Culture War Against ACA Scores Win

By: Ranier Simons, ADAP Blog Guest Contributor

March 23, 2023, was the 13th anniversary of the signing of the Affordable Care Act (ACA). The landmark legislation forever changed the landscape for healthcare insurance and healthcare access in the United States. About 35 million people presently have ACA-related healthcare coverage, with 21 million of those enrolled in Medicaid expansion coverage.[1] The law enabled many to obtain robust healthcare coverage who were previously uninsured or underinsured. Most importantly, while not perfect, the ACA is an effective tool to support equity in healthcare coverage and treatment. Through the ACA, participants receive comprehensive and affordable care regardless of their income or lack of.

Unfortunately, from its inception to the present day, there have been political battles over the ACA that are ideological instead of evidence-based. Politicians, judges, and media personalities continually attempt to dismantle the ACA without having the plan to replace it. Opponents of the law have found an ally in Judge Reed O’Connor, a federal judge in Texas. In 2018, Judge O’Connor ruled that the entire ACA was unconstitutional. The Supreme Court eventually defeated the ruling. Judge O’Connor has previously made rulings against the ACA’s non-discrimination provisions, contraceptive coverage requirement, and regulation of insurance provider fees in states.[2]

Photo Source: Law.com

Judge O’Connor’s latest challenge to the ACA is in Braidwood Management Inc. v. Becerra. In this case, six individuals and Christian-owned businesses claim that private health insurance coverage requirements are unconstitutional. Additionally, they argue that being required to provide coverage for PrEP under their insurance plans violates their religious beliefs and thus violates the Religious Freedom Restoration Act (RFRA).[3]

The ACA requires insurers to cover certain preventative care services without any cost-sharing by the insured. Those services will be provided for free when obtained through a provider in an insurance plan’s network. The ACA uses guidance from the United States Preventative Task Force (USPSTF) to determine the aforementioned services. The USPSTF was created in 1984 by the U.S. Public Health Service Act to improve public health through evidence-based recommendations to prevent disease and increase life expectancy.[4] Sixteen national experts on preventative medicine and primary care comprise the USPSTF. They make their recommendations based on scientific evidence with no conflicts of interest or political influence.

Photo Source: Axios

In September 2022, Judge O’Connor ruled that the USPSTF violates the Appointments Clause because the members are not appointed by the President and subsequently confirmed by the Senate; nor are their recommendations reviewed by Constitutionally specified officials. Thus, he decided that the Braidwood Management plaintiffs should not be required to pay for conventional medical insurance plans that mandate coverage of preventative services recommended by the USPSTF because the entity and its recommendations are unconstitutional. Judge O’Connor further ruled that the PrEP coverage mandate violated Braidwood’s religious freedom rights under the RFRA. Braidwood argued that paying for coverage that included provisions for PrEP made them implicit in supporting homosexuality, drug use, and sex between a man and a woman outside of marriage. At the time of the initial ruling, legal remedies had not been specified, and both sides were instructed to present briefs relating to the scope of relief. Moreover, the initial focus was explicitly on Braidwood being required to pay for plans that provided PrEP without cost sharing and the non-religious plantiffs not being required to pay for preventative services such as contraception and std testing.

March 30, 2022, Judge O’Connor ruled on the case's legal remedy. He invalidated the ACA's HIV treatment mandate of providing PrEP, stating it violated Christian employers' rights under the RFRA. Thus, the government could not take any legal action requiring the Braidwood parties and religious objectors to pay for PrEP. He went a step further, stating that any recommendations for preventative services made by the USPSTF on or after March 30, 2010, are unlawful. Effectively, this is a national block meaning insurance plans no longer must cover many preventative services for free. These services include biennial mammography screening for women aged 50-74, cervical cancer screening in women aged 21-65, colorectal cancer screening in adults aged 45-49, and PrEP. The complete list of these services is here. 

Without coverage for PrEP, it is estimated that over 2000 preventable HIV infections will occur within a year.[7] For every 10% decrease in PrEP coverage, there would be an additional 1,140 HIV infections among MSM the following year. Generic PrEP costs $30 per month, and brand-name products that don’t have generic versions can cost over $20K annually. Additionally, there are lab work and provider visits associated with the administration of PrEP. Those expenses are around two thousand dollars a year. Blocking the HIV treatment mandate would result in cost-sharing or complete denial of coverage resulting in out-of-pocket costs that those needing help cannot afford.

