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Comments Submitted to U.S. Department of Health and Human Services

Comments on the proposed State Children’s Health Insurance Program (SCHIP)

Thomas A. Scully
Administrator
Centers for Medicare & Medicaid Services
U.S. Department of Health and Human Services
Attn: CMS–2127-P
P.O. Box 8016
Baltimore, MD 21244–8016

File Code CMS–2127-P

Dear Mr. Scully:

The Center for Reproductive Rights is a non-profit legal advocacy organization dedicated to protecting and defending women’s reproductive rights, including the rights of pregnant women to safe pregnancy. The Center submits these comments to express significant concerns with the proposed amendment to regulations governing the State Children’s Health Insurance Program (SCHIP), published at 67 Federal Register 9936 (March 5, 2002) (the "Proposed Regulation").

The Center for Reproductive Rights supports the Proposed Regulation’s stated goal of expanding access to early and regular prenatal care in order to ensure the health of both pregnant women and newborns. However, the approach proposed here – amending the definition of a covered "child" to include "the period from conception to birth," thereby allowing health insurance coverage for a zygote, embryo and fetus in utero – is fraught with legal and practical problems and could actually undermine the health of the pregnant woman. Indeed, because there are other less controversial and more effective ways of achieving the stated goal, the Administration’s choice of this strategy is curious at best.

If the Administration is truly serious about expanding access to prenatal care and insuring the health of both pregnant women and newborns, the Administration will: 1) withdraw the Proposed Regulation; 2) put its full energy into ensuring passage of pending federal legislation that would expand SCHIP to allow states to provide health insurance coverage to pregnant women; and 3) adopt an expedited process for states to apply for and receive § 1115 waivers to expand SCHIP coverage to pregnant women to be used until the federal legislation takes effect.

DISCUSSION


SCHIP authorizes federal grants to states for the provision of health insurance coverage to "targeted low-income child[ren]." 42 U.S.C. § 1397jj(a). Under the SCHIP statute, a "targeted low-income child" is defined as "a child" who is not insured, who meets certain income criteria determined by the state, and who is "an

individual under 19 years of age." 42 U.S.C. § 1397jj(b)(1); 42 U.S.C. § 1397jj(c)(1). Current regulations echo the statutory definition of child, by providing that "[c]hild means an individual under the age of 19." 42 C.F.R. §457.10. The Proposed Regulation would amend 42 C.F.R. § 457.10 to provide that "[c]hild means an individual under the age of 19 including the period from conception to birth." 67 Fed. Reg. 9936 (March 5, 2000) (emphasis added).

A. Necessity of Increasing Access to Health Insurance Coverage for Pregnant Women.

The Center for Reproductive Rights wholeheartedly supports efforts to expand access to pregnancy-related care. Currently, the United States ranks twenty-first in the world in rates of maternal mortality – this despite the availability of unsurpassed medical professionals and technologies. Early and regular prenatal care that begins in the first trimester of pregnancy also helps to ensure a healthy pregnancy and optimal birth outcome. It is estimated that half of all maternal deaths in the United States could be prevented through early diagnosis and appropriate medical care of pregnancy complications.

A primary barrier to timely prenatal care, and thus to improving the health of pregnant women and newborns in the United States, is lack of health insurance coverage. Despite the Medicaid expansions implemented in the late 1980s and early 1990s, recently released figures from the March of Dimes indicated that nearly one in five women of childbearing age (ages 15-44 years) in the United States were still uninsured in 19991. Thus, further expansions are necessary to reach the uninsured.

Moreover, as the Administration has recognized, there is a troubling disparity between the regularity with which minority and white women are able to gain access to prenatal care; rates of maternal mortality and morbidity, and infant mortality – which are highest among non-white populations – reflect this disparity. While research suggests that racial and ethnic inequalities in medical treatment would persist in some measure even if access to health insurance were equalized, see Key Facts: Race, Ethnicity, and Medical Care, The Henry J. Kaiser Family Foundation (October 1999), it also appears that increased access to health insurance coverage would reduce these disparities based on race and ethnicity, id.

Therefore, increasing access to health insurance coverage for pregnant women is vital for two reasons. First, insuring access to early, regular and risk-appropriate pregnancy-related care for women in all ethnic and racial groups must be the first step in any efforts to reduce overall rates of maternal mortality and morbidity, and to erase the disparity between the quality of care received by women of color and white women. Second, increased access to prenatal care will improve the health of newborns throughout the country and similarly work to erase disparities in infant mortality rates between racial and ethnic groups.

B. The Proposed Regulation Goes Beyond the Scope of the Secretary’s Authority.

Not only is the Proposed Regulation bad public health policy, see infra, it is not authorized by the SCHIP statute, and thus the Secretary is overreaching his authority. See, e.g., State of Wyoming v. United States of America et al., 279 F. 3d 1214, 1230 (10th Cir. 2002). The "question of whether federal law authorized certain federal agency action is one of congressional intent." Id. In this case, the Secretary’s interpretation of the term "child" is inconsistent with the legislative history and the structure of the SCHIP statute.

