by Jason Coon
Case Update: Preventive Care Services and the mandate of preexposure prophylaxis
In February of 2022, the CBA wrote an article informing of a 2021 health plan change requiring all employers to cover PreExposure Prophylaxis or PrEP within their health plans as part of the mandated preventive services.
According to the Centers for Disease Control and Prevention (CDC) “PrEP (pre-exposure prophylaxis) is medicine that reduces your chances of getting HIV from sex or injection drug use. When taken as prescribed, PrEP is highly effective for preventing HIV.”
CBA had advised our membership that the recommended changes were coming from government appointed organizations and not the government themselves. Organizations like that of the:
- US Preventive Services Task Force (USPSTF),
- Health Resources and Services Administration (HRSA),
- Advisory Committee on Immunization Practices (ACIP)
All these organizations have a role in making recommendations for preventive standards for the government. Once new recommendations are made, health plans are required to adopt these recommendations in the next plan year.
A recent court case decided which has immediate nationwide implications warrants an update to our CBA membership.
Court Case and Decision
On March 30, 2023, a 5th District Federal judge in the state of Texas ruled in a case called Braidwood Management Inc. v. Becerra for Christian plaintiffs who “claimed that the preventive services requirements for private health insurance are unconstitutional and the requirement to cover PrEP-specific coverage requirement violates the Religious Freedom Restoration Act (RFRA).”
This case is of interest to the CBA in that there were three main positions that are important:
- THE PREVENTIVE SERVICES PROVISION VIOLATES THE APPOINTMENTS CLAUSE – The court finds that the US Preventive Services Task Force (USPTSF) violates Appointments Clause, therefore, issues a vacatur order as regards any agency action to implement the preventive care coverage requirements pronounced by the USPSTF.
- THE PREVENTIVE SERVICES PROVISION VIOLATES THE RELIGIOUS FREEDOM RESTORATION ACT (RFRA) – It provides a RFRA exemption from the PrEP (pre-exposure prophylaxis) mandate and enjoins government from enforcing PrEP mandate upon these defendants.
- THE PREVENTIVE SERVICES PROVISION STANDING WHEN MORALLY LICIT OPTIONS ARE FORECLOSED – In a lengthy discussion, the ruling explains that a plaintiff might establish standing when the regulation has the effect of foreclosing morally licit options in the marketplace under the “purchaser standing doctrine.”
What does this mean?
Effective immediately and extended nationwide, the ruling blocks the federal government from requiring health plans to cover services recommended or updated by the U.S. Preventive Services Task Force (USPSTF) on or after March 23, 2010.
In addition, the judge ruled that the requirement to cover PrEP medications for HIV prevention violates the rights of the plaintiffs who have religious objections to PrEP.
The federal government is appealing this decision to the United States Court of Appeals for the 5th Circuit.
How does this affect CBA Members?
Those CBA members who wish, can request to have PrEP medications removed from their health plan as part of the USPSTF’s recommended coverage as part of the ACA mandate, effective immediately.
For those who choose to wait for an appeal and next decisions, we still highly recommend learning of prevalence of PrEP within your health plans by establishing reporting with your Pharmacy Benefit Manager (PBM) where you can determine if PrEP is being dispensed and what the cost is to your plan.
As we reported in last month’s For Your Benefit Newsletter, there is a new and expensive injectable PrEP drug on the market called Apretude that has significant more cost impact than it’s pill form counterparts.
Keeping up on the drug plan prevalence and discussing any new PrEP drugs in the patent pipeline with your PBM is a great way to project future costs to the plan.
Catholic Church and Moral Stance
While the Church and the USCCB do not have an official stance on matter of preexposure prophylaxis (PrEP), there is a great ethical perspective provided by our friends at National Catholic Bioethics Center that we recommend reviewing – CLICK HERE.
Some morally illicit aspects to be mindful of:
- These medications are intended for those who are currently engaging in promiscuous, risky sexual behaviors with multiple partners.
- While providing the sense of protection from HIV, there is a false sense of security from contracting other STDs.
- The marketing strategy and target audience for these drugs is same sex attracted, sexually active, males.
Staying Connected with CBA
CBA will continue to follow this case and update our members as further decisions are made. If you’re not receiving our For Your Benefit Newsletter for the latest updates, please contact Mandy Cox in our offices.
For non-members who want more information on the CBA’s existing protections and our newest Catholic Identity improvement projects, please contact us today.