The Affordable Care Act's Preventive Services Mandate: Breaking down the Barriers to Nationwide Access to Preventive Services

Pub. L. No. 111–148, 124 Stat. 199 (2010)

as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111–152, 124 Stat. 1029 (2010).

Pub. L. No. 111–148 § 5000A, 124 Stat. 244 (to be codified at 26 U.S.C. § 5000A).

See, e.g., Jacobson P. D. Gostin L. O. , “Restoring Health to Health Reform,§ JAMA 304, no. 1 (2010): 85–86, at 86 (“Although the act represents a major advance in restoring public health to the national agenda, it fails to truly innovate.”)

Goodman J. , “Empty Promises,” Kaiser Health News, September 27, 2010, available at <http://www.kaiserhealthnews.org/Columns/2010/September/092710goodman.aspx>) (last visited June 15, 2011) (“a vast increase in insurance coverage for such [preventive] services will only increase health care costs and crowd out access to care for those who have more serious medical needs.”).

Gostin L. O. , “Restoring Health to Health Reform: Integrating Medicine and Public Health to Advance the Population's Wellbeing,” University of Pennsylvania Law Review (forthcoming 2011), available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1780267> (last visited June 15, 2011), at 7.

Brandt A. M. Gardner M. , “Antagonism and Accommodation: Interpreting the Relationship between Public Health and Medicine in the United States during the 20th Century,” American Journal of Public Health 90, no. 5 (2000): 707–715, at 708.

The argument that the health care system's poor performance is tied to the failure of the health care system to incorporate public health's attention to prevention has also been made elsewhere. See Gostin ., supra note 4, at 7–30.

29 USC §§ 1132, 1144 (2006 (ERISA's preemption provisions).

42 U.S.C.A. § 300u-11 (2010).

Id., June 10, 2010

Exec. Order No. 13,544, 75 Fed. Reg. 33983 (June 16, 2010) (establishing the National Prevention, Health Promotion, and Public Health Council).

42 U.S.C.A. § 280g-10 (2010).

Id., at § 300u–12.

Id., at §§ 280h, 280h–4.

Id., at §§ 300u–13, 300u-14.

29 U.S.C.A. § 794 f.

42 U.S.C.A. § 280 k.

Id., at § 247b(l).

21 U.S.C.A. § 343(q)(5).

29 U.S.C.A. § 207(r).

42 U.S.C.A. § 2801.

For a more detailed description, see Davis C. S. Somers S. , “National Health Care Reform and the Public's Health,” Journal of Law, Medicine & Ethics 39, no. 1, supp. (2011): 65–68, at 65–66

Public Health Law Network, Public Health Provisions of the Patient Protection and Affordable Care Act, available at <http://www.publichealthlawnetwork.org/wp-content/uploads/ACA-chart-formatted-FINAL2.pdf> (last visited June 15, 2011).

New or renewed after September 23, 2010, except for so-called “grandfathered” plans. For a detailed discussion of grandfathered plans, see Merlis M. , “Health Policy Brief: ‘Grandfathered’ Health Plans,” October 29, 2010, available at <http://www.healthaffairs.org/healthpolicybriefs/brief.php?brief_id=29> (last visited June 15, 2011).

See generally, Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41726 (July 19, 2010)

The interim final regulations, which became effective on September 17, 2010, clarify the cost-sharing requirements when a recommended preventive service is provided during an office visit. Whether there will be cost sharing depends on the primary purpose of the office visit, whether the preventive service is billed separately from the office visit, and whether the preventive services are provided in-network

For example, if a recommended preventive service is billed separately from an in-network office visit, such as when a patient receives a cholesterol screening test (a recommended preventive service), during a routine office visit, cost-sharing requirements may be imposed for the office visit because the recommended preventive service is billed as a separate charge. Id., at 41728

In other words, if the preventive service is billed separately from the office visit, it is the preventive service that has cost-sharing waived, not the entire office visit. Id., at 41738

If, however, the primary purpose of the in-network office visit is the delivery of the recommended preventive service and the preventive service is not billed separately from the office visit, then cost-sharing may not be imposed for the office visit. Also, if the primary purpose of the office visit is not the delivery of a recommended preventive service, but the preventive service is not billed separately from the office visit, then cost-sharing may be still imposed for the office visit

Id., at 41728. The regulations also make clear that health plans are not required to provide coverage for recommended preventive services delivered by an out-of-network provider and may also impose cost-sharing when recommended preventive services are delivered by an out-of-network provider

Id.

It is widely recognized that health insurance creates additional demand for health care services. The additional consumption of health care services attributed to health insurance is referred to as “moral hazard”.

