Richard H. Hughes, IV, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was featured in a video titled “Payer Responsibility for Preventive Services May Hinge on Braidwood Decision,” where he responded to questions from Julia Bonavitacola of The American Journal of Managed Care®.
Following is a transcript:
What can be done to mitigate the effects of the lawsuit should the lower court decision be upheld?
Well, I think it will be important that payers continue to provide coverage of recommended preventive services, and to do it really consistent with a lot of the guidance that we've seen from CMS over the years. We've seen clarification on things like, if a patient is recommended to receive a colonoscopy that the subsequent pathology for any biopsies during that procedure is going to be covered and the patient won't have out-of-pocket costs. And so for procedures like that or screening tests like that, where there are what we call ancillary services, there could be a lot of confusion if payers do not consistently provide that kind of coverage, not to mention the fact that the the tests and the screenings themselves need to have coverage.
Services like PrEP [pre-exposure prophylaxis] for HIV, if that coverage requirement is displaced, we may see unequal coverage across various forms of health insurance. We've really, from the standpoint of public policy, worked very hard to get to this place with the provision of the Affordable Care Act and then all of the work that CMS has done to really clarify what must be covered by health insurance plans. And so this really does jeopardize, I would say, the evenness of coverage across the United States. And inevitably, if we see variability in coverage, that's going to be confusing for providers. It's going to be confusing for patients.
I've certainly seen the evidence that when recommendations are not clear, when coverage is not clear, it really dramatically impacts the ability of a provider to make a clear recommendation to a patient as to the preventive care they should receive. In turn, that makes the patient less likely, if they don't have the confidence, to receive the service. And so it really does threaten access to preventive care, and it means that we could ultimately see worse outcomes in this country that were entirely preventable.
What is the likely outcome of the lawsuit?
I think it is, as with most cases before the court, difficult to determine what the likelihood or the prospects are of the outcome either way. I will say, if the Supreme Court follows its prior precedent on the severability doctrine, which is very relevant in this case, because there is a piece of the statute that authorizes the US Preventive Services Task Force—it says they're to be independent and not subject to political pressure—and that is language that in the view of the courts, certainly in the view of the lower courts in this case, has meant that they view the task force as not being politically accountable. And so the question is, will the court be willing to sever that language so that the task force can be viewed as and, in actuality, be independent and not subject to political influence. And so if they're willing to follow prior precedent, this law will survive and we'll continue to see the requirement remain in effect.
