DPHHS issues rule change for Medicaid abortions effective May 1

By: - April 20, 2023 7:12 pm

Montana Department of Public Health and Human Services (Photo by Matt Volz | Kaiser Health News).

Abortion providers in Montana will be required to submit additional paperwork to the state for Medicaid-funded abortions starting May 1.

That’s according to a new rule being instituted by the Montana Department of Public Health and Human Services that was put out for public comment in December.

Abortion providers will have to submit a request for prior authorization along with a signed physician certification form requiring a physical exam. All Medicaid funded abortions will also need to be conducted by a physician, excluding nurse practitioners.

DPHHS Director Charles Brereton and Rule Reviewer Paula M. Stannard signed off on the rule, which was certified to the Secretary of State on April 18.

This new rule comes as abortion legislation is flying through the legislature with a Republican supermajority.

“The Gianforte Administration’s attempt to restrict Montana Medicaid’s coverage of abortion care is unacceptable,” said Executive Director of Blue Mountain Clinic Nicole Smith in a statement Wednesday. “This rule change goes against the values of Montanans, it ignores decades of research about the harms of denying access to essential healthcare, and it undermines Montanan’s constitutionally protected right to make personal healthcare decisions.”

Blue Mountain provided the notice to the Daily Montanan. It is expected to be posted on the DPHHS website April 28.

CEO of Planned Parenthood of Montana, Martha Fuller, said access to Medicaid coverage for abortion, with minimal barriers, is critical for Montanans with low incomes.

“The amendment to the Medicaid rules would exacerbate economic distress and harm Montana families by forcing Medicaid recipients to delay care, or carry pregnancies to term against their will,” Fuller said in a statement Wednesday. “DPHHS’ responses to the comments do not allay our concerns about the impact of the rule change, nor do they reflect an understanding of the barriers patients with low incomes already face in receiving timely abortion care.”

Medicaid covers abortion care under three specific conditions outlined in the Hyde Amendment: If abortion would be necessary to save the life of the mother, the pregnancy was the result of rape or incest or if the pregnancy was deemed medically necessary.

Abortion is protected in Montana under the state Supreme Court decision Armstrong v. State.

In the notice of amendment, DPHHS responded to complaints about the rule change, which ranged from concerns about the department overstepping with the new records requirements, to the physical exam requirement going against FDA guidelines and best practices.

The department acknowledged the concern that health care provider records sufficiently document when and why abortions are medically necessary.

“However, none of that documentation is currently submitted to the Medicaid program, so that the program may ensure that it only pays for medically necessary abortion services,” the department said.

In response to concerns about the exam requirement, the department said it recognizes that FDA standards changed to allow telehealth services for medication abortion, but says those guidelines are being litigated.

The department said the physical exam “will ensure that the safety and well-being of the female patient – as a Medicaid beneficiary – has been considered.”

Smith said in her statement that this rule limits abortion access for low-income Montanans and called that response from DPHHS “extremely malicious.”

The department responded to similar concerns saying prior authorization and prepayment review requirements were for providers and not Medicaid beneficiaries.

“Forcing someone to give birth against their will is unconscionable and Montanans will not stand for this government intrusion into our private lives and our personal decisions,” Smith said.

Progress of abortion legislation

House Bill 544: Would implement in statute what much of the DPHHS rule is trying to do, creating extra requirements for Medicaid recipients for medically necessary abortions, was heard in Senate Finance and Claims on Wednesday.

House Bill 575: 24-week abortion ban passed the House on third reading on Thursday after returning with amendments from the Senate. The bill goes next to Gov. Greg Gianforte’s desk.

House Bill 625: Places in statute the language that was included in LR-131 ballot initiative that failed last fall, which would have required doctors to save any infant born alive after an abortion later in pregnancy. The bill, which is also being sent to Gianforte’s desk, added language to say parents or guardians can turn down medical treatment under certain circumstances when a baby is not expected to survive, a major critique from the movement against LR-131 last fall.

House Bill 937: Would add licensure requirements for abortion clinics and was passed on third reading Thursday in the Senate.

House Bill 862: Would prohibit public funds for abortions passed second reading in the Senate and had a hearing in Finance and Claims on Wednesday.

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Nicole Girten
Nicole Girten

Nicole Girten is a reporter for the Daily Montanan. She previously worked at the Great Falls Tribune as a government watchdog reporter. She holds a degree from Florida State University and a Master of Science from the Medill School of Journalism at Northwestern University.