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Montana Health department proposes new requirements for Medicaid abortion coverage

An administrative rule change would mandate pre-approval for Medicaid coverage to prove 'medical necessity' for abortions.

This week MTFP obtained a copy of a proposed rule change from the Department of Public Health and Human Services that would add layers of red tape for low-income Montanans seeking Medicaid coverage for abortions and prohibit nurse practitioners and physician assistants from billing Medicaid for those services. By Friday, it was posted publicly along with information about its upcoming Jan. 12 hearing.

You might be scratching your head - doesn't something called the Hyde Amendment prohibit the use of federal funds for most abortions? That's correct. But Montana is one of 16 states that requires its own Medicaid programs - i.e., state funds - to cover all or most abortions if the procedures are deemed "medically necessary." That's been the policy here ever since a 1995 court ruling in Jeannette R. v Ellery. 

Starting in 2021, Republican lawmakers and the Gianforte administration have been investigating how abortion providers are applying that legal guidance. Earlier this year, a review commissioned by the health department found that the paperwork providers are required to submit for Medicaid coverage "lacks sufficient information to support medical necessity." That finding led the department "to reasonably believe that the Medicaid program is paying for abortions that are not actually medically necessary," according to the explanation of the new proposed rule.

If adopted, the new regulation would require pre-authorization to seek Medicaid coverage for abortion, requiring providers to submit a long list of information about their client's medical history (including the "number of times the patient has been pregnant and number of times she has had a live birth"). The rule would also allow only physicians to bill for Medicaid coverage of abortions, not other medical practitioners currently providing the same procedures. The department said that change is designed to mirror federal regulations and will help the state "protect the integrity of the Medicaid program" and "protect the health and safety of Medicaid beneficiaries."

Planned Parenthood of Montana CEO and President Martha Fuller said in a Thursday phone interview that the new rule would "force people to have abortion later in pregnancy" by adding hurdles to a time-sensitive procedure.

"It's another attempt to keep people from accessing those services," Fuller said.

In a statement Friday, health department Director Charlie Brereton said the state agency "must ensure that abortions paid for by Montana taxpayers under Medicaid are truly medically necessary, in accordance with the law."

"We welcome comment on the proposed rule and look forward to further protecting the integrity of our Medicaid program through its finalization and implementation," Brereton said.

The department will hold a public hearing via Zoom to discuss the rule changes and take public comment on Jan. 12 at 1:00 pm.

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