New Federal Guidance on Employer Preventive Health Services Requirement

The new guidance from the Departments of Labor, Health and Human Services and Treasury addresses which preventive services employers must continue to cover without cost sharing and which services they don’t have to continue to cover given the recent court decision in Braidwood Management Inc. v. Becerra.

 Background: On March 30, 2023, a federal court struck down the ACA mandate that requires employer health plans to cover without cost sharing the preventive service recommendations of the U.S. Preventive Services Task Force (USPSTF) that have an “A” or “B” rating. The Department of Justice filed an appeal on March 31, 2023, and a motion for a stay on April 12, 2023.

The new guidance says:

• Employers must continue to cover without cost sharing USPSTF recommendations with an “A” or “B” rating that were in place before March 23, 2010. This includes recommendations related to breast cancer screening, mammography, and prevention.
  
  
• Employers may, but are no longer required to, provide first-dollar coverage for “A” or “B” recommendations that were published after March 22, 2010. This includes screening for hypertension, colorectal cancer and cervical cancer.
  
  
• USPSTF recommendations with an “A” or “B” rating that were made on or after March 23, 2010, will continue to be treated as preventive care for high deductible health plans until further guidance is issued.
  
  
• Employers must continue to cover without cost sharing immunizations recommended by the CDC’s Advisory Committee on Immunization Practices and the preventive care and screenings for infants, children, and adolescents in the Health Resources and Services Administration guidelines.

States can enact and enforce laws that require fully-insured plans to cover without cost sharing USPSTF recommendations with an “A” or “B” rating that were published after March 22, 2010.

Before employers change their plan benefits in response to the court decision, they should determine if changes can be made during a plan year or if they must wait until the next plan year begins. Employer plans must also comply with all notice requirements when making any changes to the terms of coverage. Employers may also want to wait until the courts rule on the appeal and motion to stay the decision.