By Adam Sonfield
Senior Policy Manager
Federal agencies are continuing to issue regulations and guidance with a sense of urgency, and, in several cases, the implications for family planning care may be profound.
As noted in my previous column, CMS has been particularly active this year. (See the July 2016 Washington Watch column, “Medicaid pushes forward on family planning” at http://bit.ly/2clRvhG.) It capped its spring with a June 14, 2016, letter to state health officials laying out what is the closest the agency has come to comprehensive guidelines for the coverage and provision of family planning services and supplies under Medicaid.1
Although all state Medicaid programs have been required since 1972 to cover family planning services and supplies, without any patient out-of-pocket costs and free of coercion, CMS had never specified what that requirement entails exactly. In the new guidelines, CMS recommends that states cover every individual method of contraception for traditional Medicaid enrollees, as they are already required to do for people newly eligible for Medicaid under the Affordable Care Act (ACA).
It bars states and Medicaid managed care plans from imposing on family planning care a range of common cost-control tactics, including cost-sharing, step therapy, policies that restrict a change in method (such as not covering the removal of an IUD or implant), and almost all other forms of prior authorization. It also discourages inappropriate quantity limits; reiterates and reinforces confidentiality protections; reminds states and plans that they must reimburse in- and out-of-network providers in a timely manner; and lays out ways that states may help providers offer the full range of contraceptive choices, including IUDs and implants.
Earlier CMS Moves
The June 14 letter builds on several actions by CMS earlier this spring, including April 25 regulations governing the involvement of private-sector managed care plans in Medicaid and an April 19 letter to state officials making it clear that federal law prohibits them from discriminating against family planning providers, those that provide abortion care, and those that are affiliated with abortion providers.2,3
On a separate front, the Obama administration is working to respond to the U.S. Supreme Court’s May 16 order in Zubik v. Burwell, which challenged the ACA’s contraceptive coverage guarantee. The short-handed court avoided making an actual decision on the merits and, instead, sent the case — actually, seven cases, plus several more that had not officially been in front of the court yet — back to the appellate courts for further consideration.
Lower courts are being asked to help determine whether further compromise between the federal government and the objecting employers is warranted and possible. The Supreme Court had proposed such a compromise in an unusual request for supplemental briefs, after oral arguments in March.
In those briefs, petitioners insisted that contraceptive coverage be provided through a separate insurance policy, with a separate enrollment process. Those conditions seem incompatible with the seamless insurance coverage that the government and its supporters are seeking through the current contraceptive coverage guarantee and the “accommodation” the government has set up for employers with religious objections.
On July 22, several federal agencies issued a request for information on potential changes to this religious accommodation.4 The agencies asked 11 distinct questions on three topics:
- procedures that might allow religious employers to object without written self-certification, which is part of the current process;
- approaches involving separate insurance policies and separate enrollment processes;
- alternatives that might be viable for self-insured health plans.
By using the regulatory process to gather input, rather than working exclusively through the litigation process, the administration will be able to involve all interested parties, including the women whose coverage might be affected and the insurance companies that might have to administer any workarounds. The comment period ended on Sept. 20, and final regulations seem likely by January 2017.
Protect Family Planning
On the Friday before Labor Day, the Obama administration ended its summer with yet another move to protect family planning care, this time under the Title X national family planning program.5 The Office of Population Affairs (OPA), the agency that administers Title X, proposed new regulations that directly refute states’ ongoing efforts (13 times since 2011, according to OPA) to deny Title X funding from safety-net family planning providers that also provide abortions or are affiliated with providers that do so. The new regulations echo CMS’s April letter to state officials that pushed back at similar efforts in relation to Medicaid.3
These types of state restrictions commonly impact the very providers, such as Planned Parenthood health centers, most able to facilitate women’s timely access to a wide range of contraceptive services and supplies.6 That, in turn, limits access to family planning services and negatively impacts women’s health. The proposed regulations would make it a violation of federal law for states or other Title X grantees to discriminate against otherwise eligible providers solely on the basis of providers’ association with abortion, which helps to protect the integrity and capacity of the Title X network nationwide. At press time, the proposed regulations were open to public comment until Oct. 7. The administration can be expected to finalize them before President Obama leaves office in January.
- CMS. SHO # 16-008 re: Medicaid Family Planning Services and Supplies. June 14, 2016. Accessed at http://bit.ly/29Jxc87.
- CMS. SMD # 16-005 re: Clarifying “Free Choice of Provider” Requirement in Conjunction with State Authority to Take Action Against Medicaid Providers. April 19, 2016. Accessed at http://bit.ly/1MGCxQ0.
- 81 Fed Reg 27498 (May 6, 2016); accessed at http://bit.ly/1UPaZd6.
- 81 Fed Reg 47741 (July 22, 2016); accessed at http://bit.ly/2clQuGl.
- 81 Fed Reg 61639 (Sept. 7, 2016); accessed at http://bit.ly/2cr4Zar.
- Frost J, Hasstedt K. Quantifying Planned Parenthood’s critical role in meeting the need for publicly supported contraceptive care. Health Affairs Blog Sept. 8, 2016; accessed at http://bit.ly/1K4WVlL.