On July 6, 2022, TCF director of health care reform and senior fellow Jamila Taylor submitted the following public comment to the U.S. Department of Health and Human Services (HHS) in response to a Section 1115 demonstration application by the state of Texas. In her comment, Dr. Taylor highlights how the proposed extension falls short of what the evidence shows pregnant people need and describes how its attempt to restrict eligibility for this extension of coverage is a weaponization of the Medicaid program against pregnant people after the overturning of the federal right to abortion established by Roe v. Wade.
I am pleased to provide comments to the U.S. Department of Health and Human Services’ (HHS) request for public input on this 1115 demonstration waiver request.
My name is Dr. Jamila K. Taylor and I serve as the director of health care reform and senior fellow at The Century Foundation (a progressive independent think tank), where I lead the organization’s work to build on the Affordable Care Act and develop the next generation of health reform to achieve high-quality, affordable, and universal coverage in America. I also work on issues related to reproductive rights and justice, focusing on the structural barriers to access to health care, racial and gender disparities in health outcomes, and the intersections between health care and economic justice. Throughout my twenty-plus-year career, I have also championed the health and rights of women of color and other marginalized communities both in the United States and around the world, promoting policies that ensure access to reproductive and maternal health care.
While I support the goal of extending postpartum Medicaid coverage in Texas, I strongly oppose this waiver. The proposed extension falls short of the state plan amendment option for a full year extension provided by the American Rescue Plan Act, and attempts to restrict eligibility for this extension based on pregnancy outcomes are extremely concerning and counter to the goals of the Medicaid program. The proposed extension also drastically undermines broader efforts to advance maternal health equity.
Postpartum Coverage Should Be Extended to a Full Year through a State Plan Amendment
Under its waiver application, Texas would extend postpartum Medicaid coverage to six months. While these additional four months of coverage would certainly be better for postpartum individuals than the current sixty days, extending coverage to a full year is the ideal and the most evidence-based approach.
Extending postpartum Medicaid to a full year has well-documented benefits, as reflected in my report published by The Century Foundation, Promoting Better Maternal Health Outcomes by Closing the Medicaid Postpartum Coverage Gap. From avoiding insurance churn to promoting postpartum care coordination, extending postpartum coverage provides a crucial source of stability during what can otherwise be an incredibly sensitive period for new mothers. This extended period of Medicaid coverage also ensures that low-income families avoid the hefty out-of-pocket costs that they may face if uninsured or underinsured through a source other than Medicaid.
A significant percentage of postpartum complications occur up to a full year after a pregnancy ends. According to the most recent data published by the Centers for Disease Control and Prevention (CDC), nearly 12 percent of pregnancy-related deaths occurred between 43 and 365 days after delivery. Allowing Texas to extend this coverage for only an additional four months ignores the reality of this evidence and the importance of supporting pregnant people throughout the postpartum period when they are most at risk for negative health outcomes.
Extending postpartum coverage to a full year would also further the Biden administration’s commitment to advancing health equity in the Medicaid and CHIP programs. Pregnant Medicaid enrollees are disproportionately likely to be Black, Hispanic, or American Indian/Alaskan Native people. The United States faces a maternal mortality crisis driven by the experience of Black women, who face maternal mortality rates nearly three times higher than their white counterparts—and the overwhelming majority of these deaths are preventable. While insurance coverage alone will not end systemic racism in the U.S. healthcare system, extending Medicaid coverage would ensure that a lack of coverage will not serve as another barrier to the care needed to prevent these deaths.
The American Rescue Plan Act created a state plan amendment (SPA) option for states to extend postpartum Medicaid coverage to a full year. Texas should consider extending coverage through this SPA option, rather than an 1115 waiver. In addition to the demonstrable impact that the yearlong coverage period will have on pregnant people and their children, extending coverage through a SPA is also a more efficient process. Rather than requiring the “lengthy negotiation process” with the Centers for Medicare and Medicaid Services (CMS) that is required of 1115 waivers, SPAs simply require advance notice in the state and a ninety-day period for CMS to ensure that the amendment complies with federal requirements. If CMS does not request more information or deny the SPA application within these ninety days, an amendment is automatically approved. Taking this approach would connect low-income pregnant Texans with this needed coverage much more quickly.
Extending this coverage through a SPA would also ensure that postpartum Medicaid beneficiaries have access to a more robust set of benefits as well. Under existing law, states are permitted to cover a more narrow set of pregnancy-related benefits for Medicaid beneficiaries who are eligible due to pregnancy. Requiring Texas to extend this coverage through the SPA option created under the American Rescue Plan Act, however, would require the state to provide full scope Medicaid benefits. This would ensure that beneficiaries have their full health needs covered, rather than only those deemed “pregnancy-related.”
