In June, the Bush administration issued final federal regulations implementing a set of provisions in the sweeping Balanced Budget Act of 1997 that constituted a virtual makeover of the joint federal-state Medicaid program for the managed care era. At the heart of the law's Medicaid provisions was a basic bargain between the federal government and the states: The states would have unfettered authority to require Medicaid recipients to enroll in managed care plans, in return for which they would abide by a series of federal requirements governing their Medicaid managed care efforts. Although regulations giving direction to the states as they moved to implement the measure were promulgated by the Clinton administration on its last full day in office, they were put on hold and subsequently revoked by the incoming Bush administration, which proposed new rules of its own. These rules, now finalized after public comment and set to take effect in August, have serious implications for the ability of Medicaid managed care enrollees to access "family planning services and supplies"—required services under the federal Medicaid statute to which all recipients are legally entitled.
The rules raise three key issues. The first involves the extent to which women in Medicaid managed care plans have direct access—that is, without having to seek permission from a primary care provider—to a separate provider for gynecologic care. Although the statute does not address this issue directly, the Clinton rules provided such access for "routine and preventive" women's health care. The Bush rules, as proposed, also included this policy. Advocates had urged that the final rules state specifically that family planning is included in a defined set of "routine and preventive" services for which direct access is to be permitted. But while the final rules do address the range of providers to whom women may have direct access (and specifically include non-physicians such as nurse midwives and nurse practitioners), they do not contain any definition of the actual services for which direct access is to be permitted, leaving that decision to the individual states.
The second issue involves the information that the law requires be provided to managed care enrollees, either by the state or by the plans themselves, about both the services that are covered and how to access them. This is particularly important because, under the law, Medicaid enrollees may obtain family planning services from a provider of their choice inside or outside of their plan. The Clinton rules had required that enrollees be given information about their coverage at three key points: when they are choosing among plans, when they first enroll in a plan and annually thereafter. The Bush rules delete the last requirement, instead mandating that plans need annually inform enrollees only that they have a right to request information about their coverage.
The final issue arises from an ongoing problem with Medicaid managed care where family planning is concerned: the fact that Medicaid enrollees are legally entitled to obtain family planning services and supplies, but some managed care plans in which women are enrolled refuse to provide them. This problem was seriously exacerbated by a provision included in the Balanced Budget Act that now also allows managed care plans to refuse to cover a "counseling or referral service" to which they object on religious or moral grounds. While it remains the legal obligation of each state to ensure enrollees' access to covered services, the question is how to connect a woman in a managed care plan that refuses to provide family planning care, or even to refer for it, to the state that must ensure that she has access to it. While the Clinton rules would have narrowed the gap, advocates had urged the Bush administration to close it entirely. Their proposal was simple: Require states to establish a toll-free hot line through which enrollees could learn where to obtain counseling about a service or the service itself, and require plans refusing even to provide information about a service to which they object merely to give enrollees the state hot line number when they are asked about excluded care. But though the Bush administration acknowledged the request for a hot line, it declined to include the recommendation in the final rules, potentially leaving women without critical information about contraceptive care at the moment they need it the most.
In each of these instances, federal rule makers had the opportunity to include provisions that could have facilitated Medicaid managed care enrollees' access to family planning services. And in each of these instances, they declined. Accordingly, the focus now switches to the states. Advocates will have to work in 50 different arenas to ensure that the policies adopted for each individual state Medicaid program will provide enrollees the access to family planning services and supplies to which they are legally entitled.