March 29, 2023

POLITICO contacted 24 state Medicaid agencies where abortion is legal and its status is not compromised. Health officials in 10 of those states said they are reviewing the federal government’s proposal and have not yet decided whether to apply. Massachusetts and Minnesota are awaiting additional federal guidance. North Carolina is not following the policy and 11 states have not responded to requests for comment.

States’ reluctance to take up the administration’s offer is the latest example of how the White House’s ability to contain what Biden has repeatedly called a “healthcare crisis” without congressional action.

“There’s no question that part of the challenge here is that there are real limits to the authority of the executive branch,” said Andrea Miller, president of the National Institute for Reproductive Health. “They continue to look for creative solutions and also run into the limits of their authority, which frustrates everyone.”

Since the Supreme Court was overthrown Roe v. Wade in June, the Biden administration used a federal emergency medical bill to challenge Idaho’s near-total abortion ban, warning pharmacists not to withhold prescription drugs just because they could also be used to induce abortion, and asked mobile carriers to share information about, among other things, their data retention and data privacy policies.

But the White House has largely failed to maintain access for people living in states with anti-abortion laws.

“We try to use every lever at our disposal to think about every possible solution, no matter how narrow. If it can help even just one person, it’s worth considering,” a senior health official, who was given anonymity to speak freely about the government’s strategy, told POLITICO. “We’ve said, ‘Open door, you have an idea, come to us’, because we try to help everyone in any way we can. But the reality is, there is no panacea here.”

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While many governors who support abortion rights are similarly committed to increasing access, health officials are debating whether the Byzantine, month-long process to obtain a Medicaid waiver is the best way to help out-of-state residents with a disability. low-income seeking abortion care.

Some officials noted that seeking federal authorization to cover additional benefits through Medicaid is a cumbersome process — and that their time and money would be better spent helping people in states with strict anti-abortion laws in other ways.

“The number of women who will be affected in that particular circumstance … would be a pretty small number,” Deidre Gifford, Connecticut Department of Social Services commissioner and senior adviser to the governor for health and human services, told POLITICO . “We keep refining our ideas, and we keep going back and forth with CMS about whether our ideas fit something that would be useful, and if so, we’ll move on, and if not, we’ll move on to what we are doing to expand and support access for women who need to travel from another state.”

One of the restrictions facing state officials is the Hyde Amendment, which prohibits the use of federal Medicaid money for abortions except in cases of rape, incest or to protect the life of the pregnant person.

Connecticut is therefore looking at transportation and shelter for abortion-eligible people who are Hyde-eligible and unable to access the procedure in their state. The median out-of-pocket costs for an abortion in 2021 ranged from $528 to $775, depending on whether the abortion was in the first or second trimester, according to the Kaiser Family Foundation. But patients can earn hundreds of dollars in additional costs for transportation, lodging, childcare and other costs associated with traveling to another state.

It may be easier — and faster — for states to use their own tax dollars to help local organizations facilitate travel for out-of-state residents rather than jumping through the hoops needed to access federal Medicaid funds. .

States and cities have already allocated millions to help their out-of-state residents and patients obtain abortions. Oregon lawmakers approved $15 million in grants to community organizations this spring to support access to abortion. In May, New York Governor Kathy Hochul announced $35 million, in part to expand the capacity of abortion providers and ensure access for patients seeking abortions. Gov. Gavin Newsom signed legislation last week establishing the California Reproductive Health Equity Program, which will allocate an initial $40 million in grants to providers offering uncompensated abortion and other reproductive health care.

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Local authorities do the same. In July, St. Louis established a $1.5 million reproductive equity fund, in part to help organizations that provide practical support, such as travel expenses and childcare, to people leaving the state to have abortions. And New York City approved $1 million earlier this month to expand access to abortion care.

While state health officials say they are grateful the Biden administration is involved, none of the Medicaid agencies POLITICO has contacted have decided whether an waiver is the best solution to help people who travel across state lines to have abortions. to get.

“We remain in uncharted territory without further guidance from CMS. We don’t have any of the typical legal precedents that could help clarify this,” said Dianne Hasselman, interim director of the National Association of Medicaid Directors. “We are not aware of any statement from CMS that it will not provide further guidance, but we also do not know if they will.”

Applying for a Medicaid waiver — also called an 1115 waiver because of the section in the Social Security Act that gives the health secretary the power to approve experimental programs — is complex and lengthy, with a lot of back and forth between states and CMS . It takes a minimum of 30 days between when the state publicly publishes its waiver proposal and when the state can file its application with CMS, and federal approval takes a minimum of 60 days, according to a analysis by the Kaiser Family Foundation.

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The last state directive was: a letter from august from HHS Secretary Xavier Becerra to governors reminding them of the waiver possibility but not providing additional information about what the federal government would like to approve.

“This is a priority for HHS, and states interested in federal Medicaid funding to expand access to care within the scope of Medicaid’s legal authority for women traveling from a state that has restricted or banned abortion are being encouraged to partner with the Centers for Medicare & Medicaid Services,” Becerra wrote.

State health officials say HHS could help by releasing a template or outline of what it would be willing to approve. Federal health officials say states should work with them individually to develop solutions that meet their needs.

“We really need states to give us a little bit more information about what they would like. That’s because of the various informal conversations they have with CMS,” one second senior health official said. “But ultimately we need something from them to act and increase access.”

If an exemption were to be approved, states would need to make sure that low-income out-of-state residents know that aid is available and help them through the approval process — when states are already struggling to qualify their own Medicaid-eligible residents. to achieve.

And any attempt to expand access to abortion through Medicaid would almost certainly face legal challenges.

Vikki Wachino, a former deputy CMS administrator in the Obama administration, said that if federal health officials release too specific guidelines, states could be discouraged from exploring other innovative approaches.

She also noted that the waiver process takes time and states may be able to pursue their own state-level funding approaches in conjunction with seeking authority through Medicaid.

“The coaching is out for a month. I can’t imagine a time when the federal government offered another chance and got a response from the state a month later. Only the states need time to figure out how they want to go about it. Do they want to move forward? What does it mean for them and their delivery system and their finances?” said Wachino. “I would give it some time.”