Responding to a 2016 request from Congressmembers Diana DeGette and Jan Schakowsky, the Government Accountability Office (GAO) released a February 4 report on the status of Medicaid coverage of abortion. The GAO conducted a literature review and sought information from 51 State Medicaid Offices, the Centers for Medicare and Medicaid Services (CMS), and abortion providers. The report found that individuals face multiple challenges accessing abortions. Even in the context of severe federal restrictions on Medicaid coverage of abortion, the report found that actual coverage is worse than it should be.
Since 1976, an annual appropriations bill rider known as the Hyde Amendment has restricted federal funding for abortion services except in the narrow circumstances of rape, incest, or life endangerment. The current version of the Hyde Amendment requires Medicaid coverage when a patient “suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.” States may use their own funding to cover abortions past these circumstances.
The report cited multiple violations of federal policy. One state, South Dakota, does not cover abortion in cases of rape or incest, forcing survivors to carry these pregnancies to term. In addition, fourteen states do not cover medication abortion: Alabama, Arkansas, Colorado, the District of Columbia, Florida, Idaho, Kentucky, North Carolina, Oklahoma, Rhode Island, South Carolina, Utah, and Texas. The failure to cover medication abortion violates federal law since state Medicaid programs that opt to cover prescription drugs (i.e. all states) must cover all outpatient drugs from any manufacturer participating in the Medicaid Drug Rebate Program. The manufacturer of medication abortion participates in this program. The National Academies of Sciences, Engineering, and Medicine concluded in a report published last year that abortion, including medication abortion, is overwhelmingly safe and that restriction on abortion actually harms individuals’ health.
States have also introduced hurdles that make Medicaid reimbursement even harder under these very narrow exceptions. For instance, some states require that rape and incest survivors report to local authorities in order to receive Medicaid coverage of abortion. While CMS has established that states may have rape-reporting requirements, these must be reasonable and “may not serve to deny or impede coverage for abortions.” Therefore, states must waive any reporting or documentation requirements and consider the procedure reimbursable if the “treating physician certifies that in his or her professional opinion, the patient was unable, for physical or psychological reasons, to comply with the [reporting] requirements.” Although CMS does not require providers to fill out a specific form to meet the certification requirement under the life endangerment exception, 32 states used different forms. Of the 14 states that required documentation of cases of rape or incest, some states specifically required a police report, and other states allowed the beneficiary the option of either filing a police report or filing a report with another public agency, such as a public health agency. The GAO report did not note how many of these states have waivers to the rape reporting requirements, as mandated by federal policy. Lastly, providers interviewed by GAO noted that requesting Medicaid payments puts additional pressures on already strained resources since they often face denials from managed care plans, even when they believe their patients’ circumstances meet the conditions allowed by federal law.
GAO issued important recommendations in response to these problems. It urged CMS to take action to ensure South Dakota’s Medicaid state plan provides coverage for abortions in cases of rape and in cases of incest, in addition to life endangerment, to comply with federal law. It also instructed CMS to determine the extent to which state Medicaid programs comply with federal requirements regarding coverage of Mifeprex and take actions to ensure that all states cover medication abortion.
In a formal letter of response to GAO, CMS said that it was aware of South Dakota’s violation, but did not know that fourteen states were failing to cover medication abortion. CMS agreed with all the recommendations and maintained it will notify the relevant states of their violation of federal requirements. The U.S. House Committee on Energy and Commerce, responsible for overseeing Medicaid issues, expressed its deep concerns with the GAO report, and sent a letter to CMS Administrator Seema Verma requesting documents and answers to questions regarding CMS’ actions to bring the states that are violating Medicaid law into compliance.
Federal Medicaid funding for abortion is severely constrained, but not completely unavailable. The National Health Law Program strongly opposes any restrictions on federal funding for abortion. However, as long as the Hyde Amendment is in place, steps need to be taken at the federal and state levels to ensure that, at the very least, the current requirements for Medicaid coverage of abortion are followed, and people in these dire situations can access the abortions they need and desire.
