Richard H. Hughes, IV, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, authored an article in STAT News, titled “How to Protect PrEP Coverage, No Matter What Happens in Braidwood v. Becerra.”

Following is an excerpt:

Since a Texas judge’s decision dropped earlier this spring, Braidwood v. Becerra has sent shudders down public health’s spine. Similar to earlier contraceptive mandate cases, Braidwood involves plaintiff-employers who object to paying for health insurance that includes coverage of disease screenings and PrEP for HIV on moral grounds. Their legal claims challenge the U.S. Preventive Services Task Force’s authority under the Affordable Care Act to determine mandatory coverage of clinical preventive measures. They argue that the specific requirement to cover PrEP, or pre-exposure prophylaxis, for HIV impermissibly burdens their religious exercise under the Religious Freedom Restoration Act.

Now on appeal before the U.S. Court of Appeals for the 5th Circuit, the judge’s decision in March overturned the task force’s role in determining which preventive services must be covered by private health insurance under the ACA and enjoined the requirement that payers cover any of its recommended services, including PrEP for HIV. The decision was stayed by the 5th Circuit on May 15 pending its decision on appeal.

But whether or not the task force survives the impending appeal in Braidwood v. Becerra, there is an opportunity to ensure payer coverage of PrEP is maintained and even improved.

Like foxes guarding the henhouse, payers quickly downplayed concerns and reassured us that preventive services would remain covered despite the decision. The same judge whose decision in Braidwood is now on appeal before the 5th Circuit Court of Appeals has deferred a potential stay of his decision, citing these reassurances.

However, access to PrEP should not be taken for granted, even if the Braidwood decision had not suspended coverage requirements nationwide. PrEP coverage today is already suboptimal and stands to significantly worsen in the absence of the ACA requirement that payers cover it without cost sharing for patients, in what is known as the first dollar coverage requirement.

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