DOL, IRS and HHS Release FAQs about ACA and CARES Implementation

The DOL, IRS and HHS (“the Departments”) have released a set of FAQs that explain their position on coverage of preventive services and vaccines in light of a recent court decision.

 On March 30, 2023, the United States District Court for the Northern District of Texas issued a final judgement in the case of Braidwood Management Inc. v Becerra. In the ruling, the court effectively struck down a portion of the Public Health Service Act’s (PHSA) preventive service requirement, specifically services that were given an “A” or “B” recommendation by the US Preventive Services Taskforce after March 23, 2010. These services would no longer need to be provided without cost sharing, and include statins, lung cancer screening, HIV-prevention medication, and medications to lower the risk of breast cancer. 

The Departments specified in the FAQs that although they would no longer be able to force health plans to cover the “A” and “B” services without cost sharing following the order, they strongly encouraged plans (and insurers) to continue to cover such items without cost sharing. They also clarified that many services were not impacted by the Braidwood decision and should still be covered as preventive care. They also cautioned plans against changing their coverage without considering if the services would be required under applicable state laws, collective bargaining agreements or other contractual terms. Plans that do make changes to their coverage must appropriately notify participants of the changes, including making updates to a plan’s Summary of Benefits and Coverage and providing a Summary of Material Modifications if the plan is covered by ERISA.

Importantly, for high deductible health plans (HDHPs), the Departments clarified that until further guidance is issued, the “A” and “B” services no longer required under the PHSA would continue to be treated as preventive care for the purposes of determining whether an HDHP was compatible with health savings accounts under Internal Revenue Code section 223(c)(2)(C). The Departments confirmed that previous guidance issued with respect to preventive services and HDHPs, including Notice 2004-23 and 2013-57 would continue to stand.