Photo Source: NPR

Blocking the coverage mandate for other preventative services would also have dire consequences. Lack of certain screenings means that many conditions, including cancers, will go undiscovered until late stages. This would result in many preventable diseases, decreased healthcare outcomes, including death, and increased medical costs. Such a future is in opposition to the Institute for Healthcare Improvement’s “Triple Aim”: improving the individual experience of care, improving the health of populations, and reducing the per capita costs of care for populations.[8]

Judge O’Connor’s ruling is not the final law. There will be appeals, and it could reach the Supreme Court. Presently in 2023, no plans are affected since the current coverages are in place via the contracts policyholders have with their insurance companies. Additionally, it is possible a hold will be placed on the order as it makes its way through the courts. The American College of Obstetricians and Gynecologists, in a statement, said: "Allowing personal or political bias to interfere with the practice of medicine will cause harm to our patients."[6] Unfortunately, recent policy decisions in Tennessee, New York, and now Texas seem to be setting up the harm the American College of Obstetricians and Gynecologists warns against.

[1] U.S. Department of Health and Human Services. (2022, April 29). New Reports Show Record 35 Million People Enrolled in Coverage Related to the Affordable Care Act, with Historic 21 Million People Enrolled in Medicaid Expansion Coverage. Retrieved from https://www.hhs.gov/about/news/2022/04/29/new-reports-show-record-35-million-people-enrolled-in-coverage-related-to-the-affordable-care-act.html

[2] Sneed,T. (2022, January 28). Judge notorious for anti-Obamacare rulings has another crack. Retrieved from https://www.cnn.com/2022/01/28/politics/obamacare-reed-oconnor-biden-doj-health/index.html

[3] Sobel, L., Ranji, U., Pestaina, K., Dawson, L., Cubanski, J. (2022, October 26). Explaining Litigation Challenging the ACA’s Preventive Services Requirements: Braidwood Management Inc. v. Becerra. Retrieved from https://www.kff.org/womens-health-policy/issue-brief/explaining-litigation-challenging-the-acas-preventive-services-requirements-braidwood-management-inc-v-becerra/

4) USPSTF. (2021). USPSTF: An Overview. Retrieved from https://www.uspreventiveservicestaskforce.org/uspstf/about-uspstf/task-force-resources/uspstf-overview#:~:text=The%20U.S.%20Preventive%20Services%20Task,prevent%20disease%20and%20prolong%20life.

5) Braidwood v. Becerra, 2022,  https://storage.courtlistener.com/recap/gov.uscourts.txnd.330381/gov.uscourts.txnd.330381.92.0_2.pdf

6) Pierson, B. (2023, March 30). U.S. judge blocks Obamacare coverage mandate for some cancer screenings, PrEP. Retrieved from https://www.reuters.com/business/healthcare-pharmaceuticals/texas-judge-blocks-obamacare-coverage-mandate-prep-cancer-screening-2023-03-30/

7) Klein, H. (2023, March 29). PrEP court ruling could lead to thousands of preventable HIV cases. Retrieved from https://www.ajmc.com/view/prep-court-ruling-could-lead-to-thousands-of-preventable-hiv-cases

8) IHI.(2023) The IHI Triple Aim. Retrieved fromhttps://www.ihi.org/Engage/Initiatives/TripleAim/Pages/default.aspx   

Disclaimer: Guest blogs do not necessarily reflect the views of the ADAP Advocacy Association, but rather they provide a neutral platform whereby the author serves to promote open, honest discussion about public health-related issues and updates.  

Trump Administration Seeks to Re-Write Portions of 1557 Final Rule

By: Jen Laws, Board Member, ADAP Advocacy Association, and HIV/transgender health advocate

When the Patient Protection and Affordable Care Act ("ACA"), or commonly called Obamacare, passed in 2010, of hot but limited debate was the potentially expansive nature of Section 1557 of the legislation. Considered to be a broad expansion of non-discrimination protections in health care, Section 1557 “prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities.” Section 1557 is the first federal civil rights law to prohibit discrimination on the basis of sex in covered health programs and activities.

Despite citation of enforcement of this provision since 2010, the Obama Administration would wait until September 15, 2016 to issue a Final Rule outlining exactly how Section 1557 should be applied. Of particular note in the 380+ page rule, the U.S. Department of Health & Human Services ("HHS") gave guidance on translation service requirements, disability accommodation requirements, quality of care with regard to pregnancy history, and classified transition related care for transgender people as care protected on the basis of sex. HHS would cite certain legal precedent, including the Supreme Court decision in Price Waterhouse v. Hopkins (1989) and subsequent case law pertaining to “sex stereo typing” as it relates to gender identity and expression. In a somewhat surprisingly broad application, HHS’ Final Rule not only stated ability for government enforcement of Section 1557 but the right of private action by aggrieved patients. In short, patients were being extended the opportunity to sue certain private health care and insurance providers for refusing care to transgender people. To say this was a “big deal” would be an understatement. Transgender advocates went WILD with joy and celebration of a major win.

