A federal judge in Texas ruled last week that certain preventative insurance coverage requirements are unconstitutional, throwing health insurance plans into chaos for more than 100 million Americans.
That ruling could spill over to Colorado if it survives an upcoming appeal, but the impact here could be more modest than elsewhere in the country. Lawmakers have written many of the same compensation requirements into state law, at least because most of the judge’s rulings don’t apply.
However, depending on how insurance is obtained, potentially more than 1 million people in Colorado could be affected by the services they receive today at no additional cost.
There’s a lot to unravel here, so let’s dive into the details.
What did the Texas judge do now?
U.S. District Judge Reed O’Connor said last week made highly professional rulings on federal preventive insurance coverage requirementsThe Affordable Care Act, also known as Obamacare, requires health insurance companies to cover preventive services at no additional cost to patients.
To determine which services meet this requirement, the federal government is turning to several expert groups. Among them is the United States Preventive Services Task Force, which makes recommendations on critical preventive services.
Many employers have filed lawsuits, saying they don’t want to pay extra for insurance to cover things they don’t want.judge control In his view, USPSTF experts have not been properly appointed to this policy-making role. It is unconstitutional for federal law to rely on their recommendations Set preventive services that the insurer should cover.
But O’Connor also teeth It is constitutional to rely on decisions made by other groups, including the Immunization Practices Advisory Committee, which makes recommendations on vaccines, and another committee, which makes recommendations on women’s and children’s health.
(To be clear, O’Connor is a federal judge separate from the Texas judges who rule on widely used drugs. Potential to disrupt reproductive health care nationwide.)
Larry Levitt, executive vice president of health policy at the Kaiser Family Foundation, a nonpartisan health care think tank, said preventive services are one of the most popular and least controversial provisions of the Affordable Care Act. And he said O’Connor’s ruling was essentially based on a wording error in federal law. , he is not optimistic about the legislative solution.
“It doesn’t take many words to fix this in law, but it could take very difficult politics,” he said.
What preventive services are we talking about?
Affordable Care Act now relies on expert recommendations Dozens of preventive services needed Covered at no additional cost. And even after O’Connor’s ruling, many of them are still needed.
Some of them were recommended by a group that O’Connor OKed. Also, on a separate issue, O’Connor’s decision to invalidate the USPSTF’s recommendations applies only to recommendations made after 2010.
This means that many preventive services such as healthy baby and healthy mother checkups, vaccinations, mammograms and colorectal cancer screenings will continue to be covered at no extra charge. However, newer recommendations such as lung cancer screening and cholesterol-lowering drugs such as statins do not.
Cynthia Cox, director of the Kaiser Family Foundation’s program on ACA, said about 100 million people use the preventive services that ACA requires each year. However, she said many of the most popular services will continue to be covered at no additional cost to patients.
“I think what’s lost is less commonly used than what’s left,” she said.
This ruling also does not mean that recently recommended services will no longer be covered by insurance. Also, employers and insurance companies may decide to continue offering plans where these services are covered at no additional charge. However, it does mean that some people may end up paying extra for them.
How will this affect Colorado?
O’Connor’s ruling applies nationally, but only to federal law.
As such, Colorado law stipulates that insurers must bear the full cost of USPSTF-recommended services.colorado one of the 15 states with such a provision in state law.
Colorado Insurance Commissioner Michael Conway said his office will continue to use all tools at its disposal to insist that insurance companies cover recommended preventive care at no additional cost.
“This ruling puts a very important health service for the entire nation at risk,” Conway said. “Obviously we think it was a step in the wrong direction.”
But there are pitfalls here. The power of state law to regulate health insurance is only so far. This applies to insurance plans sold in the individual, small group and large group markets. These are all plans purchased from insurers that the insurer takes on the risk.
Many large companies prefer to self-fund their plans, which means paying for their employees’ medical expenses themselves. These plans are authorized by federal law and are beyond the reach of state regulators.
The Department of Health estimates that about one-third of Colorados with some type of health insurance are covered by a self-financed employer plan. That goes for well over one million of her people whose Colorado coverage could be affected by O’Connor’s ruling.
That’s why some experts, like Kaiser Family Foundation’s Levitt, believe state legal protections aren’t enough to soften the blow.
“There are limits to what the state can do here,” he said. “I think the state can and will move to fill some of the gaps left by this ruling. But there are still significant gaps.”
Self-funded employer plans are often managed using an insurance company, so people may not even be aware of the coverage. The insurance section asks me to check my health insurance card. If it says “CO-DOI” anywhere on it, you are covered by a department-regulated plan and are subject to state law protections.
Insurance Commissioner Conway said he was optimistic that employers who self-fund health insurance plans would choose to keep preventive services fully covered.
“It’s a competitive source of talent,” Conway said of health insurance benefits. “So removing what these employees have come to rely on and expect for the better part of a decade could be overkill.”
What does this mean for HIV prevention?
Among the services affected by O’Connor’s decision are HIV preventive drugs under the heading Pre-Exposure Prophylaxis (PreP). These fall under the USPSTF’s post-2010 recommended preventive services category.
But O’Connor has also hit HIV prevention in other ways. It’s a violation of religious freedom.
Colorado law requires full PreP coverage. (Again, Colorado self-funded employer plans are exempt from this requirement.)
However, although O’Connor’s religious freedom ruling is currently non-binding in Colorado, Colorado law could be legally challenged along the same lines. Especially when this ruling is finally upheld by the U.S. Supreme Court.
If patients have to pay for PreP themselves, it can quickly become expensive. Lindsey Dawson, her director of LGBTQ health policy at the Kaiser Family Foundation, said her generic PreP pill costs hundreds of dollars a year. But brand-name drugs can reach $20,000 a year. Also, this does not include costs associated with clinic visits or lab testing.
“We can expect to see new infections as a result of losing the prophylaxis of the HIV prevention toolkit,” Dawson said.
what’s next?
The impact of O’Connor’s ruling will not be immediate.
For one, policies for 2023 are already locked in. Therefore, it will be 2024 before we see the impact here.
There are also appeals. The federal government overturned her USPSTF’s recommendation judgment, and plaintiffs are also seeking to void the preventive health care requirement.
Those appeals could put O’Connor’s sentence on hold while it moves through court. But that also means the end result could be even more dramatic.
Laurie Sobel, Associate Director of Women’s Health Policy at the Kaiser Family Foundation, said:
