Despite this clear prohibition, under the executive order, the Centers for Medicare and Medicaid Services will likely be pressed to see how far the secretary of health and human services can use his authority under Section 1115 demonstrations to waive certain provisions of the law to achieve the order’s goals.
Using Medicaid to pay for traveling to medical care is not new. For example, a Medicaid enrollee that lives in a rural county in State A may already cross over state lines to a larger city in State B to receive medical care.
Medicaid also requires the federal government and states share in the cost of providing “nonemergency transportation” to medically necessary services covered under a state’s Medicaid plan. This can mean Medicaid may, under individual circumstances, pay for fuel, lodging, and meals for enrollees, including for family members’ overnight stays.
However, coverage for out-of-state travel is not automatic. The Medicaid agency typically requires documentation that the service cannot be rendered by a provider enrolled in the patient’s home state. Moreover, the out-of-state provider must become enrolled in the originating state’s Medicaid program.
The first avenue—and obstacle—the Centers for Medicare and Medicaid Services will likely be pressed to consider with this new executive order is who would cover the costs.
As previously noted, under Medicaid, the federal government and the state share in the costs. Does the administration envision the federal government assuming the full cost of providing transportation services? The secretary’s waiver authority has never been found to permit the federal government to assume 100 percent of funding.
Hitting a dead end on full federal funding, the agency might consider ways to split the costs with the states. Under this scenario, the Centers for Medicare and Medicaid Services would have to consider which state would share in the cost—the state of origin or the state to which an individual traveled?
During Hurricanes Katrina and Rita, the Centers for Medicare and Medicaid Services used its authority to waive certain requirements as thousands of Medicaid enrollees left Louisiana and spread to more than 30 states. In those instances, the agency held Louisiana responsible for the nonfederal share of the costs.
The second avenue—and obstacle—the Centers for Medicare and Medicaid Services might be pressed to consider are ways to circumvent the limitations by detaching funding from the individual Medicaid enrollee and instead directing the payments to the service provider, such as a transportation service.
Here too, however, even in those states that have received waivers to use Medicaid funding for activities that are not attached to an individual Medicaid enrollee, such as providing funding directly to hospitals, the Hyde Amendment applies to those federal funds as well, prohibiting their use for abortion-related services.
Thus, despite the anticipation of the executive order, the Centers for Medicare and Medicaid Services will likely report back that states wanting to expand access to abortion for women enrolled in Medicaid outside of their state can only do so by using their own state dollars with no federal match.