Federal appeals court says some employers can exclude HIV prep from insurance coverage
NEW ORLEANS– Employers who challenged some federally requirements for health insurance cannot be forced to provide free coverage for certain types of preventive care, including HIV preparation and some cancer screenings, a federal appeals court in New Orleans ruled Friday.
The ruling by the 5th U.S. Circuit Court of Appeals is limited and applies only to the eight employers who objected to providing coverage. The conservative court refused to make the ruling applicable nationwide.
“Although we predicted the worst, insurers will still be required to cover preventive services, including PrEP, at this time, except for the original claimants. That’s the good news,” Carl Schmid, executive director of the HIV+Hepatitis Policy Institute, said in an email, referring to a common preventive treatment for HIV. But Schmid lamented that the court ruled that the HIV prevention coverage requirement was adopted unconstitutionally, and that the case will go back to a lower court for resolution of other issues that could further cloud the coverage issue.
The requirements in question were adopted by federal health officials under provisions of the Affordable Care Act, also known as Obamacare. Challengers have raised religious and procedural objections to some of the requirements.
U.S. District Judge Reed O’Connor in Texas ruled last year that the demands were contrary to the Constitution. In Friday’s ruling, a three-judge panel of the 5th Circuit said the coverage requirements at issue were unconstitutionally adopted because they came from a body — the United States Preventive Services Task Force — whose members were not nominated by the president and confirmed by the Senate.
Not all preventive care is threatened by the ruling, and attorneys for both sides said some employers could decide to implement copays or deductibles that would keep affected coverage, including HIV preventives, available, if not free.
A analysis drawn up last year by the KFF, a nonprofit organization, found that some screenings, including mammography and cervical cancer screening, would still be covered at no out-of-pocket cost because the task force recommended them before the health care law took effect in March 2010.
Meanwhile, the advisory left a number of issues unresolved, including whether coverage may be required, which was adapted from recommendations from two other entities, the Public Health Service Advisory Committee on Immunization Practices, and the Health Resources and Services Administration.
“The bad news is that the court continues to find the mandate to cover USPSTF-recommended services unconstitutional and is now asking the lower court to review both the HRSA and ACIP preventive services,” Schmid said.
The U.S. Department of Health and Human Services did not immediately respond to an emailed request for comment Friday afternoon.