Proposed new rule may impact family planning
By Cynthia Dailard
Senior Public Policy Associate
The Alan Guttmacher Institute
Washington, DC
In August, the Bush administration proposed a new rule governing Medicaid managed care. This proposed rule replaces a regulation issued on the final day of the Clinton administration. It is designed to implement changes to the Medicaid statute made by the Balanced Budget Act of 1997, which established the first uniform national standards for Medicaid managed care.
The proposed rule responds to concerns largely raised by the Washington, DC-based National Governors Association and the insurance industry and is thus designed to promote greater state flexibility and reduces demands on managed care plan. Although most of the differences between the Clinton regulation and the proposed rule appear to be numerous small word changes and deletions, these edits may ultimately have serious implications for Medicaid enrollees’ access to family planning. At press time, the administration had said that it hoped to finalize its proposal early in 2002.
In accordance with Medicaid statutory requirements, the proposed rule requires plans to assure the state that they maintain a network of providers sufficient to meet the anticipated needs of their enrollees and that the network includes the number and types of providers necessary to furnish required services and in a timely manner. If a plan cannot provide timely access to covered services to a particular enrollee within its network, it must cover those services from an out-of-network provider. Enrollees also would have the right to disenroll from a plan at any time if it fails to provide them with adequate access to covered services.
For almost three decades, the Medicaid statute has required states to cover family planning services. Along these lines, the proposed rule reaffirms long-standing Medicaid statutory protections that allow all managed care enrollees to obtain family planning services from the provider of their choice (even an out-of-network provider) and prohibits plans or states from charging copayments or other fees for Medicaid covered family planning services.
Like the Clinton regulation, the proposed rule would allow women to directly access an in-network provider for "routine and preventive health care services" without having first to obtain a referral from their primary care provider. However, it is unclear from the proposed rule whether family planning services fall under this category.
What may be undermined
The Medicaid statute requires enrollees to receive fairly extensive information describing their health care benefits. This information includes: the scope of the benefits covered under the plan; the names and locations of providers; procedures for obtaining covered services; how to access services that are covered under the state’s Medicaid program but not available through the enrollee’s plan; and any cost-sharing requirements. The proposed rule further states that enrollees must be given information on "the extent to which, and how, enrollees may obtain benefits, including family planning services, from out-of-network providers."
While the earlier regulation would have required plans to provide that information to enrollees on an annual basis, the proposed rule only requires plans to notify enrollees each year that they have a right to request that information. Thus, an enrollee who does not regularly make such requests may find that he or she doesn’t have the most up-to-date information at a time of need.
Finally, an important change involves the so-called "conscience clause." While Medicaid enrollees are entitled to full information about their treatment options and access to all Medicaid-covered services, the statute allows plans to refuse "to provide, reimburse for, or provide coverage of, a counseling or referral services if the organization objects . . . on moral or religious grounds." Thus, a woman may be legally entitled to receive family planning services but may be denied information about where she can get the services out-of-plan.
The Clinton regulation also required a plan that declined to cover a particular service to tell enrollees that they could obtain information from the state about how to access that service. The proposed rule, however, would remove that requirement. Instead, plans would be allowed to instruct providers to say nothing other than the simple fact that the service is not covered under the plan. As a result, the proposed rule has the potential to deny patients critical information about how to access family planning services.
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