One of the most significant provisions of the Affordable Care Act (ACA) was the preventive services mandate, also called section 2713. This provision required most health insurers to cover a variety of preventive services without cost-sharing, so long as those services were provided by an in-network provider. The specific services that are required fall into four categories:
The preventive care required by section 2713 includes a variety of essential services, such as vaccinations for diseases like polio, chickenpox, and measles; screenings for many cancers; all methods of FDA-approved contraception; and pre-exposure prophylaxis (PrEP) to prevent HIV transmission.
Under a lawsuit filed in Texas (Braidwood Management v. Becerra), however, insurers would be able to impose cost-sharing for many of these services. The case, filed by the lawyer who created Texas’s abortion ban, contains multiple arguments alleging that the preventive services mandate is unconstitutional. District Judge Reed O’Connor, who previously struck down the ACA in its entirety before being overruled by the Supreme Court, ruled on September 7, 2022, that because the USPSTF’s members were not confirmed by the U.S. Senate, their recommendations are unconstitutional. He also ruled that the requirement to cover PrEP violated the Religious Freedom Restoration Act (RFRA) and struck down that requirement explicitly.
This commentary describes the positive impact that the preventive services mandate has had on access to health care, especially for marginalized populations. After this, it provides policy recommendations for state policymakers to help mitigate the impact if this requirement is eliminated and highlights the need for eventual federal action.
Requiring No-Cost Coverage Improved Access to Preventive Services
The preventive services mandate has significantly improved access to screenings and preventive care by targeting cost-sharing as a barrier to health care. Patients often forgo needed care due to cost-sharing: a new survey by the Commonwealth Fund found that nearly half of respondents skipped or delayed care due to cost, including around one-third of patients with “good” insurance—that is, insurance without high copays or deductibles relative to household income. The same survey found that more than half of insured patients (61 percent) whose coverage required significant out-of-pocket costs reported skipping or delaying care, emphasizing the impact of no-cost coverage.
In the years since the ACA’s implementation, the significance of the preventive services mandate has been made clear. The U.S. Department of Health and Human Services published a report on the impact of section 2713 in early 2022. The report estimates that more than 150 million people (representing more than 80 percent of those with private coverage) could access preventive services without any cost-sharing in 2020. Women were slightly more likely to have had coverage that provides no-cost preventive services in 2020, as shown in Figure 1.
The ACA’s coverage provisions—especially the creation of subsidies for individual coverage and Medicaid expansion—significantly reduced the uninsured rate, especially among people of color. However, much of this reduction was driven by enrollment in Medicaid, which is not regulated by the ACA’s preventive services mandate. The proportion of people enrolled in private coverage has not significantly changed under the ACA, but the value of that coverage has. As discussed below, marginalized groups are especially likely to have benefitted from this provision, and they would be disproportionately harmed if Judge O’Connor’s ruling remains in place.
One of the most obvious examples of how section 2713 has improved the value of health coverage is the requirement to cover the full range of contraceptive options approved by the Food and Drug Administration. This requirement comes through a HRSA recommendation, and the National Women’s Law Center estimated that more than 62 million women had coverage that provided contraception with no cost-sharing in 2021. Research generally supports the idea that this requirement increased uptake. For example, a 2018 study estimated that the contraceptive mandate increased total use by around 2.95 percent, with a disproportionate amount of this increase being long-acting reversible contraceptives—such as intrauterine devices (IUDs)—which are the most effective contraceptive methods.
This coverage requirement saved women an average of around $250 a year. These savings add up, as around two thirds of women were using a contraceptive method in 2018, and nearly every woman will use at least one form during her life. Access to contraception has a huge positive impact on education access, labor force participation, and earnings, making it central to women’s economic wellbeing. Judge O’Connor did not strike down the contraceptive mandate in this ruling, but he ruled against the provision in 2019, and higher courts could expand their rulings beyond what Judge O’Connor’s held.
Other requirements mandated by section 2713 that improved access to screening are at risk of being overturned, however. Pre-exposure prophylaxis (PrEP) is a regimen of drugs (either a daily pill or an injection given every two months) that reduce the risk of contracting HIV by about 99 percent. Access to PrEP drugs is pivotal in ending the HIV epidemic and improving health equity: men who have sex with men (MSM) are disproportionately likely to contract HIV, accounting for around 70 percent of all new HIV cases in 2021, and for Black and Latino MSM, the risk is even higher. Figure 2 shows the breakdown of new HIV cases in 2021 by race and ethnicity among MSM.
