Stricter Medicaid abortion process up for debate in Montana

Jan 11, 2023, 10:00 AM | Updated: Jan 12, 2023, 4:11 pm
FILE - Protesters fill the Montana state Capitol rotunda in Helena, Mont., on Feb. 11, 2015, during...

FILE - Protesters fill the Montana state Capitol rotunda in Helena, Mont., on Feb. 11, 2015, during a rally to show support in an attempt to change the Montana Constitution to define life as beginning at conception. State officials in Republican-controlled Montana want to require prior authorization before its health department pays for abortions for people covered by Medicaid, a proposal critics say would reduce access and delay or even prevent abortion care for low-income women in a state. (Thom Bridge/Independent Record via AP, File)

(Thom Bridge/Independent Record via AP, File)

HELENA, Mont. (AP) — Officials in Republican-controlled Montana on Thursday heard comments against a health department proposal to require prior authorization to pay for abortions for Medicaid patients. Critics say the proposal would unnecessarily reduce access and delay or even prevent abortion care for low-income women.

The Department of Public Health and Human Services wants doctors to submit medical information supporting the need for an abortion to save a patient’s life or for any other medically necessary reason before Medicaid would agree to pay for the procedure. The information would include the number of her pregnancies and children.

Opponents outnumbered supporters 27-1 in the online hearing, in which two Missoula physicians argued the proposal represents an intrusion in the physician-patient relationship, exacerbates the existing health inequities for low-income women and puts medical decisions in the hands of bureaucrats rather than medical providers.

The agency said it is putting into state rules a 1995 court decision that found Montana Medicaid has to cover the costs of “medically necessary” abortions, but not elective abortions. Montana is one of 16 states where Medicaid is required to cover “medically necessary” abortions, according to the Guttmacher Institute.

Under the proposed rule, the state wants to define a medically necessary abortion as one performed to protect the life of the mother or to prevent aggravation of an existing physical or psychological condition for which the patient is receiving treatment.

Alaska’s Supreme Court in 2019 overturned a law seeking to define “medically necessary.”

Montana’s proposed rule would only allow physicians — not physician assistants or advanced practice nurses — to determine medical necessity and provide Medicaid-funded abortion care.

“The reality is advanced practice clinicians … are totally fully capable of providing abortion care and determining medical necessity,” Martha Fuller, CEO of Planned Parenthood of Montana, said prior to the hearing.

In Montana, abortion is legal until 24 weeks of pregnancy. A 2021 law that sought a reduction to 20 weeks is being challenged in court while the state also indicated it wants the Montana Supreme Court to overturn a ruling that the state constitution’s right to privacy guarantees access to legal abortion.

A 2019 federal report said seven states, which were not listed, required prior authorization for Medicaid to cover abortion services at that time. The Centers for Medicare & Medicaid Services did not immediately respond to messages Wednesday and Thursday seeking more information.

As a large rural state, access to abortion is already limited in Montana, and the proposed rule would further constrain access, said nurse practitioner Helen Weems, who provides abortion care at her clinic in Whitefish.

The federal Medicaid program, including state matching funds, will only pay for abortions of pregnancies resulting from rape or incest or that endanger the life of the patient.

A review of Montana abortions paid for by Medicaid over the past decade led the health department “to reasonably believe that the Medicaid program is paying for abortions that are not actually medically necessary,” the agency stated in an explanation of its proposed rule.

The form filled out by those providing Medicaid-covered abortions in Montana does not require submission of additional evidence about why the procedure is medically necessary or required to save the patient’s life. Very few providers offered an adequate explanation, the health department said.

Under the proposed rule, physicians would have to provide more information about patients — including results of physical examinations, imaging determining fetus ages, documentation of chronic health issues and whether patients smoke or use illegal drugs — before the agency would authorize abortion services to ensure it is not paying for elective abortions.

“Whatever the intention, the real-world impact of this proposed rule change will be to bar Medicaid members from essential pregnancy care,” Weems said in an emailed statement.

The department would not require any additional documentation for abortions covered by Medicare if the pregnancy stems from rape or incest, but the agency said it would take further action if the number of those abortions increases above historical levels if the prior authorization requirement is implemented.

In the case of emergency abortions, the stated reason for the abortion will be reviewed before Medicare makes a payment to the provider.

The health department believes the proposed rule change will result in the state spending more money on each abortion because those performed by physicians are reimbursed at a higher rate than those provided by mid-level providers, such as physician assistants and nurse practitioners.

Montana residents Pat Mischel and Keegan Nashan both said putting up roadblocks to get an abortion should not be advocated by the administration of Republican Gov. Greg Gianforte, which promised to cut government red tape and reduce costs.

Sharon Patton-Griffin, a retired educator, said if the state is concerned about protecting the life of an unborn fetus, “remember that this is your personal religious opinion and should have no impact on Montana rules.”

Derek Oestricher, the chief legal counsel for the Montana Family Foundation, said the foundation supports the new rule to ensure taxpayer funds are not used to pay for unnecessary medical procedures.

It’s not clear based on the proposed rule how long the prior authorization process would take or who would make the decisions.

The agency is taking additional public comment through Jan. 20, after which it will respond to the input and issue its rule.

Akilah Deernose, an attorney with the ACLU of Montana, said if the proposed rule is issued, it would likely be challenged in court.

“Simply put, the proposed rule is an abortion ban for the most vulnerable of Montanans with no medical justification,” she said. “It is not constitutionally permissible for the state to subject low-income people to greater hardships simply because they are unable to afford a course of care with which the state does not agree.”

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Stricter Medicaid abortion process up for debate in Montana