The fate of the Affordable Care Act (ACA) once again rests in the hands of a Texas judge. More than four years after Judge Reed O’Connor ruled that the entire ACA was unconstitutional — a decision the Supreme Court ultimately overturned — the Fort Worth-based federal judge could now strike down a list of dozens of preventive services that are required to be free for patients, disrupting the health coverage of millions of people.
In September, O’Connor ruled that it is unconstitutional to require insurers to cover preventative services, with no cost-sharing for patients, that are recommended by an independent adviser. The judge did not issue a remedy at the time of the ruling, however, and still has yet to release one. Requiring people to pay out of pocket for preventive services — even if the cost is relatively low — can stop them from seeking care altogether, experts said, possibly leading to more complex and costly health conditions. Morning Consult data appears to back experts’ concerns, with a large portion of the public indicating it would forgo these services if they come at a cost.
At least 2 in 5 U.S. adults said they are not willing to pay for 11 of the 12 preventive services currently covered by the ACA, according to a new Morning Consult survey. Furthermore, at least half said they would not pay out of pocket for preventive services such as tobacco cessation or screenings for HIV, depression and unhealthy drug use. Among all U.S adults, 46% said they would pay for cancer screenings out of pocket, the most of any of the services, while 38% said they would not pay and 15% weren’t sure what they would do when it comes to what can be life-saving care.
“It really is the uncertainty about what the cost could be that might make a person postpone or altogether not seek preventive care,” said Kristin Wikelius, chief program officer for the United States of Care and a former Centers for Medicare and Medicaid Services official. “It’s important for us all to remember that even a small cost could be enough to keep somebody from going to get a service.”
The ACA requires most insurance plans to offer certain preventive services at no cost. Three groups recommend services: the Health Resources and Services Administration, the Advisory Committee on Immunization Practices and the U.S. Preventive Services Task Force.
Braidwood Management Inc. and six individual plaintiffs brought a lawsuit against the U.S. federal government, challenging the requirement for plans to cover preventive services. O’Connor partially sided with the plaintiffs in his September opinion, ruling that the no-cost preventive services recommended by the USPSTF are unconstitutional, but did not extend that ruling to services recommended by HRSA or ACIP.
The judge wrote that the task force is unconstitutional because its members, which he considers “principal officers,” are not selected by the president and appointed by the Senate, a requirement of the Constitution’s Appointments Clause. He also noted that while the Health and Human Services secretary can ratify the recommendations of HRSA and ACIP, the secretary cannot ratify recommendations from USPSTF. The decision, which counters the government’s suggested remedy, leaves the future of the services in question.
Andrew Twinamatsiko, an associate director of the Health Policy and the Law Initiative at Georgetown University’s O’Neill Institute, said that the plaintiffs asked the court for a “universal remedy” that would stop enforcement of USPSTF’s recommendations across the country, which could “prevent millions of Americans” from accessing preventive care.
With the decision still looming, Americans said preventive care is one of the top essential health benefits mandated by the ACA, with nearly 1 in 4 ranking it as one of the most important services for commercial insurance plans to cover. Respondents ranked emergency services as the most important benefit, followed by prescription drugs and hospital care.
In Morning Consult’s survey, half of U.S. adults said they delayed or skipped care due to cost, with 3 in 10 saying they did so in the past year. Among those who live in households that make under $50,000 a year, 32% said they delayed care in the past year, compared with 22% of those who make $100,000 or more.