See Nyman J. A. , “American Health Policy: Cracks in the Foundation,” Journal of Health Politics, Policy and Law, 32, no. 5 (2007): 759–783, at 760

Conventional wisdom posits that moral hazard is responsible for the significant increase in health care expenditures. Newhouse J. P. , “Medical Care Costs: How Much Welfare Loss?” Journal of Economic Perspectives 6, no. 3 (1992): 3–21, at 6–7.

Swartz K. , Cost-Sharing: Effects on Spending and Outcomes, Robert Wood Johnson Foundation, December 2010, at 16, available at <http://www.rwjf.org/files/research/121710.policysynthesis.cost-sharing.rpt.pdf> (last visited June 15, 2011). Nationally, American adults use preventive services at slightly more than half the recommended rate.

See McGlynn E. A. , “The Quality of Health Care Delivered to Adults in the United States,” New England Journal of Medicine 348, no. 26 (2003): 2635–2645, at 2641.

42 U.S.C.A. § 300gg-13(a)(1). There is, however, an exception for the controversial breast cancer screening, mammography, and prevention recommendations “issued in or around November 2009.” 42 U.S.C.A. § 300gg-13(a)(5).

U.S. Preventive Services Task Force, “USPSTF A and B Recommendations,” available at <http://www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm> (last visited June 15, 2011).

75 Fed. Reg. at 41741.

Id., at 41743.

Id., at 41741–42.

Id., at 47143.

Id., at 47141.

Id., at 41741–44.

42 U.S.C.A. § 300gg-13(a)(2); 75 Fed. Reg. at 41745–52.

42 U.S.C.A. § 300gg-13(a)(3), (4).

42 U.S.C.A. §§ 1395l, 1395m(n). The ACA does not require Medicare Advantage plans to offer covered preventive services without cost sharing.

42 U.S.C. § 1396

et seq.

Federal Financial Participation in State Assistance Expenditures, “Federal Matching Shares for Medicaid, the Children's Health Insurance Program, and Aid to Needy Aged, Blind, or Disabled Persons for October 1, 2010 through September 30, 2011,” 74 Fed. Reg. 62315, 62316 (November 27, 2009).

42 U.S.C.A. § 1396d(a), (b), effective 1/1/2013.

Congressional Budget Office CBO's March 2011 Estimate of the Effects of the Insurance Coverage Provisions Contained in the Patient Protection and Affordable Care Act (Public Law 111–148) and the Health Care and Education Reconciliation Act of 2010 (P.L. 111–152), at 1, available at <http://www.cbo.gov/budget/factsheets/2011b/HealthInsuranceProvisions.pdf> (last visited June 21, 2011) (estimating 95% health insurance coverage for all non-elderly U.S. residents by 2016, excluding “unauthorized immigrants”).

Gostin L. O. Jacobson P. D. , Law and the Health System (New York: Foundation Press, 2006): At 1

see Brandt Gardner , supra note 5, at 707–08.

This is the meaning I ascribe to this term throughout this article.

Centers for Medicare and Medicaid Services, The Nation's Health Dollar, Calendar Year 2009: Where It Came From, available at <https://www.cms.gov/NationalHealthExpendData/downloads/PieChartSourcesExpenditures2009.pdf> (last visited May 12, 2011).

Hemenway D. , “Why We Don't Spend Enough on Public Health,” New England Journal of Medicine 362, no. 18 (2010): 1657–1658, at 1657. For an example of recent press coverage of a highly visible medical feat,

See Kowalczyk L. , “Getting Accustomed to New Face: Burned Patient Adjusting Well,” Boston Globe, May 10, 2011, available at <http://www.boston.com/lifestyle/health/articles/2011/05/10/face_transplant_patient_adjusting_well/?page=1> (story about U.S.'s first recipient of a full face transplant).

Burris S. , “The Invisibility of Public Health: Population-Level Measures in a Politics of Market Individualism,” American Journal of Public Health 87, no. 10 (1997): 1607–1610, at 1608.

Kovner A. R. Knickman J. R. , eds., Jonas & Kovner's Health Care Delivery in the United States, 9th ed. (New York: Springer Publishing Company, 2008): At 92.

See Starr P. , The Social Transformation of American Medicine: The Rise of a Sovereign Profession and the Making of a Vast Industry (New York: Basic Books, Inc., 1982): At 181 (“In mid-nineteenth-century America, public health was mainly concerned with sanitary reform and affiliated more closely with engineering than with medicine.”).

See Burris , supra note 44, at 1608.

See Kovner Knickman , supra note 45, at 90–91, 99–101, and 110–111.

Id., at 90.

See Gostin Jacobson , supra note 40, at 3.

See Jacobson Gostin , supra note 3, at 85

see also Centers for Medicare and Medicaid Services, supra note 42 (3% public health spending).

Centers for Medicare and Medicaid Services, “National Health Expenditures Aggregate, Per Capita Amounts, Percent Distribution, and Average Annual Percent Growth, by Source of Funds: Selected Calendar Years 1960–2009,” available at <https://www.cms.gov/NationalHealthExpendData/downloads/tables.pdf> (last visited June 15, 2011).