In 2019, the USPSTF issued an A-grade recommendation that insurers cover PrEP drugs for patients with high risk of contracting HIV, such as men who have sex with men, transgender women, and sex workers. In 2021, the U.S. Departments of Labor, Health and Human Services (HHS), and Treasury issued new guidance clarifying that insurers must cover the ancillary services to monitor PrEP use, such as kidney function screening and HIV testing, without cost sharing as well. These increases in zero-cost coverage seem to have increased uptake: in 2015, only around 3 percent of the 1.1 million people who could benefit from PrEP took the drugs, and in 2020, around 25 percent of the 1.2 million people who could benefit took PrEP. The average list price for PrEP is more than $1,800 per month, a significant barrier if patients were to be required to pay out of pocket for the drug again.
In addition to the PrEP mandate specifically, Judge O’Connor’s ruling—if it stands—would also undermine access to the other services that the USPSTF has issued an A or B recommendation for, and as with PrEP, people of color would bear the brunt of this loss. Many of the services for which the USPSTF has issued these recommendations disproportionately impact people of color. For example, the USPSTF issued recommendations in 2021 lowering the starting age for routine colon cancer screening to 45. Black people are around 20 percent more likely than other racial groups to get colon cancer and about 40 percent more likely to die from it, according to the American Cancer Society.
Another example is the USPSTF’s recommendation for statin use for older adults at risk of a heart attack. While these drugs are much cheaper than PrEP, the most-commonly prescribed statin in 2020 cost an average of $104 for a thirty-day supply. A 2013 study of Medicare Part D out-of-pocket costs found that increasing the cost-sharing for statins by $40 a year reduced uptake by more than 10 percent. As with colon cancer, Black people were significantly more likely than other groups to suffer from heart disease.
Policymakers Can Ensure This Requirement Stays in Place
State policymakers can enact requirements for insurers in their states to continue to cover preventive services without cost-sharing. Some states have already done this, but these states should ensure that their existing mandates will remain in place if the ACA’s provision is overturned. For example, California’s mandate originally simply required insurers to comply with federal law, but the California legislature passed a law in 2020 that creates a separate reference to the USPSTF, ACIP, and HRSA recommendations that will ensure that the requirement to cover these services without cost-sharing remains in place, even if the federal mandate is struck down.
It is important to note, however, that state law can only go so far. The Employee Retirement Income Security Act of 1974, also known as ERISA, is a federal law intended to “provide uniform, federal regulation of pensions and employee benefit plans” by establishing federal standards for employee benefits, including health coverage. Part of the law includes a sweeping preemption of nearly any state regulation of employee benefit plans, including requirements to cover specific benefits or to do so without cost-sharing. This preemption only applies to self-funded plans: plans where the employer takes on the risk of paying claims, rather than an insurer taking on that risk.
State laws that regulate insurance companies are exempt from ERISA preemption, but neither employers offering self-funded plans nor third-party administrators carrying out self-funded plans are considered insurers under the law. As a result, only fully insured plans—in which the employer pays premiums to an insurer who takes on the risk of paying claims—escape ERISA preemption and can be subject to state regulation. Because of ERISA, state requirements to cover preventive services will only apply to fully insured plans, leaving the roughly two-thirds of patients whose insurance is self-funded without any protections.
To fully protect patients, federal action will be necessary. Without a nationwide requirement, patient access to cost-free preventive services would vary significantly by state. The experience of Medicaid expansion under the ACA demonstrates the willingness of many states to refuse to embrace policies that promote better health, even as those decisions contribute to a widening gap in health outcomes for their residents.
Achieving Health Equity Requires Access to Preventive Care
The Affordable Care Act significantly improved access to preventive care by requiring zero-cost coverage of services mandated by ACIP, HRSA, and the USPSTF. These services cover a wide range of health needs, including cancer screenings, contraception, and drugs to prevent HIV transmission. If these requirements are overturned, it would allow health insurers to reimpose cost-sharing on these services and upend much of the progress made in ensuring that all patients have access to them.
Policymakers at the state and federal level can and should work to ensure that the preventive services mandate remains in place. State policymakers should ensure that their state regulations of insurers require coverage of those recommended services without any cost-sharing. Ultimately, federal policy will be necessary though, as ERISA prevents states from regulating many health insurers. Congress must address the arguments made in this case to ensure that patients continue to have access to their needed preventive services, regardless of future court rulings.