Women rely on the Medicaid program. Twelve percent of all women of child bearing age?over 7 million women?rely on Medicaid and related programs for family planning
services. Seven in ten Medicaid beneficiaries older than age 14 are women. Medicaid is the single largest source of public funding for family planning services and supplies.1
All States have Medicaid programs. To obtain federal funding, States must meet requirements set forth in the Medicaid Act and regulations.2 In addition, 26 states have received ?waivers? from the federal government that give them permission to disregard some of the Medicaid requirements and extend family planning benefits to people who would not otherwise qualify for Medicaid.
There is considerable variation from state-to-state in terms of covered populations and benefits. This Q&A answers some questions about the federal requirements for Medicaid coverage of reproductive health services.
I. What services does Medicaid cover?
A number of Medicaid laws address the scope of benefits. Significantly, the coverage rules for adults differ from those that apply to children and youth (those under age 21).
With respect to adults, States must pay for certain services and, in addition, have the option to cover others that are listed in the Medicaid Act. A number of these services can be used to meet a person?s reproductive health needs. For example, mandatory services for adults include inpatient hospital services, outpatient hospital services, laboratory and X-ray services, and physician services.3 As discussed more fully below, coverage of family planning services and supplies is required. In addition, limited income women who are pregnant are eligible for Medicaid coverage of services related to pregnancy (including prenatal, delivery, 60-day postpartum and family planning services) and ?other conditions which may complicate pregnancy.?4 Optional services include prescribed drugs and preventive services.5
The Medicaid Act does not usually define the minimum level of each service. Moreover, the Act has been interpreted to allow States to place quantitative limits on the amount of a mandatory or optional service it will cover.6 When making coverage decisions, the federal laws require States to establish reasonable standards; assure a sufficient amount, duration and scope of coverage; and avoid discriminating on the basis of diagnosis or condition.7
Medicaid-eligible children and youth under age 21 are entitled to the broadest coverage. States must cover Early and Periodic Screening, Diagnosis and Treatment (EPSDT), which includes any mandatory or optional service (whether or not covered for adults) when needed to ?correct or ameliorate? an individual child?s physical or mental condition. Thus, children and youth are entitled to a uniform scope of benefits when needed to correct or ameliorate a problem.8The screening and treatment services available through ESPDT can be particularly important for at-risk adolescents in receiving reproductive health services.9
In 2006, the Medicaid Act was amended to give States the option to enroll Medicaid recipients into pre-existing health insurance plans (e.g. a private or commercial health insurance plans).10 States choosing this option can ignore Medicaid?s traditional rules governing coverage of mandatory and optional services. Notably, the population groups that can be affected by this option are limited in the federal law and include, for the most part, healthy children, working parents, and pregnant women with incomes exceeding 133% of the federal poverty level. States electing the option must continue to cover EPSDT for children and youth. To date, only a handful of states (e.g. Idaho, Kansas, Kentucky, Missouri, South Carolina, West Virginia, and Wisconsin) have chosen this option. And while it is conceivable that states could receive federal approval to provide insurance plans that do not include family planning or other reproductive health services, none of the programs approved to date contain such limits.
II. What family planning services and supplies are covered?
When Medicaid was enacted in 1965, it did not include family planning services and supplies among covered services. However, Congress amended the Act in 1972 to improve the availability of family planning services. First, Congress required States to cover ?family planning services and supplies furnished (directly or under arrangements with others) to individuals of child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State [Medicaid] plan and who desire such services and supplies.?11 Congress also took the unusual step of setting a uniform, national rate of federal funding, set at 90 percent of the cost of the service or supply.12 As a result of these changes, State Medicaid programs must cover family planning services and supplies; however, they are responsible for only 10 percent of their cost.
