Wyden, Murray, Senate Democrats Urge Verma to Reject Texas Proposal to Harm Women's Health

In Letter to CMS Administrator, Lawmakers Say Approval of Texas Medicaid Waiver Would Be Unprecedented and Dangerous Step to Restrict Care for Women, Target Health Providers

Washington, D.C. – Senate Finance Committee Ranking Member Ron Wyden, D-Ore., and Senate Health, Education, Labor and Pensions (HELP) Committee Ranking Member Patty Murray, D-Wash., along with 24 Democratic senators today sent a letter to Centers for Medicare & Medicaid Services (CMS) Administrator Seema Verma urging her to reject a proposed Medicaid waiver from Texas that would restrict women’s access to family planning and other preventative care.

The Texas proposal seeks to waive Medicaid’s longstanding “freedom of choice” provision that ensures that patients can see the qualified family planning provider who they trust.

“Permitting Texas to implement the project as proposed would provide women with substandard access to family planning and other preventive care for women, fail to meet with statutory requirements, and run counter to Congress’ longstanding intent for the Medicaid program,” the senators wrote. “Texas’s waiver request is a continuation of long-standing organized efforts to undermine access to family planning providers, including Planned Parenthood, to advance ideological goals without concern for the health and well-being of the women of Texas. This proposal must be rejected.”

Senators joining Wyden and Murray on the letter: Sherrod Brown, D-Ohio, Richard Blumenthal, D-Conn., Kirsten Gillibrand, D-N.Y., Elizabeth Warren, D-Mass., Edward J. Markey, D-Mass., Jeanne Shaheen, D-N.H., Mazie K. Hirono, D-Hawaii, Maggie Hassan, D-N.H., Ben Cardin, D-Md., Tim Kaine, D-Va., Chris Van Hollen, D-Md., Tammy Duckworth D-Ill., Cory A. Booker, D-N.J., Tammy Baldwin, D-Wis., Christopher Murphy, D-Conn., Bernard Sanders, D-Vt., Kamala D. Harris, D-Calif., Catherine Cortez Masto, D-Nev., Debbie Stabenow, D-Mich., Dianne Feinstein, D-Calif., Jeff Merkley, D-Ore., Thomas R. Carper, D-Del., Bill Nelson, D-Fla., and Robert Menendez, D-N.J.

The full letter can be found here and below:

The Honorable Seema Verma

Administrator

Centers for Medicare & Medicaid Services

7500 Security Boulevard

Baltimore, MD, 21244

Dear Administrator Verma:

We are writing to express our concern regarding Texas’ proposal to seek federal funding for a Medicaid family planning demonstration project. Permitting Texas to implement the project as proposed would provide women with substandard access to family planning and other preventive care for women, fail to meet with statutory requirements, and run counter to Congress’ longstanding intent for the Medicaid program. Texas’s waiver request is a continuation of long-standing organized efforts to undermine access to family planning providers, including Planned Parenthood, to advance ideological goals without concern for the health and well-being of the women of Texas. This proposal must be rejected.

Texas started a Medicaid family planning demonstration in 2007. The project improved access to contraception, and, as a result, reducing unintended pregnancies and Medicaid-funded births. As the demonstration period expired, Texas asked the Secretary of the Department of Health and Human Services to renew the project with a troubling restriction – a waiver of Medicaid’s longstanding “freedom of choice” provision that ensures that patients can see the qualified family planning provider who they trust. The Centers for Medicare & Medicaid Services (CMS) declined to waive this crucial patient protection and, rather than comply with federal requirements for Medicaid funding, Texas implemented a solely state-funded family planning project in 2013 that excluded a number of qualified providers who were deemed to perform or “promote” abortion services or affiliate with providers who do so.

This decision had serious negative consequences for Texan women’s access to health services. Although research has shown long-acting reversible contraceptives (LARCs) to be the most effective method of reversible contraception, after Texas excluded qualified family planning providers from its project, LARC use among beneficiaries declined by more than one-third. In addition, the rate of Medicaid-funded births increased. As of 2014, 55% of women in Texas reported at least one barrier to accessing reproductive health services, including family planning services and cervical cancer screening. Maternal mortality rates in Texas also doubled between 2011 and 2014, a time frame that largely coincides with the state eliminating access to Planned Parenthood. Pregnancy-related deaths were even higher among women of color, further exacerbating stark health disparities in the state.

Now, rather than addressing the problems that have arisen from restricting beneficiaries’ choice of provider, Texas is again seeking federal Medicaid funding to operate its family planning project with a waiver of the longstanding freedom of choice requirement. The state’s request is intended to single out providers who provide or promote—or are affiliated with those who provide or promote—abortion services as part of their scope of practice, with the ultimate goal of making legal abortion services unavailable in Texas. It is also clear that the program will continue to result in women losing access to critical care, which in turn will result in high rates of unintended pregnancy and maternal mortality.

The Secretary has never granted a waiver for a program that has already proven to be ineffective, nor has the Secretary granted a waiver of freedom of choice for family planning services for any purpose, much less one that purposefully targets certain qualified providers. Protecting the patient-provider relationship in this manner is consistent with Congressional intent and statutory requirements that have been in place for over thirty years.

Section 1115 of the Social Security Act provides states flexibility to explore new approaches to further health care access for low-income individuals and families. Texas has already demonstrated that its program will not serve women in its state. Approving this project as proposed would be a clear violation of federal law.

In addition, the freedom of choice provision in section 1902(a)(23) of the Social Security Act gives Medicaid enrollees the right to obtain medical services “from any institution, agency, community pharmacy, or person, qualified to perform the service or services required . . . who undertakes to provide . . . such services.” Recognizing the sensitive and valuable nature of family planning services, Congress explicitly requires states to retain freedom of choice for family planning services and supplies, even when implementing managed care programs.

Moreover, under section 1902(a)(23), states cannot exclude providers based on criteria other than the state’s established provider qualification standards. These standards must be “…related to the fitness of the provider to perform covered medical services—i.e., its capability to perform the required services in a professionally competent, safe, legal, and ethical manner—or the ability of the provider to appropriately bill for those services.” As clarified in April 2016 guidance issued by CMS, the provider qualification standards must be applied in an evenhanded manner and may not target a provider or group of providers for reasons unrelated to their ability to provide or bill for the Medicaid service. CMS further clarified that states cannot exclude providers from participation in their Medicaid programs because they provide the full spectrum of gynecological and obstetric care, including abortion services, as part of their scope of practice.

Texas’s 1115 demonstration proposal to exclude qualified family planning providers from the Medicaid program while receiving federal Medicaid funding for such services runs directly counter to both the state’s stated objective -- increasing access to family planning and other preventive care for women -- as well as the purpose and statutory requirements of Section 1115 waivers and the Congressional intent underlying them: to ensure family planning access for Medicaid enrollees. There is no question that excluding these providers, namely Planned Parenthood, from the demonstration project reduced access to family planning services for enrollees. Thus, the family planning project is not approvable as proposed. We urge your swift rejection of this request that clearly violates federal law and Congressional intent

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