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Story at a glance
- Under the 2010 Affordable Care Act, employers are required to provide full coverage for certain preventive services.
- However, a new ruling out of Texas found coverage of certain services, like pre-exposure prophylaxis (PrEP), violates employers’ rights under the Religious Freedom Restoration Act.
- Should this decision be upheld, experts say it will undermine efforts aimed at preventing a myriad of diseases and conditions, including HIV.
Affordable health care in the United States falls far behind other developed nations and is especially unattainable for certain racial minorities and low-income Americans. A new ruling out of Texas could make matters even worse.
Federal Judge Reed O’Connor struck down Wednesday a key provision of the Affordable Care Act (ACA) that requires employer-sponsored insurance to cover certain preventive services – including pre-exposure prophylaxis (PrEP), a medication that drastically reduces the likelihood of contracting HIV – to ensure patients would not shoulder out-of-pocket costs.
The judge ruled that the provision violates the Religious Freedom Restoration Act by requiring people to provide coverage that conflicts with their faith or personal beliefs. The decision, which is expected to be challenged, jeopardizes individual health decisions for the more than 13 million Texans and 150 million Americans overall who have employer-sponsored health insurance.
Higher costs and added barriers for patients
Even before Wednesday’s decision, most Americans vulnerable to HIV infection used PrEP at disproportionately low rates. Overall, 25 percent of the 1.2 million people for whom PrEP is recommended were prescribed it in 2020 – that’s up from 3 percent in 2015. And coverage is not equal, according to the Centers for Disease Control and Prevention (CDC).
White Americans make up 66 percent of PrEP coverage, whereas Black Americans comprise 6 percent of coverage and Latino Americans represent 16 percent of coverage. This is despite Black and Latino Americans accounting for 42 and 27 percent of new HIV diagnoses in 2021. White Americans accounted for 26 percent of new HIV diagnoses.
Gay, bisexual and other men who have sex with men are most at risk for HIV, and this is especially true for Black and Latino communities. HIV also particularly affects Black women, transgender women, and people who inject drugs.
Heterosexual men made up 7 percent of new HIV diagnoses and heterosexual women accounted for 16 percent in 2019.
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New HIV infections are also concentrated in the South, where Americans generally lack affordable access to reproductive health care for HIV and sexually transmitted diseases, birth control, abortion and gender-affirming care. In Texas, more than 22,000 people were prescribed PrEP and more than 123,000 people were at high risk for HIV in 2020.
A month’s supply of a brand-name PrEP is around $2,000 without insurance, while a generic version costs $30 to $60 per month. Most insurance packages offer the medication for free.
If the ruling is upheld, communities most vulnerable to HIV infections – many of whom already face discrimination and stigma – would be tasked with overcoming another financial barrier to receiving preventative treatment, Perry N. Halkitis, a dean and professor at Rutgers School of Public Health, told Changing America.
Halkitis is a public health psychologist who has focused most of his work on infectious disease, and is the founder and director of the Center for Health, Identity, Behavior & Prevention Studies at Rutgers University.
“The last thing you want to do is put another obstacle in place, and if that other obstacle is now financial, then there is going to be even more of a likelihood that uptake will be decreased,” Halkitis said.
Financial burden on workplaces and the economy
The new ruling could make medical costs more expensive for workers, employers and the economy, Halkitis says.
That’s because it is ultimately cheaper to prevent HIV than to treat it, and managing chronic conditions is costlier to employers than preventative services. A company would spend more covering chronic diseases like HIV than it would if it also covered preventative care – something it’s incentivized to do not only to keep costs down but also to ensure the health of their employees.
“You take away PrEP then what’s going to happen is that a subset of your workplace will become HIV infected,” Halkitis said. “So, in turn, you’re going to be paying for lifelong medications. The burden to the economy and to the company is much greater in treating HIV than preventing HIV and that is such a clear argument for PrEP, and such a clear argument that would encourage this organization and this judge to uphold PrEP access.”
The Texas decision also risks opening up the door for employers to deny coverage for any preventive service they feel violates their religious beliefs, risking affordable access to screenings for cancer and heart disease, for instance.
“To me, it speaks about the need for a more universal health care system in our country,” Halkitis said. “Where these kinds of decisions by employers are not being made, where my health decisions are being made by me and not by the person that I work for, where people who need jobs can take jobs without fear of repercussion that their employers are going to tell them who to have sex with, how to have sex, and what to do with their bodies.”
The future of HIV and preventative care
While it’s unclear if the ruling would be enforced outside of Texas or the employers challenging the ACA provision, it would have strong implications for preventative care of all kinds.
In his decision, O’Connor ruled against requiring coverage for other preventative services like screenings for colorectal and other cancers, depression, and hypertension — arguing that the U.S. Preventive Services Task Force’s system for deciding which services should be fully covered was unconstitutional.
Outside of affecting the ACA, the decision from Texas could also impact the country’s goal of eliminating new infections of HIV by the end of the decade.
In the lawsuit, Texas employers argued that paying for health plans that cover PrEP can “facilitate or encourage homosexual behaviour,” adding they do not want or need the coverage themselves because they “are in monogamous relationships with their respective spouses” and “neither they nor any of their family members are engaged in behavior that transmits HIV.”
But access to PrEP does not lead to homosexual behavior, Halkitis noted, likening the argument to those made in the 1990s that claimed putting condoms in schools would promote teenage sex.
“This notion that somehow we make somebody gay because we give them a medication that prevents them from becoming sick is perhaps the most ludicrous, anachronistic, homophobic and completely atheocratic way of thinking about sexual identity,” he said.
HIV can also be transmitted from positive mothers to their children and through needle sharing.
Notably, since the introduction of PrEP and other viral suppressing medications, which make patients unable to transmit the virus, rates of new HIV infections have decreased, especially in high uptake areas like New York.
In 2019, former President Trump’s administration introduced a plan to eliminate transmission of HIV in the United States by 2030.
But if this decision is upheld, it could undermine that mission, while “the goal of having no new HIV infections by 2030 will be completely, completely a non-reality,” Halkitis said. “This is the last thing we need to get this virus under control.”
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