Fendrick, Bagley Discuss Braidwood Ruling's Effect on Cancer Screening, Contraception


Mark Fendrick, MD, and Nicholas Bagley, JD, discuss how the ruling in Braidwood v Becerra could affect availability of preventive care.

A. Mark Fendrick, MD, director of the Center for Value-Based Insurance Design at the University of Michigan and the co–editor in chief of The American Journal of Managed Care®, and Nicholas Bagley, JD, professor at Michigan Law at the University of Michigan, spoke about how the Braidwood v Becerra ruling could affect cancer screening and other similar preventive care treatments.


How will this ruling affect preventive services in cancer screening?

Fendrick: Yeah, currently, there are 4 cancers that either have an A or B rating from the US Preventive Services Task Force [USPSTF] or a recommendation from HRSA (Health Resources and Service Administration] regarding screening. These include breast cancer screening, colorectal cancer screening, cervical cancer screening, and lung cancer screening. The good news is currently there is some overlap in breast cancer screening and cervical cancer screening with HRSA so that if the task force ruling is upheld, there will be some cancer screenings maintained. I have been told by legal scholars such as Professor Bagley, which I'd like him to comment on, that even though we are still reeling from the fact that this initial ruling pertains only to the task force recommendations prior to 2010, I have heard some rumblings about actually having some of these other preventive services that are currently "spared" by Judge [Reed] O'Connor's ruling that may come back into place. So I worry about the 46 and have been focusing on those A- and B-rated services. But would love to hear your thoughts about potentially what might happen going down the road or prognosticating about those services defined by the CDC or HRSA that currently are spared, but are they going to come back into play?

Bagley: Yeah, I think they very well could. So the Affordable Care Act delegates to 3 different bodies the authority to designate certain services and the [USPSTF] is 1 of those. Judge O'Connor turned back challenges to the decisions made by the other 2. One of those is the Advisory Committee on Immunization Practices [ACIP], and the other is HRSA. These 2 bodies are are slightly different than USPSTF in how they're staffed and who's on them and how they make decisions. But they are the entities that say that immunizations are actually covered with zero cost sharing, and they're the ones who also protect women's preventive services. So not only cervical cancer screening and breast cancer screening, but also, and somewhat more controversially, contraception coverage. So the plaintiffs challenged all of them and lost with respect to the recommendations from ACIP and HRSA.

When the government appeals, the plaintiffs will cross-appeal and will raise their challenges about the contraception mandate and about immunization coverage. And, you know, it's quite possible that they'll win even bigger at the Court of Appeals than they wanted. That has me worried. I think the preventive services in general, losing them would be a very big deal, and losing $0 coverage of contraception would be a very big deal for similar reasons, especially because many forms of the most effective kinds of contraception, the long-acting contraception, are quite expensive. And for women who are looking to get an [intrauterine device] or other contraceptive, it's going to be tempting for employers and insurers to start asking them to pony up some cash in order to get that. And we're gonna get fewer and less contraception coverage, especially among young, price-sensitive women who are exactly the people you would like to be going after that kind of care.

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