HHS Must Enforce Medicaid Abortion Coverage Requirements
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization worsened a longstanding public health crisis. As of October 14, thirteen states (and counting) have banned all or nearly all abortions. Days after the Supreme Court issued its ruling in Dobbs, U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra vowed that the agency “will leave no stone unturned. All options are on the table. We will do everything within the legal limit of the law to reach patients and support providers.”
Since then, the Biden Administration embarked on a series of actions to protect access to abortion, including issuing two executive orders, a proposed rule that would restore implementation of § 1557 of the Affordable Care Act’s protections against discrimination related to abortion, and guidance to states on federal protections for emergency care, non-discrimination, and privacy. In response to Executive Order 14076, Secretary Becerra issued a report that outlines HHS’s action plan to protect and strengthen reproductive health care, and pledged to “continue to use its authority to protect access to care, including abortion care, and enforce federal law” when rights to care are violated.
Given the escalating abortion crisis, the Centers for Medicare & Medicaid Services (CMS), the HHS division charged with oversight of the Medicaid program, is well-positioned to address longstanding state violations of Medicaid abortion coverage requirements. Medicaid abortion coverage is already severely restricted by the Hyde Amendment, a federal appropriations bill rider that limits abortion funding to only cases of rape, incest, or endangerment of the pregnant person’s life. However, despite these restrictions, CMS is charged with ensuring that all Medicaid beneficiaries receive the coverage that they have a right to no matter where they live. This blog post details some of the ways that states are violating the Medicaid Act’s abortion coverage requirements. It concludes by recommending actions CMS can take to address these violations and ensure, as Secretary Becerra promised, that no stone is left unturned and federal law is enforced.
This blog post details some of the ways that states are violating the Medicaid Act’s abortion coverage requirements. It concludes by recommending actions CMS can take to address these violations and ensure, as Secretary Becerra promised, that no stone is left unturned and federal law is enforced.
How States are Violating Medicaid Coverage Requirements
Failure To Provide Coverage Within All Hyde’s Exceptions
As the U.S. Government Accountability Office addressed in its 2019 report titled “CMS Action Needed to Ensure Compliance with Abortion Coverage Requirements,” a number of states violate federal abortion coverage requirements. States fail to cover abortions required within all three of the Hyde Amendment’s exceptions. In 1993 and 1998, the Health Care Finance Administration (the agency that changed its name to CMS in 2001) issued two letters to states clearly stating that abortions within the Hyde Amendment’s exceptions are considered medically necessary services that all Medicaid-participating states must cover. Yet some states, such as South Dakota and Iowa, continue to violate these requirements. For example, Iowa requires the Governor to sign off on Medicaid-eligible abortions before the state will cover the service, raising serious legal questions about compliance with the Medicaid Act’s comparability requirements.
Moreover, while state Medicaid programs may impose some reporting or documentation requirements before granting coverage under rape and incest exceptions, these requirements must be reasonable and must not deny or impede coverage. States must waive these requirements if a Medicaid beneficiary is unable to comply due to physical or psychological reasons. Unfortunately, several states (e.g. Tennessee, Wyoming, and Wisconsin) have burdensome reporting requirements and no waivers, in violation of federal law.
Research indicates that long before Dobbs, state Medicaid agencies overruled providers’ determinations that pregnancies were endangering their patient’s lives in order to deny abortion coverage. This unwillingness to accept providers’ medical determinations may only worsen as new state restrictions on abortion further muddy the definition of life endangerment or emergency situations. The Biden Administration took swift action to protect access to care in emergency situations by issuing guidance about the obligations health care professionals have to provide care under the Emergency Medical Treatment and Active Labor Act (EMTALA). But while EMTALA requires Medicare-participating hospitals that offer emergency services provide stabilizing treatments, including abortions, for emergency conditions, it does not mandate coverage. Thus, Medicaid enforcement is critical to ensure that beneficiaries do not go bankrupt after receiving lifesaving emergency abortions.
Violations of the Medicaid Act’s Prescription Drug Requirements for Medication Abortions
More than half of all abortions in the U.S. are medication abortions, a safe, effective option. The medication abortion regimen approved by the U.S. Food and Drug Administration (FDA) involves taking two medications: mifepristone and misoprostol. While Secretary Becerra’s recent report to the President addressed the FDA’s review of the Mifepristone Risk Evaluation and Mitigation Strategy (REMS) and federal preemption of state bans of mifepristone, it did not address state violations of federal medication abortion coverage requirements.
All fifty states, territories, and D.C. have adopted Medicaid’s optional prescription drug benefit. Thus, under the Medicaid Act, they must cover the outpatient drugs of all manufacturers participating in the Medicaid Drug Rebate Program, subject to some limited (and in this case, inapplicable) exceptions. Danco Laboratories and GenBioPro, the manufacturers of mifepristone, have such rebates and have at least one certified provider in every state. When GAO published its report, thirteen states and D.C. were violating the Medicaid Act’s prescription drug requirements by failing to cover mifepristone. Following the report, NHeLP partnered with state advocates to send letters to all states that violated Medicaid’s prescription drug requirement. While some states have since started to cover medication abortions, four states—Arkansas, Missouri, Oklahoma, and South Dakota—never responded and did not seem to change their policies or practices. CMS has the power to address these violations.
Leaving No Stone Unturned: What CMS Can Do In A Post-Dobbs World
While the country is reeling from the sweeping state-by-state loss of abortion rights post-Dobbs, Roe v. Wade was never enough to ensure abortion access for people with low incomes, and especially Black, Brown, Indigenous, and other people of color. When the Supreme Court upheld the Hyde Amendment forty-two years ago in Harris v. McRae, it established a separate and unequal standard of abortion access that has greatly harmed intergenerational health equity, economic security, and reproductive justice. Under Dobbs, our country’s separate and unequal system of access to abortion, a critical health care service, is only worsening.
Consistent with Secretary Becerra’s pledge to leave no stone unturned in HHS’s response to the abortion crisis, CMS must prioritize addressing state violations of the Medicaid Act through the following actions:
- Provide guidance on and closely monitor states’ compliance with federal Medicaid coverage requirements;
- Initiate corrective action plans and other actions against states that are violating the Medicaid Act, beginning with previously documented violations;
- Issue updated guidance reiterating that states must fully waive any rape or incest documentation or reporting requirements when an enrollee is unable to comply for physical or psychological reasons, and encourage states to update their certification materials as needed; and
- Given the shifting abortion access landscape and ongoing litigation on HHS’s EMTALA guidance, CMS should issue guidance on state obligations under federal law to provide Medicaid abortion coverage in cases of life endangerment, and emphasize that states must accept providers’ assessment and certification of cases of life endangerment.
As new abortion bans take effect, states will likely increasingly violate federal Medicaid abortion coverage requirements. While HHS’s initial response to the abortion crisis is a solid start, it has the power to address additional barriers to abortion access for Medicaid enrollees.
Abortion is health care. Period. The National Health Law Program works at every level to protect access to the full range of essential reproductive health services, including abortion, in Medicaid, the Affordable Care Act (ACA) Marketplaces, and private insurance. Learn more at www.healthlaw.org/abortion-is-health-care