The Medicaid Act does not list the specific types of family planning services and supplies that must be furnished. It is clear, however, that Congress intended broad coverage that would include the ?offering, arranging and furnishing? of services and supplies.13 A report at the time of the 1972 amendment also emphasized Congressional intent that the coverage ?aid those who voluntarily choose not to risk an initial pregnancy,? as well as those families with children who desire to control family size.14
The federal agency responsible for Medicaid, the Centers for Medicare & Medicaid Services (CMS), has published guidance on coverage of family planning services. CMS informs States:
You may choose to include ? only those services which either prevent or delay pregnancy, you may more broadly define the term to also include services for the treatment of infertility…. You are free to determine the specific services and supplies which will be covered as Medicaid family planning services so long as those services are sufficient in amount, duration and scope to reasonably achieve their purpose. You must also establish procedures for identifying individuals who are sexually active and eligible for family planning services.15
CMS does mention some services and supplies by name. According to CMS, the 90 percent matching rate includes the costs of counseling and patient education; examination and treatment by medical professionals; laboratory exams and tests (e.g. STD testing); medically approved methods, procedures, pharmaceutical supplies and devices to prevent conception; sterilization (with properly completed consent forms); and infertility services, including sterilization reversals. On the other hand, the family planning matching rate is not available for abortions, transportation to a family planning service, a hysterectomy, or for costs related to other procedures performed for medical reasons, such as removal of an intrauterine device due to infection.16 These services are, however, covered at the State?s regular matching rate.17
It should also be noted that the earliest family planning waivers from the federal government allowed the states flexibility to determine the range of family planning services and supplies. Recently, however, services and supplies available under these waivers may be more narrowly defined. For example, in New Mexico?s waiver, CMS refused to apply the family planning rate to STD treatment.18
In sum, States have some flexibility to decide what family planning services to cover for adults so long as the coverage is consistent with congressional intent and sufficient in amount, duration, and scope to reasonably achieve the purpose of the family planning service.19 As a result, coverage varies somewhat from state to state. Most States extend family planning coverage to STD testing, condoms, oral contraceptives, IUD insertion, and counseling provided before and/or after the provision of the service. A number of States have placed limits on coverage. For example, as of September 2005, New Jersey covered Norplant, except when provided in ambulatory surgical centers or inpatient hospital settings, limited to two insertions and two removals within five years. As of April 2006, Oklahoma covered up to three pap smears per year. As of October 2005, Pennsylvania required the family planning services and supplies services to be under the supervision of a physician. Delaware will not cover the removal of implantable contraceptives if the sole purpose for the removal is for the patient to become pregnant. As of September 2006, Iowa covered genetic consultation clinics, with limits.20
Recent attention has focused on a particular family planning method–emergency contraception (EC). EC is a safe, effective method to prevent unintended pregnancies if the two tablets are taken as soon as possible after unprotected sex or contraceptive failure; it is most effective when taken with 105 hours. Prior to August 26, 2006, EC was available only through prescription. On the 26th, the FDA announced that EC can be sold over-the-counter to women age 18 and older (those younger than 18 still require a prescription). Most States were coveringEC as a covered prescription drug prior to 2006, and 42 States still require a prescription.21 However, State policies following the FDA announcement are evolving.22
III. Who is eligible for coverage of family planning services and supplies?
Family planning services and supplies must be covered for ?categorically needy? Medicaid beneficiaries of childbearing age.23 The categorically needy are defined in the
Medicaid Act and include pregnant women, people who qualify because of a disability, caretakers, and minors who can be considered to be sexually active.24 Family planning services and supplies are optional services for ?medically needy? beneficiaries. The medically needy are individuals whose incomes or resources exceed the categorical eligibility limits and are covered at State option.25 And as noted above, some states have received ?waivers? from the federal government that allow them to provide family planning services to individuals who would not otherwise qualify for Medicaid. For example, Louisiana extends coverage to otherwise uninsured women (aged 19-44) with family incomes at or below 200% of the federal poverty level (compared to Medicaid?s mandatory requirement of 133%), and Missouri extends coverage to otherwise uninsured, postpartum women (aged 18-55) for up to one year (compared to Medicaid?s mandatory requirement of 60 days).
Courts have applied the family planning statute to find that women are entitled to family planning services without having to show a ?medical necessity? for the service.26 At least one court has prohibited a State from conditioning family planning services on parental consent.27
IV. What types of family planning providers can a person choose?
Medicaid beneficiaries can obtain family planning services and supplies from any Medicaid-participating provider.
This freedom of choice is maintained even if the individual is enrolled in a managed care plan, such as an HMO. 28 Medicaid beneficiaries have the right to choose any family planning provider who is participating in their HMO (even if that provider is not their assigned primary care provider) or any other family planning provider who is participating in the Medicaid program, even if that provider is not part of the beneficiary?s HMO. The person can obtain family planning services and supplies outside the HMO without a referral from the HMO.
