Compromise Struck To Preserve Obamacare’s Preventive Care Mandate

The Texas conservatives challenging Obamacare’s preventive care mandate have reached a tentative compromise with the Justice Department that preserves free coverage for a range of services — from syphilis tests to depression screenings.

The agreement, which still needs approval from the 5th U.S. Circuit Court of Appeals, keeps coverage intact nationwide while the case proceeds. The Biden administration, in exchange, pledged not to enforce the mandate to cover HIV prevention drugs and other preventive care services against the employers and individual workers who sued claiming that doing so violated their religious beliefs. This means that even if the Affordable Care Act rules are upheld on appeal, the government can’t penalize the challengers for refusing to cover required services.

The same appeals court ruled earlier this year to temporarily maintain Obamacare’s rules for no-cost coverage of preventive care, which apply to people who have health insurance from their employer or purchase plans on the individual market — hitting pause on a lower court order that the Biden administration warned would threaten access to a wide range of services for millions of people.

Both sides in the case submitted a draft agreement to the court on Tuesday stipulating that the individual Texas businesses and workers that sued over the mandate should be shielded while the case makes its way through the courts, but that the rules should still apply to everyone else with employer-sponsored insurance and Obamacare’s individual market.

Disruptions to the insurance market could still be on the horizon.

The challengers, represented by Texas abortion ban architect Jonathan Mitchell, are seeking to strike down the preventive care mandate entirely, arguing that because the United States Preventive Services Task Force is made up of outside experts who were neither Senate-confirmed nor chosen by a Senate-confirmed agency head, their recommendations of what services should be covered by insurance must be “set aside” and can’t be enforced.

Their suit also claims the requirement for insurance to cover the pre-exposure prophylaxis pill used to prevent transmission of HIV — known as PrEP — violates the religious rights of the challengers. In their legal briefs, they equated covering the highly effective medication with encouraging homosexuality and promiscuity.

The 5th Circuit heard oral arguments on the case last week, and a ruling is expected in the coming months. An appeal to the U.S. Supreme Court is likely no matter which side prevails.

For now, however, the agreement supersedes Texas District Court Judge Reed O’Connor’s nationwide ruling from March striking down all of the decisions made by the United States Preventive Services Task Force since 2010 about what insurers must cover without cost sharing.


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