DEPARTMENT OF HEALTH & HUMAN SERVICES
Health Care Financing Administration
Center for Medicaid and State Operations
7500 Security Boulevard
Baltimore, MD 21244-1850
February 12, 1998
Dear State Medicaid Director:
The purpose of this letter is to notify you about a recent congressionally enacted revision to the "HydeAmendment" which affects the Medicaid program and to tell you how this revision in the law is to beimplemented.
Effective November 13, 1997, as part of the Department of Labor, Health and Human Services, and Educationand Related Agencies Appropriations Act, 1998, Public Law Number 105-78 (1997), Congress passed arevision of the Hyde Amendment pertaining to Federal funding of abortions under the Medicaid program. As
enacted in section 509, the provision states:(a) None of the funds appropriated under this Act shall be expended for any abortion.
(b) None of the funds appropriated under this Act shall be expended for health benefits coverage that includes
coverage of abortion.
(c) The term health benefits coverage' means the package of services covered by a managed care provider ororganization pursuant to a contract or other arrangement.
Section 510 continues as follows:(a) The limitations established in the preceding section shall not apply to an abortion-(1) if the pregnancy is the result of an act of rape or incest; or(2) In the case where a woman suffers from a physical disorder, physical injury, or physical illness, including alife-endangering physical condition caused by or arising from the pregnancy itself that would, as certified by aphysician place the woman in danger of death unless an abortion is performed.
(b) Nothing in the preceding section shall be construed as prohibiting the expenditure by a State, locality,entity, or private person of State, local, or private funds (other than a State's or locality's contribution ofMedicaid matching funds).
(c) Nothing in the preceding section shall be construed as restricting the ability of any managed care provider
from offering abortion coverage or the ability of a State or locality to contract separately with such a provider
for such coverage with State funds (other than a State's or locality's contribution of Medicaid matching funds).
Current regulations at 42 CFR 441.203 and 441.206 require that before Federal financial participation (FFP) canbe made available, the State must obtain a signed physician's certification that, based on the professional
judgment of the physician, the abortion was necessary to save the life of the mother. Because the language ofthe current Hyde Amendment differs from its predecessors (by requiring that the abortion be necessary due to aphysical disorder, injury, or illness, including a life-endangering physical condition caused by or arising fromthe pregnancy itself, that would place the woman in danger of death unless an abortion is performed) the State
must change the wording of the physician's certification to comport with the current statutory language.
As with the language in effect since October 1, 1993, the revised Hyde Amendment provides for funding forabortions if the pregnancy is the result of an act of rape or incest. As discussed in my December 28, 1993 letter,
all abortions covered by the Hyde Amendment, including those abortions related to rape or incest, are medicallynecessary services and are required to be provided by states participating in the Medicaid program. States maycontinue to impose reasonable reporting or documentation requirements on recipients or providers as may benecessary to assure them that an abortion was for the purpose of terminating a pregnancy caused by an act ofrape or incest. However, those reporting or documentation requirements may not serve to deny or impede
coverage for abortions. To insure that reporting requirements do not prevent or impede coverage for thesecovered abortions, any such reporting requirements must be waived and the procedure considered being
reimbursable if the treating physician certifies that in his or her professional opinion, the patient was unable, forphysical or psychological reasons, to comply with the requirements.
The new Hyde Amendment language precludes payment for any "health benefits coverage" that includes
abortions other than those specifically permitted by the terms of the Hyde Amendment. Therefore, a managed
care provider or organization that provides abortions in addition to those reimbursed under the Hyde
Amendment pursuant to a contract or other arrangement with the Medicaid agency are not eligible for any
Federal funding for any of the services covered by that contract or arrangement. If a state wishes to reimburse
managed care providers or organizations to provide additional abortions, it must do so under a separate contract
or arrangement using monies unrelated to Federal, state or local Medicaid matching dollars. However, thisshould not be construed as restricting the ability of any managed care provider to offer abortion coverage or theability of a State or locality to contract separately with such a provider for such coverage with State funds (otherthan a state's or locality's contribution of Medicaid matching funds).
As you know, it is necessary for States to adhere to all conditions for Federal Medicaid funding. As part of its
ongoing State assessment and audit programs, HCFA may include reviews of abortion claims, if necessary, toassure compliance with these conditions.
Please call my office if you have any questions about this matter.
Sincerely yours,/s/Sally K. Richardson, Director
Center for Medicaid and State Operations
cc:
All Regional Administrators
All HCFA Associate Regional Administrators Division of Medicaid and State Operations
Lee Partridge - American Public Welfare Association
Joy Wilson - National Council of State Legislature
Jennifer Baxendell - National Governor's Association