There are additional protections for individuals enrolled with managed care organizations. For example, the State, or an entity with which it has contracted, must give each
potential enrollee a summary that shows the benefits covered (e.g. family planning) and the names, locations, and telephone numbers of participating providers for each managed care plan. On request, the State must provide more detailed information about covered services.29 The State or the managed care plan must also inform all enrollees about the ?extent to which, and how, enrollees may obtain benefits, including family planning services, from out-of-network providers.?30
For a counseling or referral service that the managed care organization does not cover because of moral or religious objections, the State must provide information about where and how to obtain the services.31 If the only managed care plan or provider available to the beneficiary has ?moral or religious objections? to providing the service the person seeks, then the person must be allowed to obtain the service from any other provider.32 In addition, the managed care plan must allow an individual to disenroll, at any time, if it has a moral or religious objection to providing a service that the individual seeks.33
V. What types of cost sharing can be used?
The Medicaid Act allows States to require beneficiaries to share in the cost of care. Authorized cost sharing includes premiums (amounts paid to obtain the insurance) and/or copayments (charges imposed at the time an individual needs a health service).34 The Act exempts some population groups and services from some or all forms of cost sharing. The exempted services include family planning services and supplies. Exempted population groups also include pregnant women for pregnancy-related services (or any other services, at state option)35
Recent changes to the Medicaid Act give States additional flexibility to increase premiums, copayments and other cost sharing. However, some population groups and services are still protected. States cannot condition Medicaid on the payment of premiums by pregnant women, women undergoing breast and cervical cancer treatment, and children and youth. States are also precluded from imposing cost sharing, such as copayments, on pregnancy-related services for pregnant women, breast and cervical cancer treatments, and family planning services and supplies.36 A State does, however, have the option to impose ?nominal? cost sharing on prescription drugs prescribed to a woman during a family planning visit, if those drugs are not included on the State?s ?preferred? drug listing.37
The cost sharing protections need to be carefully monitored. A 1996 study of Medicaid managed care plans in five states found two of them requiring a copayment for family planning services.38
VI. Does Medicaid cover abortion services?
Since 1977, the Hyde Amendment has restricted federal Medicaid funding of abortions. Federal funding covers abortion services when necessary to save the life of the mother or to end a pregnancy caused by rape or incest.39 According to the federal Medicaid agency, conditions which endanger the life of the mother are defined as ?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 the abortion is performed.?40 A number of courts have invalidated State laws that conflict with the Hyde Amendment.41
Medicaid regulations require a physician to certify in writing to the Medicaid agency the name and address of the patient and that, in his or her professional judgment, the life of the mother would be endangered if the fetus were carried to term.42
Regulations implementing federal Medicaid policies allow federal funding for drugs or devices to prevent implantation of the fertilized ovum and for medical procedures necessary for the termination of an ectopic pregnancy.43 Federal funding also covers related services, such as pregnancy tests, STD tests, and post abortion services provided for complications of nonfederally funded abortions.44
As noted above, if the individual is in a managed care plan and the only managed care plan or provider available to the beneficiary has ?moral or religious objections? to providing the service the person seeks, then the person must be allowed to obtain the service from any other provider.45 In addition, the managed care plan must allow an individual to disenroll, at any time, if it has a moral or religious objection to providing a service that the individual seeks.46
State courts have also required coverage of abortion services based on state constitutional requirements.47 As of May 2007, 17 states pay for other ?medically necessary? abortions for Medicaid beneficiaries using state funds.48
VII. Are there requirements for informed consent?
States must ensure that Medicaid recipients are ?free from coercion and mental pressure and free to choose the method of family planning to be used.?49 Federal regulations also prohibit federal Medicaid dollars from being used to perform sterilizations of individuals who are younger than age 21, mentally incompetent, or who have not given informed consent.50 Federal matching dollars also are prohibited to perform a hysterectomy with the sole purpose of rendering a woman infertile. The regulations specify the informed consent rules, which include a requirement that a woman provide informed consent at least 30 days prior to the procedure. In the case of a premature delivery, consent must have been obtained 30 days prior to the expected due date.51
These provisions are important to protect women who may be pressured to use longlasting contraceptives, regardless of side-effects, or who are facing family caps in cash assistance programs. Yet, the refusal of some states to cover the removal of IUDs or implantable contraceptives when a woman decides she would like to come pregnant may have a coercive effect.
Medicaid coverage of reproductive health services is critical for low and limited income women. The coverage rules can be complex and, to complicate matters more, can change. The National Health Law Program will continue to provide information about Medicaid coverage of reproductive health services and is available to provide technical support with Medicaid issues that may arise.
1 See Henry J. Kaiser Family Found. & Guttmacher Inst., Medicaid?s Role in Family Planning (Oct.
2007); see also Adam Sonfield, Casey Aldrich and Rachel Benson Gold, Alan Guttmacher Inst., Public
Funding for Family Planning, sterilization and Abortion Services FY 1980-2006 (Jan. 2008)
(documenting trends in public spending, nationally and state-by-state).
