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Abortion review committee added to state budget bill
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House Bill 2

Abortion review committee added to state budget bill

Sen. Ryan Osmundson, R-Buffalo

Sen. Ryan Osmundson, R-Buffalo

Montana State News Bureau Chief Holly Michels summarizes the day's news from the Montana Legislative session for April 28, 2021.

Republican lawmakers advanced a proposal Tuesday to create a committee to review payments for abortion services for women covered by Medicaid.

The proposal came as an amendment to House Bill 2, the state budget bill. The committee would cost $90,000 over the two-year budget.

The is the second attempt by lawmakers to create a panel to review abortions to see if the provider should be reimbursed by the federal insurance program. A previous attempt died on a 9-10 vote in the Senate Finance and Claims Committee, with a handful of Republicans joining all Democrats in opposition.

That earlier amendment would have created a panel of three physicians, with the governor, Senate president and House speaker each appointing one, to determine if abortions for women insured by Medicaid were reimbursable. To qualify, the abortion would have to be deemed medically necessary, necessary to save the life of the mother or because the pregnancy resulted from rape or incest.

The lack of detail in the amendment to HB 2 on Tuesday was one of the objections raised by Sen. Janet Ellis, D-Helena.

"It seems like this panel could judge whether somebody has been raped, if there's been a case of incest, or if a doctor did do an abortion to save the life of a woman," Ellis said. "Those are legal activities and it just doesn't make any sense."

Sen. Ryan Osmundson, a Republican from Buffalo who chairs the Senate Finance and Clams Committee, countered that HB 2 could not include any policy proposals to clarify what the committee would be allowed to review. That proposal could come as an amendment to a companion bill before the expected end of the session later this week.

The federal Hyde Amendment prohibits federal funding to pay for abortion services except to save the life of the woman or if the pregnancy is the result of incest or rape. 

In Montana, however, the courts have found in Jeannette R. v. Ellery the state Constitution requires the state's Medicaid program to cover abortions and leaves the decision of if an abortion is medically necessary up to the patient's doctor.

Courts have also found that the state's Medicaid program cannot treat abortion differently than childbirth when it comes to determine if a procedure is covered.

Rep. Llew Jones, a Republican from Conrad who chairs the House Appropriations Committee, pointed to that decision and said that it's made a "nebulous" situation that needs to be reviewed in Montana.

In opposition to the amendment, Rep. Mary Caferro, a Helena Democrat, said the committee could ultimately put women in the position of experiencing more trauma if they must prove they were raped or the victim of incest.

"It re-traumatizes the victim," Caferro said.

Martha Stahl, the president and chief executive officer of Planned Parenthood of Montana and Planned Parenthood Advocates of Montana, said Tuesday that the abortion review committee is the first she's seen proposed anywhere in the country.

Stahl said she had concerns about barriers the bill would create for access to care for patients and also raised concerns it could be unconstitutional.

“It puts providers in a very tough situation both in terms of their own practice but also with their patients,” Stahl said. “ … It’s clearly at odds with established case law.”

A day prior, Republican Gov. Greg Gianforte signed three bills meant to restrict access to abortion in the state by banning abortions after 20 weeks gestational age, requiring a woman be informed of the option to view an ultrasound before an abortion and requiring informed consent before a drug-induced abortion.

The change to HB 2 came as part of broad amendments to the state's main budget bill, which will spend more than $12 billion over the two-year biennium.

Medicaid expansion coverage

Another intense debate was an amendment that adds legislative intent for the state health department to end continuous eligibility on the state's Medicaid expansion program. 

Caferro argued the change is punitive to people who are insured through the program and that only a very small amount of people might be covered incorrectly.

Jones said he's heard people in his district work the system to get coverage when they shouldn't because they've made more than the income limit; however, Caferro pointed out people are required to report hikes in pay.

On March 17, the state Department of Public Health and Human Services sent a letter to the Centers for Medicare and Medicaid saying it intended to end continuous eligibility when the federal health emergency enacted under COVID-19 expiries.

DPHHS asked CMS to confirm if notifying the federal agency was sufficient to end the provision; a spokesperson for the department said Tuesday the federal government hadn't responded yet.

Continuous eligibility means people who are qualified for the program remain qualified for a year. It was put into place to prevent what's called churn, or when people move from being qualified to not and then back to qualified. That happens because of fluctuation in pay from things like overtime hours or seasonal work or change in household composition from moving.

Because the federal government assumes some cost savings from not more frequently checking eligibility and not having that churn, it gives states with continuous eligibility a lower federal match, paying 89% of the program costs instead of 90%. The state is expected to save $7 million in state funds by ending the provision.

Additional amendments

Other changes made to the bill include transferring the Comprehensive School and Community Treatment program to the Office of Public Instruction.

That program provides Medicaid reimbursement for mental health services and outpatient treatment for school-aged children through partnerships between school districts and community health providers. Services can be provided either in the school or in the community.

Earlier in the session the program came under scrutiny when the federal government said Montana's funding mechanism wasn't allowed. The health department backfilled the program with general fund dollars. Some lawmakers on the committee objected to that, saying that spending decision should have been left to the Legislature, not the department.

The program now has stopgap funding and will be under OPI moving forward.

Another amendment removed $7.5 million in state funding and a corresponding $13.9 million in federal money for a provider rate increase for Medicaid providers working with the elderly and disabled. Jones indicated Tuesday that further action on provider rates would happen before the end of the session.

Legislators also approved putting $1 million toward opening a tourism and business development office in Taiwan, paid for from the Big Sky Economic Development Trust Fund, which is filled with coal severance tax money.

There's also $100,000 for the Secretary of State to defend itself against lawsuits filed over bills passed this session. Already the Montana Democratic Party has sued over two bills that end same-day voter registration and tighten voter identification requirements.

Caferro voted against the amendment, saying the Legislature should be more careful in bills it passes to avoid getting sued.

The budget bill now also includes $285,500 for funding an interim investigation GOP lawmakers are leading into "judicial accountability and transparency." Republicans have formed a committee to investigate judges after a court case revealed members of the judiciary were weighing in on legislation via email polling.

Ellis opposed the amendment, saying it was set up to "impact the reputation of the judiciary," but it passed on a party-line vote with GOP support.

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