Wylie I. , “Everywhere and Nowhere: A Socratic Dialogue on the New Public Health,” BMJ 319, no. 7213 (1999): 839–840.

See Kovner Knickman , supra note 45, at 87

Burris , supra note 44, at 1609.

See Burris , supra note 44, at 1609.

See Brandt Gardner , supra note 5, at 709.

See Starr , supra note 46.

See Brandt Gardner , supra note 5, at 711.

See Hemenway , supra note 43

Burris , supra note 44

Gostin Jacobson , supra note 40, at 3.

See Gostin ., supra note 4, at 7–30.

See Centers for Medicare and Medicaid Services, supra note 52.

Id.

Kaiser Family Foundation, “Health Care Spending in the United States and Selected OECD Countries, April 2011,” available at <http://www.kff.org/insurance/snapshot/OECD042111.cfm> (last visited June 15, 2011).

Davis K. , Mirror, Mirror on the Wall: How the Performance of the U.S. Health Care System Compares Internationally, 2010 Update, June 2010, at 3, available at <http://www.commonwealthfund.org/∼/media/Files/Publications/Fund%20Report/2010/Jun/1400_Davis_Mirror_Mirror_on_the_wall_2010.pdf> (last visited May 12, 2011).

World Health Organization, “The World Health Report 2000: Health Systems, Improving Performance,” 2000, at 155, available at <http://www.who.int/whr/2000/en/whr00_en.pdf> (last visited June 15, 2011).

See, e.g., Bialik C. , “Ill-Conceived Ranking Makes for Unhealthy Debate,” Wall Street Journal, October 21, 2009, at A19, available at <http://online.wsj.com/article/SB125608054324397621.html> (last visited June 15, 2011).

Carroll A. , “How Do We Rate the Quality of the U.S. Health Care System – Population Statistics,” Incidental Economist, October 19, 2010, available at <http://theincidentaleconomist.com/wordpress/how-do-we-rate-the-quality-of-the-us-health-care-system-%E2%80%93-population-statistics/> (last visited June 15, 2011) (summarizing OECD data)

The data do not include the Russian Federation because it does not submit comparative data. Id.

Id.

Id.

Thorpe K. E. Howard D. H. , “The Rise in Spending among Medicare Beneficiaries: The Role of Chronic Disease Prevalence and Changes in Treatment Intensity,” Health Affairs 25, no. 5 (2006): w378–w388.

Mokdad A. H. , “Actual Causes of Death in the United States, 2000,” JAMA 291, no. 1 (2004): 1238–1245

Mokdad A. H. , “Correction: Actual Causes of Death in the United States, 2000,” JAMA 293, no. 3 (2005): 293–294.

French M. , Shifting the Course of Our Nation's Health: Prevention and Wellness as National Policy, American Public Health Association (2009), at 3–4, available at <http://www.apha.org/NR/rdonlyres/0867A2FF-88EE-41CF-97C3–21E79D8C8896/0/FINALPreventionPolicy.pdf> (last visited June 15, 2011).

Substance Abuse and Mental Health Services Administration, “2007 National Survey on Drug Use & Health: Detailed Tables, Tables

Table 8.31B – Substance Dependence or Abuse for Specific Substances in the Past Year among Persons Aged 12 or Older: Percentages, 2002–2007” (percentage of population dependent upon or abusing alcohol is relatively constant, between 7.5% and 7.8%), available at <http://www.oas.samhsa.gov/NSDUH/2k7NSDUH/tabs/Sect8peTabs1to42.htm#Tab8.31A> (last visited June 15, 2011).

See French , supra note 72.

Buettgens M. Hall M. A. , “Who Will Be Uninsured After Health Insurance Reform?” Robert Wood Johnson Foundation, March 2010, at 2, available at <http://www.rwjf.org/files/research/71998.pdf> (last visited June 15, 2011).

Kaiser Family Foundation, The Uninsured: A Primer, December 2010, at 1–2, available at <http://www.kff.org/uninsured/upload/7451–06.pdf> (last visited June 21, 2011).

15 U.S.C. §§ 1011–1015 (2006).

Id., at § 1012(a) (“the business of insurance…shall be subject to the laws of the several States”).

29 U.S.C. § 1001

et seq. Government plans and church plans are not subject to ERISA. 29 U.S.C. § 1003(b).

Bunce V. C. , Health Insurance Mandates in the States 2010,” Council for Affordable Health Insurance, at 11–34 (listing benefits mandated), available at <http://www.cahi.org/cahi_contents/resources/pdf/MandatesintheStates2010.pdf> (last visited June 15, 2011

While the federal government does impose some benefit mandates, such as the Mental Health Parity and Addiction Equity Act of 2008, 29 U.S.C.A. § 1185a(a), which requires group health plans to ensure that financial requirements and treatment limitations applicable to mental health or substance use disorder benefits are no more restrictive than those applied to medical/surgical benefits, benefit mandates have generally left to the states to apply.