2 See 42 U.S.C. § 1396a.
3 See 42 U.S.C. §§ 1396d(a)(1) (inpatient hospital), 1396d(a)(2)(A) (outpatient hospital), 1396d(a)(3)
(laboratory and X-ray), 1396d(a)(5)(A) (physician).
4 42 U.S.C. § 1396a(a)(10) (VII) of text following subsection (G). A broad range of services can be
covered to address conditions which may complicate pregnancy. For example, Missouri recently cited
this provision when announcing coverage of the full range of durable medical equipment for pregnant
women. See Mo. Rule 13 C.S.R. § 70-60.010.
5 See 42 U.S.C. §§ 1396d(a)(12) (prescribed drugs), 1396d(a)(13) (preventive). All States have elected to
cover prescribed drugs.
6 E.g. Charleston Mem?l Hosp. v. Conrad, 693 F.2d 324 (4th Cir. 1982) (finding that South Carolina?s 12
day/year limit on inpatient hospital services and 18 visit/year limit on outpatient hospital services satisfied
Medicaid?s ?amount, duration and scope requirements); compare Alexander v. Choate, 469 U.S. 287, 303
(1985) (stating, in dicta, ?Medicaid programs do not guarantee that each recipient will receive the level of
health care precisely tailored to his or her particular needs.?).
7 See 42 U.S.C. § 1396a(a)(17); 42 C.F.R. § 440.230.
8 See. 42 U.S.C. §§ 1396d(a)(4)(B), 1396a(a)(10), 1396a(a)(43), 1396d(r).
9 The U.S. Department of Health and Human Services Centers for Medicare & Medicaid Services (CMS)
has noted the importance of using EPSDT to ?link at-risk adolescents to pre-pregnancy risk education,
family planning, pregnancy testing and prenatal care.? CMS, State Medicaid Manual § 5124.B.3.
10 See 42 U.S.C. § 1396u-7 (added by Deficit Reduction Act of 2005, Pub. L. No. 109-171, § 6044 (Feb.
6, 2006) (eff. Mar. 31, 2006).
11 42 U.S.C. § 1396d(a)(4)(C). The federal regulations also do not define the scope of family planning
services. Proposed regulations on the subject have never been finalized. See 39 Fed. Reg. 42,919 (Dec.
9, 1974) (promulgating 42 C.F.R. § 440.40(c)). There are rules on Medicaid coverage of sterilizations
and hysterectomies. See 42 C.F.R. §§ 441.250-441.259 (explaining conditions for federal funding) and
Appendix F to subpart 441 (required consent form).
12 42 U.S.C. § 1396b(a)(5). The federal matching rate for most other services varies by state (from 50-
76%), with poorer states receiving a greater percentage of federal funding. During 2007, the Bush
administration audited a number of States to assess whether they were properly claiming the costs of
family planning services. All reports concluded that States had inflated their claims. See Dep?t of Health
and Human Services Office of Inspector General, Review of Pharmacy Claims Billed as Family Planning
Under the New York State Medicaid Program (July 2007); Dep?t of Health and Human Services Office of
Inspector General, Review of Pharmacy Claims Billed as Family Planning Under New Jersey?s Medicaid
Program (July 2007); Dep?t of Health and Human Services Office of Inspector General, Review of State
Claims for the Costs of Family Planning Services Provided Through Medicaid Managed Care Programs
(May 2007) (regarding AZ, CO, DE, MA, MO, PA, VA).
13 42 U.S.C. § 1396b(a)(5).
14 CMS, State Medicaid Manual § 4270B.
16 CMS, State Medicaid Manual § 4270B.1.-2.
17 See n. 12, supra.
18 See CMS, Special [Waiver] Terms & Conditions, New Mexico Family Planning Services for Women
of Childbearing Age at 4, App. B (Dec. 21, 2006).
19 CMS, State Medicaid Manual § 4270.
20 Unpublished research, National Health Law Program (August 2007).
21 Hawaii, Illinois, Maryland, New Jersey, New York, New Jersey, Oklahoma, Oregon, and Washington
do not. See National Institute for Reproductive Health, Expanding Medicaid Coverage for EC at the State
Level (June 2007).
22 For more discussion, see National Health Law Program, Over the Counter of Out of Reach? A Report
on Evolving State Medicaid Policies for Covering Emergency Contraception (June 2007).
23 42 U.S.C. § 1386a(a)(10)(A); see also 42 C.F.R. § 440.210(a) (required services for pregnant women
include family planning).
24 42 U.S.C. § 1396d(a)(4)(C), CMS, State Medicaid Manual § 4270.
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