Medicaid Should Not Be Used to Police Pregnancy Outcomes
In addition to ignoring the evidence on how to best improve postpartum Medicaid coverage, as well as the improved health outcomes associated with it, this waiver application contains an extremely troubling proposal to restrict eligibility for this extended coverage. Rather than extending coverage to all pregnant and postpartum Medicaid enrollees, the waiver application seeks to restrict this coverage only to people whose pregnancy ends in “delivery or involuntary miscarriage.” This is a harmful approach for several reasons, outlined below.
Many states have histories of weaponizing pregnancy outcomes against people who have miscarried, including Texas. Earlier this year, the Starr County Sheriff Department arrested Lizelle Herrera and charged her with murder for a self-induced abortion. Mississippi and Indiana have both charged women who experienced miscarriages and stillbirths with criminal charges as well, and in the case of Purvi Patel, even convicted them. . While these charges were eventually dropped and Patel’s conviction was overturned, these types of cases will only become more common under a policy such as the one Texas is proposing. Women, especially women of color, will increasingly have their pregnancies scrutinized and weaponized against them.
This policing of pregnancy outcomes will also likely have a chilling effect on pregnant people seeking care. If a person believes that their pregnancy may be used as a reason to press charges against them, they will be less likely to pursue needed pregnancy care, especially in instances where they need it most. In the case of suspected self-induction of abortion with FDA-approved medications, which cannot in most cases be medically discerned from miscarriage, using pregnancy outcomes as contingency for Medicaid coverage is particularly concerning.
Since the U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, the Texas trigger law banning all abortion went into effect briefly before it was halted by a temporary restraining order—but the state law banning abortions after six weeks of pregnancy remains in effect, which continues to make abortion care inaccessible for the vast majority of those who need it. Functionally, abortion will likely not be legal in Texas by the time this waiver would be approved. The use of pregnancy outcomes to determine eligibility thus may encourage involvement of law enforcement in health care, putting pregnant people at risk legally, in addition to potentially restricting coverage of necessary health care. This attempt to restrict eligibility for extended postpartum Medicaid coverage to exclude pregnant people who go elsewhere for an abortion is an additional level of cruelty on top of their existing state laws and is reason enough to deny this waiver.
It is also important to note that this attempt to surveil pregnancy outcomes likely violates federal law. The section of law that establishes the Medicaid program also requires states to develop safeguards that protect information about applicants and beneficiaries from being used or disclosed for purposes that are not “directly connected with the administration of the plan.” These protections have previously been used to prohibit states from weaponizing the Medicaid program as Texas is attempting to do in this waiver. For example, during the Clinton administration, HHS released guidance clarifying that releasing information to immigration agencies is not related to the administration of a state Medicaid plan. The same is true for abortion care, and these attempts to use protected information would violate federal law protecting Medicaid patient privacy.
Texas Refusing to Expand Medicaid Undermines Postpartum Extension
Texas is one of twelve states that still has not expanded Medicaid under the Affordable Care Act. While the state does allow for pregnant people with incomes up to 200 percent of the federal poverty limit to enroll in Medicaid, eligibility is otherwise extremely restricted. Once a pregnant person is no longer eligible for Medicaid via pregnancy, the income cap for eligibility drops to only 17 percent—barely more than $2,,300 a year in 2022. Childless adults are wholly ineligible if they are not disabled or elderly.
These extremely restrictive levels of eligibility mean that low-income people who still have health problems related to their pregnancy would be kicked out of the Medicaid program prematurely. For example, a single mother who makes the Texas minimum wage of $7.25 an hour and works thirty hours a week would be ineligible for Medicaid after the postpartum extension ends, despite the fact that many postpartum complications occur more than six months after a pregnancy ends.
These restrictive Medicaid eligibility criteria would also disproportionately harm pregnant people who have abortions out of state. A pregnant person who discovers their pregnancy is nonviable later in pregnancy and has an abortion would only be eligible for Medicaid for sixty days under this waiver, despite the reality that their pregnancy would likely still impact their health after these sixty days. People seeking abortions deserve the full postpartum benefit for a full year after their pregnancy ends just as people whose pregnancies end in delivery or involuntary miscarriage.
CMS Should Require Texas to Fully Support All Postpartum Medicaid Enrollees
CMS should deny this waiver for the reasons outlined above. Allowing Texas to implement a partial extension of postpartum Medicaid coverage with these restrictions that are not evidence-based would do nothing to promote maternal health equity, would undermine the goals of the Medicaid program, and would deny coverage to many postpartum people. Either the insufficient time period of this proposed extension or the problematic restriction of eligibility to certain pregnancy outcomes would be reason enough to deny this waiver on their own merits, and the combination of these harmful policies makes an even stronger case to deny it. Approving this waiver could also encourage other states to seek to propose similarly restrictive waivers, rather than pursuing the evidence-based, year-long SPA option created by the American Rescue Plan Act.
Dr. Jamila Taylor
Director of Health Care Reform and Senior Fellow