends you to get your mammogram, it will be considered diagnostic due to the presence of the lump.
One note about colonoscopies: CMS has confirmed that health plans are not allowed to impose out-of-pocket costs for polyp removal performed during a regular screening colonoscopy (see Q5 in these FAQs), and the plan must also pay for pathology testing for the polyps. So if you go in for a screening colonoscopy and polyps are found, removed, and tested, the health plan still has to cover the procedure with no out-of-pocket costs. But your doctor will likely then have you return for another colonoscopy in three or five years, and you should expect to have out-of-pocket costs for that follow-up procedure, since it’s being done more frequently than the regular screening schedule.
(Note that the coverage rule is different for Original Medicare, which does impose cost-sharing if a polyp is found and removed during a screening colonoscopy.19)
Does health insurance cover preventive care as soon as experts recommend it?
In normal circumstances, there’s a delay that can last nearly two years before recommendations from USPSTF, HRSA, or ACIP are built into health insurance plans. But for COVID-19 vaccines, that was shortened to just 15 business days. ACIP finalized their recommendation for the COVID-19 vaccine in mid-December 2020, so all non-grandfathered health plans had to cover COVID-19 vaccines with zero-cost sharing as of early January 2021 (which was well before the vaccines were available for most people).
Preventive care recommendations have evolved considerably over time, and the recommendations have been gradually incorporated into health coverage as they were updated. For example, in 2021, USPSTF lowered the recommended age to begin screening colonoscopies from 50 to 45, and health plans had until 2023 to implement that change (many of them did so well before that).
Louise Norris is an individual health insurance broker who has been writing about health insurance and health reform since 2006. She has written dozens of opinions and educational pieces about the Affordable Care Act for healthinsurance.org.
Footnotes
- “Joint Stipulation and Proposed Order; Braidwood v. Becerra” U.S. Court of Appeals, 5th Circuit. June 12, 2023 ⤶
- “Braidwood v. Becerra” United States Court of Appeals for the Fifth Circuit. June 21, 2024 ⤶ ⤶ ⤶ ⤶ ⤶
- “Explaining Litigation Challenging the ACA’s Preventive Services Requirements: Braidwood Management Inc. v. Becerra” KFF.org. May 15, 2023 ⤶
- “Appeals court rules preventive care task force unconstitutional” Roll Call. June 21, 2024 ⤶
- “ACIP Vaccine Recommendations and Guidelines” CDC; Advisory Committee on Immunization Practices (ACIP). Accessed June 23, 2024 ⤶
- “Braidwood Management, Inc. et al, Plaintiffs, v. Xavier Becerra, et al., Defendants” United States District Court. March 31, 2023 ⤶ ⤶
- “52 Patient Groups Applaud Justice Department’s Stay Request in Braidwood Lawsuit” panfoundation.org. April 13, 2023] That was granted in May 2023, in a move that was applauded by numerous patient advocacy groups.
The following month, an agreement was reached that put the trial court’s ruling on hold throughout the appeals process, meaning that preventive services would continue to be covered while the case was appealed.[efn_note]“Joint Stipulation and Proposed Order; Braidwood v. Becerra” U.S. Court of Appeals, 5th Circuit. June 12, 2023 ⤶
- “Overview of Braidwood v. Becerra ruling” Nicholas Bagley, Law Professor at Michigan Law School. June 21, 2024 ⤶ ⤶ ⤶
- “State Plan Management Systems and Submission Deadlines for Plan Year 2025” SERFF.com. Accessed June 23, 2024 ⤶
- “United States of Care Issues Statement in Response to Ruling in Braidwood v. Becerra” United States of Care. June 21, 2024 ⤶ ⤶
- “Braidwood Decision Preserves Access To Free Preventive Services For Millions Of Americans, But Future Threats Loom” Families USA. June 21, 2024 ⤶
- “Appeals court finds ‘Obamacare’ pillar unconstitutional in suit over HIV-prevention drug” NBC News. June 21, 2024 ⤶
- “US Preventive Services Task Force” Accessed June 23, 2024 ⤶
- “Lambda Legal “Relieved” by Braidwood v. Becerra Decision on Preventative Care” Lambda Legal. June 21, 2024 ⤶
- “FAQs About Affordable Care Act Implementation Part 64” CMS.gov. Jan. 22, 2024 ⤶
- “Preventive care benefits for adults” HealthCare.gov. Accessed June 23, 2024 ⤶
- “Employer Health Benefits, 2023 Annual Survey” KFF. Oct. 18, 2023. ⤶ ⤶
- “The Impact of Covering Select Preventive Services on Employer Health Care Spending” Employee Benefit Research Institute. Oct. 20, 2022 ⤶
- “Colonoscopies” Medicare.gov. Accessed June 23, 2024 ⤶
