In the series of legal challenges against the ACA, the latest is an attack on free preventative care and it just may undermine significant advancements made to the U.S. healthcare system.
The plaintiffs in the court case Kelley v. Becerra assert that the ACA’s free preventative care covers costs of services that contradict their religious beliefs. That’s because baked into the ACA‘s monthly premiums is funding to cover the costs of preventative services like contraception and pre-exposure prophylaxis, a drug given to individuals to prevent HIV.
John Kelley and the other plaintiffs argue that in purchasing ACA coverage, they are implicitly paying for medical services that infringe on their religious beliefs.
The details of Kelley v. Becerra
The plaintiffs’ arguments rely on two constitutional legal arguments. The first is that ACA Section 2713 violates the non-delegation doctrine because it allows non-government bodies to recommend which free preventative care services are covered.
Simply put, the non-delegation doctrine states that “lawmakers cannot allow others to make laws.” The recommended types of preventative care services covered by health insurers were delegated by Congress to three government entities: Preventive Services Force (PSTF), The Advisory Committee on Immunization Practices (ACIP), and the Health Resources and Services Administration (HRSA).
Prior to the ACA’s passage in 2010, recommendations from the aforementioned entities didn’t have much power, but as a result of ACA Section 2713, these entities effectively gained authority to encourage health insurers to cover the costs of their recommended services.
The second argument relates to the appointments clause of the constitution, which states that people must be officers of the United States to use government powers. Kelley and the other plaintiffs argue that the entities making the preventative care service recommendations were not properly appointed by the U.S. government, and rather were assumed into positions of power as a result of the ACA’s verbiage.
The case is being heard by Texas District Judge, Reed O’Connor — the same Judge who once ruled the entire ACA unconstitutional without the federal Individual Mandate. While a decision has yet to be made regarding the ACA’s preventative care, Judge O’Connor has indicated that he takes a kind view of the plaintiffs’ case.
O’Connor’s verdict is not expected until sometime in 2022 and if the decision is in favor of the plaintiffs, finding that this provision of the ACA is unconstitutional, the case will likely be appealed and eventually make its way to the Supreme Court, once again putting the ACA to the test at the highest court.
What’s at stake if the ACA’s preventative care is ruled unconstitutional?
While the Kelley v. Becerra court case doesn’t target the ACA in its entirety, the stakes are still high. Section 2713 of the ACA includes provisions that mandate health insurers to cover 100% of the costs for many preventative services, including anti-smoking programs, cancer screening, and substance abuse counseling services.
Moreover, the ACA’s preventative care provision makes free vaccinations possible, including COVID-19.
Americans stand to lose millions in significant healthcare savings if preventative care provisions are struck down. According to health law and economic experts, insurers would also “have the freedom to reimpose patient cost-sharing for preventative care. In the short run, this could increase the financial strain that patients face when seeking preventative care and discourage them from doing so. In the long run, this could result in increased rates of preventable and expensive-to-treat chronic conditions.”
What’s happening with the ACA now
As this case develops, employers should not be distracted from the significant advancements being made to the landmark healthcare law. Biden recently invested significant resources into the upcoming open enrollment, including $80 million into ACA navigators.
Also among Biden’s ACA reform is increased funding for IRS enforcement. For FY 2022, the agency will receive $13.2 billion in funding for activities including tax enforcement of the ACA’s Employer Mandate.
Under the ACA’s Employer Mandate, employers with 50 or more full-time employees and full-time equivalent employees, known as Applicable Large Employers (ALEs) must:
- Offer Minimum Essential Coverage (MEC) to at least 95% of their full-time employees (and their dependents) whereby such coverage meets Minimum Value (MV); and
- Ensure that the coverage for the full-time employee is deemed affordable based on one of the IRS-approved methods for calculating affordability.
Failure to adhere to these two requirements could subject ALEs to Internal Revenue Code (IRC) Section 4980H penalties.
Organizations that need assistance complying with the ACA’s Employer Mandate this year should read the Employer’s Guide to Coding ACA Form 1095-C.