Vast portions of the Final Rule were to go into effect on January 1, 2017. On December 31, 2016, at the behest of five states and a group of Christian identified medical providers (including dentists…I’m not kidding), Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas issued an injunction against implementation of portions of Section 1557 regarding transgender patient care protections and abortion related care. Judge O’Connor has a nasty history of him issuing rulings that marginalize LGBTQ Americans. This case, Franciscan Alliance, Inc. et al v. Burwell, was no different. The injunction prohibited the government from implementing and enforcing the Final Rule. It did not, however, prevent patients from seeking suit should they experience discrimination.HHS would reverse the position of defending the Final Rule after the administrative transitioned over to Donald J. Trump. In July, 2017 HHS submitted a brief seeking a stay while it “reconsiders” the policy, indicating an intention by new HHS leadership to walk back the nature of the protections offered by Section 1557. The stay was granted. It is of important note that HHS’ Office of Civil Rights is now lead by Roger Severino, an appointment widely opposed by equality organizations on the basis of Severino’s well documented and very public statements in support of discrimination against LGBTQ people.

The change has been haunting transgender advocates for almost a year. And here’s why:

• Broadly, prior to the ACA, transgender identity was considered a “pre-existing condition”. The prohibition of refusal of coverage on the basis of a pre-existing condition meant transgender people, for the first time, could not be refused coverage at the application process. Still, transgender people commonly faced notation that plans did not cover transition related care. The Obama Administration's version of the Final Rule explicitly outlined that insurance companies could no longer continue the practice of excluding transition related care, impose burdensome requirements to qualify for coverage through discriminatory plan design, or impose burdensome appeals processes due to automatic denials of care because of a “sex mis-match” in approval systems. While HHS was not prescriptive in telling insurance companies how to address these issues as the most common barriers to coverage transgender people face, the agency was clear: “care delayed is care denied”.

• Another unfortunately common experience transgender people faced and continue to face is “transgender broken arm syndrome”, a situation where a transgender person seeks routine medical care unrelated to their transition care but receives less than standard quality of care due to bias of providers. A real-life example I encountered in my advocacy includes a transgender woman seeking emergency care for trouble breathing. The patient was asked about her current medication use, including an estrogen, wherein she disclosed her identity as transgender. She was given two breathing treatments and sent home. The patient was not given a chest x-ray or other diagnostics to determine appropriate care. The patient returned the emergency room a few days later with pneumonia, a diagnosis she only received after having to insist on a chest x-ray. The Final Rule under the Obama Administration considered this type of treatment, no matter the setting, to be discriminatory in nature and a violation of the protections afforded under Section 1557.

• According to the 2015 US Trans Survey, a work product from the National Center for Transgender Equality, 25% of transgender people experienced being denied routine or transition related care by their insurance provider, more than half of those seeking coverage for transition-related surgery were denied, and 25% of those seeking coverage for hormone replacement therapy were denied. The same survey also found that 33% of respondents who saw a healthcare provider experienced refusal of care, being verbally, physically, or sexually assaulted, or having to teach their providers about transgender people in order to receive appropriate care. Because these experiences are known among this community, 23% of respondents did not see a medical provider when the needed to out of fear of being mistreated. These findings are particularly worse for transgender people of color. Compounding fears of discrimination, potential refusal of coverage, and discrimination in employment, 23% of transgender people did not seek care when they needed it because they could not afford care.

• In 2011, the Centers for Disease Control & Prevention ("CDC") revised HIV surveillance to include transgender people as a target population. In 2017, the CDC acknowledged transgender people as underserved and interventions for this community as understudied. The 2015 US Trans Survey found a self-reported rate of HIV among transgender populations of 1.6%, or FIVE TIMES that of the general population, with a self-reporting rate of 19% among Black transgender women.

• In October 2017, HHS issued a new Conscience Rule, specifically targeting abortions, assisted suicide, and transition-related care. While not even daring to mention the word “transgender”, the agency couched the discriminatory Final Rule under the language of “sterilization”. Transgender advocates rightly fear the impact of codifying sanctioned discrimination in health care under the current administration. Rolling back the reach of Section 1557 as a protective provision would open the flood gates of claims of “religious liberty” to deny care and coverage to transgender people.

HIV service organizations and advocacy groups hold a unique opportunity to advocate for this highly marginalized intersection of HIV-positive, transgender people. As transgender advocacy organizations take to legal action to slow the tide of discriminatory action by the current Administration, HIV advocates would do well to seek ways to support the fight ahead, institute model policy for both transgender clients and employees, and work to provide a backbone of social and medical support for this community.

From community based agencies to State AIDS Drug Assistance Programs, identifying and educating legislators to advocating for expansive formularies, covering transition related HRT in both Ryan White Part A and B (ADAPs), the power of partnered advocacy cannot be understated. We cannot “get to zero” without addressing the needs of transgender people and we cannot address those needs without strong protections, combating systemic discrimination against transgender people.




Disclaimer: Guest blogs do not necessarily reflect the views of the ADAP Advocacy Association, but rather they provide a neutral platform whereby the author serves to promote open, honest discussion about public health-related issues and updates.