Inside Braidwood V. Becerra: What Is at Risk for Payers?

Required coverage for no-cost preventive services is at risk. As the DOJ responds, what would it take for the dominos to fall?

If preventive services are so clearly beneficial, why would an administrative technicality deter payers from covering them? Or patients from using them when faced with the slightest financial barrier?

These are key questions as a decision looms on Braidwood Management, Inc. et al. v. Xavier Becerra et al., which could end free, mandated coverage for select preventive care. This feature summarizes the latest case status — including details from the only amicus brief filed by a payer organization and the government’s appeal filed just last week. This is the first of three articles that will explore:

• What is at risk
• How three key factors — consumer behavior, care innovations, and payer market pressures — influence preventive services support when cost-sharing shifts
• The downstream impacts Braidwood could have on a U.S. healthcare policy framework that reform by half measures

Braidwood: The rulings so far

For more than a decade, the Affordable Care Act (ACA) has required private payers to cover preventive services at no cost.

Braidwood puts that at risk.

Last year, the U.S. District Court in the Northern District of Texas ruled that the requirement was  unconstitutional for select services. The ruling applies to all private plans—fully insured and self-insured n the individual and small- and large-group markets, except those that are “grandfathered” status — and to Medicaid expansion plans.

For now, these and other preventive services are safe. In 2023, the 5^th Circuit Court of Appeals issued a stay of the District Court's ruling, which also struck down required coverage of PrEP medications that help prevent HIV.

The services at stake

The ACA, what it promises, and what it has achieved has been likened to a machine: first, a “gazillion-dollar startup machine” and now a preventive coverage machine.

The Kaiser Family Foundation (KFF) reports that “evidence-based preventive services can save lives and improve health by identifying illnesses earlier, managing them more effectively, and treating them before they develop into more complicated, debilitating conditions, and that some services are also cost-effective.”

As Health Affairs states: “The stakes in this litigation could not be any higher . . . [T]he decision by the Fifth Circuit will affect life-saving preventive services that have been in place for over a decade, benefiting over 150 million Americans.” This now includes the record 16.3 million Americans who do not have employer-based, Medicare, or Medicaid coverage and now access no-cost preventive services via the Marketplace.

The Braidwood ruling only affects services "recommended or updated by the U.S. Preventive Services Task Force (USPSTF) on or after March 23, 2010." The USPSTF makes evidence-based recommendations across three categories:

• Evidence-based screenings and counseling
• Preventive services for women
• Preventive services for children and youth

Adult preventive services include cancer, chronic conditions, health promotion, reproductive health, and pregnancy. Child services also include health promotion and chronic conditions as well as infectious diseases, child development, adolescent sexual health, and immunizations recommended by the Advisory Committee on Immunization Practices.

Not all these services are impacted (e.g., free coverage for mammograms) but some very innovative ones associated with rising health risks are (e.g., colorectal cancer screening for younger adults, aged 45-49; more on this in Part 2).

Stakeholders support prevention—but not necessarily with their pocketbooks

Nearly 20 organizations have filed amicus briefs in favor of required, no-cost preventive care. This includes one payer organization, the BlueCross BlueShield Association (BCBSA).

Just be sure to read their briefs in their entirety.

Among providers, the American Medical Association and numerous physician organizations wrote in their brief that preventive services access is of "utmost importance to public health." BCBSA echoes this — noting that the District Court’s decision would be “detrimental to the public interest” and adding that “the Preventive Services Mandate has confirmed the truth in the old adage: an ounce of prevention is worth a pound of cure.”

But what is prevention’s worth when patients are hesitant to pay, and payers are no longer required to?

The amicus brief from the American Hospital Association and other hospital organizations states that “patients typically do not seek preventive care if there is even a modest financial barrier.”

Citing data that some employers “would impose cost-sharing” or “reduce coverage” without the Preventive Services Mandate, BCBS amicus brief adds: “[O]nce a significant segment of the marketplace [does this], it could create perverse competitive incentives for others to follow suit. Indeed, those health insurers and health plans that continue to offer coverage for preventive services without cost-sharing may pay a competitive price for doing so.”

So much for the “utmost importance” of services whose absence would be “detrimental to the public interest.” More on this in the upcoming Part 3 of this Braidwood series.

Key dates, the government’s response, and what’s next

As summer gives way to fall, key dates have marked the case:

• August 7 – Plaintiff Braidwood Management, Inc., et al. filed its appellate brief, requesting that additional no-cost preventive services be blocked
• September 29 – The government’s filed its response and reply brief
• November 3 – All briefings to be completed and Fifth Circuit review begins

The government’s response, filed just last week noted: “The district court erred in failing to consider the substantial harms to 150 million Americans when it issued a universal vacatur of all agency action to implement and enforce coverage of preventive items and services recommended by the Task Force with an “A” and “B” rating, adding that “Plaintiffs make no attempt to defend these universal remedies as equitable or fair to absent parties . . . which is contrary to precedent and bedrock principles of equity.”

Two dates are unknown: when the Fifth Circuit will rule and when the Supreme Court might take up the case, which is widely expected.

Another key date? Next week, when HealthLeaders publishes Part II of its Braidwood analysis, including the threat the case poses to innovation in a changing preventive services landscape.