POLITICO contacted 24 state Medicaid agencies where abortion is legal and his state is not in danger. Health officials in 10 of those states said they are reviewing the federal government’s proposal and have not decided whether to apply. Massachusetts and Minnesota are awaiting further federal guidance. North Carolina is not pursuing the policy and 11 states have not responded to requests for comment.
States’ reluctance to jump on the administration’s offer is the latest example of how the White House’s ability to mitigate what Biden has repeatedly called a “health crisis” remains limited in the absence of 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 keep trying to find creative solutions and they also continue to run up against the limits of their authority, and this is frustrating for everyone.”
Ever since the Supreme Court overturned roe deer v. veal In June, the Biden administration used a federal law governing emergency medical care to challenge Idaho’s near-total abortion ban, warning pharmacists not to stop prescription drugs just because they can also be used to induce an abortion and asked mobile phone providers to share information on their data retention and data privacy policies, among other efforts.
But the White House has largely failed to preserve access for people living in states with anti-abortion laws.
“We are trying to use every leverage we have at our disposal to think of every possible solution that might be there, however narrow. If it can help even one person, it’s worth considering, ”a senior health official, who was granted anonymity to speak freely about the administration’s strategy, told POLITICO. “We said, ‘Door open, you have an idea, come to us’, because we are trying to help everyone we can in any way we can. But the reality is that there is no silver bullet here. “
While many governors who advocate for the right to abortion are similarly committed to increasing access, health officials are debating whether the Byzantine process, which took months to obtain a Medicaid exemption, is the best way to help low-income residents. out-of-state income seeking abortion assistance.
Some officials have noted that seeking federal permission to cover additional benefits through Medicaid is a cumbersome process, and that their time and money could 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 specific circumstance … would be quite a small number,” Deidre Gifford, Connecticut Department of Social Services commissioner and the governor’s senior adviser for health and human services, told POLITICIAN. “We are continuing to refine our ideas and will continue to go back and forth with CMS to understand if our ideas fit into something that would be useful and, if so, we will move forward and if not,” We will continue what we are doing. to expand and support access for women who need to travel from another state. “
Among the limitations of 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 considering transportation and accommodation for people seeking suitable abortions in Hyde who cannot gain access to the procedure in their state. The average live cost 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 rack up hundreds of dollars in additional expenses for transportation, housing, childcare, and other costs associated with traveling to another state.
It may be easier – and faster – for states to use their tax dollars to help local organizations facilitate travel for out-of-state residents instead of jumping through the hoops needed to access federal Medicaid funds.
States and cities have already earmarked millions to help their residents and out-of-state patients get abortions. Oregon lawmakers approved $ 15 million in grants to community organizations to support access to abortion this spring. 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 the legislation last week creating the California Reproductive Health Equity Program, which will award an initial $ 40 million in grants to providers who offer uncompensated abortion and other reproductive health care.
Local governments are doing 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 traveling outside by the state to have an abortion. And New York City earlier this month approved $ 1 million to expand access to abortion treatment.
While state health officials say they are grateful for the Biden administration’s commitment, none of the Medicaid agencies POLITICO contacted have decided whether a waiver is best for helping people traveling across state borders to get abortions.
“We remain in uncharted territory without further indications from CMS. We have none of the typical legal precedents that would help clarify this point, ”said Dianne Hasselman, interim executive director of the National Association of Medicaid Directors. “We are not aware of any CMS statements that they will not provide further guidance, but we also do not know if they will.”
Applying for a Medicaid exemption – also called an 1115 waiver due to the section of the Social Security Act that gives the health secretary the authority to approve experimental programs – is complex and time-consuming, and involves considerable 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 submit its application to the CMS, and federal approval takes a minimum of 60 days, according to an analysis by the Kaiser Family Foundation.
The latest state guidance was an August letter from HHS Secretary Xavier Becerra to governors reminding them of the opportunity for waiver but not providing additional information on what the federal government would be interested in approving.
“This is a priority for HHS, and states interested in federal Medicaid funding to expand access to care under the Medicaid legal authority for women traveling from a state that has restricted or prohibited abortion are encouraged to engaging with the Centers for Medicare & Medicaid Services, ”Becerra wrote.
State health officials say HHS could help by releasing a model or scheme of what it would be willing to approve. Federal health officials argue that states should engage with them individually to develop solutions that meet their needs.
“We really need states to give us a little more information on what they would like. This is coming through the various informal conversations they are having with CMS “, a second a senior health official said. “But, ultimately, we need something from them to take action and help expand access.”
If a waiver were approved, states would need to make sure that low-income out-of-state residents know that assistance is available and help them through the approval process, when states have already struggled to reach their Medicaid-eligible residents.
And any attempt to expand access to abortion through Medicaid would almost certainly face legal challenges.
Vikki Wachino, former CMS deputy administrator in the Obama administration, said that if federal health officials release too specific guidelines, states could be discouraged from exploring other innovative approaches.
He also noted that the waiver process takes time and that states may be able to pursue their own state-level funding approaches in tandem with seeking authority through Medicaid.
“The guide has been out for a month. I can’t think of a time when the federal government offered a new opportunity and received state responses a month later. It only takes time for states to figure out how they want to deal with it. Do they want to move on? What does that mean for them, their delivery system and their finances? “Wachino said.” I’d give them some time. “