Bellows N. M. , “State-Mandated Benefit Review Laws,” Health Services Research 41, no. 3, pt. 2 (2006): 1104–1123, at 1105.

See Bunce , supra note 80, at 7.

Laugesen M. J. , “A Comparative Analysis of Mandated Benefit Laws, 1949–2002,” Health Services Research 41, no. 3, pt. 2 (2006): 1081–1103, at 1082, 1083–1084.

Id.

Monahan A. B. , “Federalism, Federal Regulation, or Free Market? An Examination of Mandated Benefit Reform,” University of Illinois Law Review 2007, no. 5 (2007): 1361–1416, at 1367.

Id., at 1365–1366.

See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 731 (1985).

See Bellows , supra note 81, at 1106;

Monahan , supra note 85, at 1370 n. 45 (mandate laws represent rent seeking by special interests)

Laugesen ., supra note 83, at 1094–1095 (noting that mandates were also a way for non-physician providers and alternative medicine providers to command health insurance reimbursement).

Id., at 1106.

See Bunce , supra note 80, at 11–34.

See Bellows , supra note 81, at 1106

Laugesen , supra note 83, at 1095

Hyman D. , “Regulating Managed Care: What's Wrong with a Patient Bill of Rights,” Southern California Law Review 73, no. 2 (2000): 221–275, at 247–249.

Furrow B. R. , Health Law, Cases, Material and Problems, 6th ed. (St. Paul: Thompson/West): At 652.

Monahan A. B. , “Value-Based Mandated Health Benefits,” University of Colorado Law Review 80, no. 1 (2009): 127–200, at 198–199

Laugesen , supra note 83, at 1096.

Jacobson P. D. , “Litigating the Science of Breast Cancer Treatment,” Journal of Health Politics, Policy and Law 32, no. 5 (2007): 785–817, at 790.

See Monahan , supra note 93

Laugesen ., supra note 83, at 1097

Hyman , supra note 91, at 247, 249. This is now a federal coverage mandate. 29 U.S.C. § 1185.

See Bunce , supra note 80, at 2.

Kaiser Family Foundation, The Uninsured, A Primer, December 2010, at 2–3, available at <http://www.kff.org/uninsured/upload/7451–06.pdf> (last visited June 15, 2011) (cited above).

Government plans and church plans are not subject to ERISA. 29 U.S.C. § 1003(b).

Pierron W. Fronstin P. , “Erisa Pre-Emption: Implications for Health Reform And Coverage,” Employee Benefit Research Institute, February 2008, at 11, available at <http://www.ebri.org/pdf/briefspdf/EBRI_IB_02a-20082.pdf> (last visited May 12, 2011).

New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 657 (1995) (ERISA preemption designed “to avoid a multiplicity of [state and local] regulation in order to permit the nationally uniform administration of employee benefit plans.”).

29 U.S.C. § 1144(a).

Id.

New York State Conference, 514 U.S. at 657.

29 U.S.C. § 1144(b)(2)(A).

Id., at § 1144 (b)(2)(B).

FMC Corp. v. Holliday, 498 U.S. 52, 61 (1990) (state insurance regulation does “not reach self-funded employee benefits plans because the plans may not be deemed to be insurance companies, other insurers, or engaged in the business of insurance for purposes of such state laws.”)

see also Metropolitan Life Ins., 471 U.S. at 747 (noting in dicta that insured plans and self-insured plans are treated differently under state mandate laws because the deemer clause prohibits states from applying insurance mandates to self-insured employee health benefit plans).

See, e.g., NGS Am., Inc. v. Barnes, 805 F. Supp. 462, 473–74 (W.D. Tex. 1992)

Korobkin R. , “The Battle over Self-Insured Health Plans, or ‘One Good Loophole Deserves Another,’” Yale Journal of Health Policy, Law, and Ethics 5, no. 1 (2005): 89–136, at 95.

Id., at 105.

See Pierron Fronstin , supra note 99.

75 Fed. Reg. at 41727 (for the purposes of the ACA, “[t]he term ‘group health plan’ includes both insured and self-insured group health plans”)

Miller R. W. , “The Effect of the Health Reform Act on Self-Insured Employer Health Plans,” Journal of Health & Life Sciences Law 4, no. 1 (2010): 59–87.

See Maciosek M. V. , “Greater Use of Preventive Services in U.S. Health Care Could Save Lives at Little or No Cost,” Health Affairs 29, no. 9 (2010): 1656–1660 (greater use of preventive services could avert the loss of more than two million life-years annually and result in savings of $3.7 billion).