Montana to hold hearing on proposal to change requirements for Medicaid abortions

Patients who need an abortion paid for through Montana Medicaid will need to provide personal information in advance of the service, such as last menstrual period, to prove “medical necessity,” according to a new rule proposed by the state Department of Public Health and Human Services.

In order to show an abortion is “medically necessary” and receive “prior authorization” for reimbursement, a physician must provide specific details about the patient, according to the proposed rule change.

Those include age, last menstrual period, number of times pregnant, behavioral health issues, substance abuse, and other information.

In cases of emergency with no time for advance permission, claims would undergo prepayment review, said the public notice from the Health Department.

“DPHHS must ensure that abortions paid for by Montana taxpayers under Medicaid are truly medically necessary, in accordance with the law,” said Health Department Director Charlie Brereton in a statement. “We welcome comment on the proposed rule and look forward to further protecting the integrity of our Medicaid program through its finalization and implementation.”

At 1 p.m. Thursday, Jan. 12, the department will hold a public hearing via Zoom on the proposed change.

The proposal already is eliciting criticism from some members of the medical community.

Nicole Smith, CEO of Blue Mountain Clinic in Missoula, said preauthorization will delay treatment for time-sensitive medical care and will hurt a vulnerable population, people with few financial resources.

“It is basically requiring a much more strict definition of ‘medical necessity,’ which does not take into account the many, many reasons people need to access abortion care,” Smith said.

THE HEALTH Department explained its rationale for the rule change in the public notice.

A federal rule known as the Hyde Amendment, in funding the U.S. Department of Health and Human Services, limits federal dollars for abortion services, the rule noted.

“Under the current version of the Hyde Amendment, abortion services provided because of rape or incest or where the life of the mother is endangered by the pregnancy, are eligible for federal funds,” the rule said. “The Montana Medicaid program cannot use federal funds or state matching funds to pay for abortions performed for any other reason.”

Montana tried once before to establish the same limits, but the rules were successfully challenged in district court in Jeannette R. v. Ellery in 1995, the department said in the public notice.

The court “concluded that the department had a statutory obligation to pay for medically necessary abortions in the Montana Medicaid program.

“The court emphasized that its decision ‘does not conclude that the state of Montana must fund elective, nontherapeutic abortions.’”

Since the Ellery decision, the department has covered abortion services when a physician has deemed them “medically necessary,” and it pays with state general funds only, the rule said.

But the rule noted a recent review of abortion claims has caused the department “grave concern” and led it to “reasonably believe” the program is paying for “abortions that are not actually medically necessary.”

The 2021 Montana Legislature called for the review of the forms filed in order to justify an abortion.

When a patient needs payment for the service, the department requires a physician to fill out the form and certify one of three reasons for the abortion: It was necessary to save the life; the pregnancy was due to rape or incest; or it is medically necessary, “but the member’s life is not endangered, with space to provide an optional explanation.”

But the review of forms and optional explanation found a “lack of sufficient information to support medical necessity,” the department said in the public notice.

It argues an audit would show inadequate documentation, and the lack of detail indicates the Medicaid program likely is paying for “elective, nontherapeutic abortions.”

“Faithfulness to the scope of the Medicaid program as established by the legislature and to Montana taxpayers and the state funds justifies the department’s decision to require the submission” of documentation with “greater specificity,” the notice said.

“Such requirements are not uncommon and are applied to other Medicaid-reimbursed services to ensure program integrity,” the notice said.

The notice said the change, recommended by a contractor, is estimated to cost the state money to review documentation. It does not offer a dollar amount.

“The department believes that such expenditures are necessary to ensure that the Montana Medicaid program only covers abortion services where required by federal or state law and that it is not covering elective, nontherapeutic abortions,” said the notice.

SMITH ESTIMATED roughly one third of all of Blue Mountain’s patients use Medicaid, and she said the rule places unnecessary barriers in front of patients who need abortion services.

Blue Mountain’s website notes it has provided safe and legal abortion care since 1977.

Smith also said she believes the proposal clashes with the privacy protections in the Montana Constitution and court decisions. The 1999 Montana Supreme Court decision in Armstrong v. State of Montana protects abortion based on privacy, and Smith said the information sought from patients through the proposed rule would not comply with either the Armstrong or Ellery ruling.

Smith also noted the proposal would cut out reimbursement to abortion providers who are physician assistants, nurse practitioners and nurse midwives and make it so only physicians receive reimbursement.

Representatives from the clinic plan to offer public comment on Jan. 12, and Smith said Blue Mountain is hearing from community members who will join in testifying against the changes.

“Our hope is that we see a large outcry (from) the public that this is a really unnecessary and cruel rule change to Montana Medicaid,” Smith said.

The rule notes the department recognizes there is litigation underway in the state on whether “medical practitioners other than physicians may lawfully perform abortions.” But the notice said the amendments would preclude mid-level practitioners from providing abortion services.

The Health Department did not respond to a question about how the proposed rule squared with the Armstrong decision. However, the public notice briefly addressed privacy in the Ellery case.

The district court concluded the regulations “violated the Montana Constitution’s privacy and equal protection provisions,” the notice said. “However, there is good reason to believe that such rulings are mere dicta under principles of constitutional avoidance,” or mere suggestions that are not legally binding.

Keila Szpaller is deputy editor of the Daily Montanan, a nonprofit newsroom. To read the article as originally published, click here.