First, the SCHIP statute nowhere states that fertilized eggs, embryos, or fetuses are considered to be "child[ren]." Instead, by making reference to the State in which the child "resides," 42 U.S.C. § 1397jj(b)(1)(ii)(III), the statutory language suggests the contrary. In ordinary usage, a fetus is not considered to have a "reside[nce]." Nor is there any evidence in the legislative history that Congress intended to extend SCHIP benefits to include "unborn children," or even that it considered the question. It simply cannot be assumed, especially given the controversial nature of the proposition, that Congress would have intended child to mean a fertilized egg, embryo or fetus unless it had been explicitly discussed. See, e.g., State v. Ashley, 701 So.2d 338, 342-43 (Fla. 1997) (rejecting homicide prosecution of woman who shot herself in abdomen while pregnant, causing premature birth and subsequent death of her fetus). As the Florida Supreme Court stated in Ashley:

we must decline the State Attorney’s invitation to join in this fray. This Court cannot abrogate willy-nilly a centuries-old principle of the common law – which is grounded in the wisdom of experience and has been adopted by the legislature – and install in its place a contrary rule bristling with red flags and followed by no other court in the nation.

Id.

Second, in two similar contexts, federal courts rejected arguments that the term "child," as used in the federal statutes creating the AFDC and Medicaid benefit programs, included fetuses. In Burns v. Alcala, 420 U.S. 575 (1975) (rejecting argument that term "dependent child," as used in the AFDC statute, included "unborn children"), the Court reasoned:

Our analysis of the Social Security Act does not support a conclusion that the legislative definition of "dependent child" includes unborn children. Following the axiom that words used in a statute are to be given their ordinary meaning in the absence of persuasive reasons to the contrary, . . . and reading the definition of "dependent child" in its statutory context, we conclude that Congress used the word "child" to refer to an individual already born, with an existence separate from its mother.

420 U.S. at 580-81 (citations omitted). Likewise in Lewis v. Grinker, 794 F. Supp. 1193 (E.D.N.Y. 1991), aff’d on other grounds, 965 F.2d 1206 (2d Cir. 1992), the federal district court concluded that fetuses are not eligible for Medicaid. It held:

In all events, the phrase "individuals under the age of 21" does not easily apply to unborn children under ordinary usage. The unborn are not "persons" under the Constitution. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed.2d 147 (1973). In addition, the "age" of any individual is normally computed from birth. While the statute does not require calculation of the precise age "under 21," it is apparent that any construction of the phrase "individuals under the age of 21" which will accommodate the unborn is not ordinary usage. Accordingly, I conclude that Congress did not intend the phrase "individuals under the age of 21" to include the unborn.

794 F. Supp. at 1198. The same reasoning applies here: under ordinary rules of statutory construction, it is clear that Congress did not intend the phrase "individual under 19 years of age," within the meaning of the SCHIP statute, to include the "unborn." For this reason, the Secretary lacks authority to promulgate the Proposed Regulation.

C. By Covering the Zygote, Embryo or Fetus and Not the Woman Herself, the Proposed Regulation Could Place the Health of Pregnant Women at Risk.

Although the Administration claims that the goal of the Proposed Regulation is to provide for comprehensive prenatal care in order to improve the pregnant woman’s health, the mechanism chosen could actually place the woman herself at risk. The Proposed Regulation does not provide any insurance coverage for pregnant women in the post-partum period, nor does it provide for comprehensive care for pregnant women during either pregnancy, or labor and delivery.

First, the standard of care for pregnant women requires continuity of medical treatment from prenatal care through post-partum care. The American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP) recommend that the physical and psychosocial status of the mother be assessed on an ongoing basis following hospital discharge. They further recommend that four to six weeks after delivery the mother should receive a postpartum review and examination. American Academy of Pediatrics & American College of Obstetricians and Gynecologists, Guidelines for Perinatal Care (4th ed. 1997).

Unfortunately, the Proposed Regulation would not allow states to provide SCHIP coverage to pregnant women for any post-partum care. This is because under the Proposed Regulation, SCHIP would cover only the "child" in utero, not the pregnant woman. While the pregnant woman would incidentally receive some covered care as a result of carrying the "child" within her uterus, that covered care would be available only during "the period from conception to birth." Proposed Regulation, 42 C.F.R. § 457.10. The moment after the birth of her child, a woman who may have been covered for any incidental care as a result of having a SCHIP-covered fetus in utero, would appear to lose insurance coverage. The woman would therefore not be eligible for any covered care during the post-partum period, including for the post-delivery hospital stay, care for her incision received during a Cesarean section delivery, for an episiotomy or any other post-delivery complications. This result flies in the face of sound medical and public health policy, not to mention the Proposal Regulation’s stated goals.

Second, by insuring only the fetus, it is unclear whether the Proposed Regulation authorizes insurance coverage for pregnant women for medical treatments that do not have a direct impact on the well-being of the fetus. Thus, for example, if an epidural is needed during delivery, would that be covered even though it would benefit only the woman, and not the fetus? If the woman broke her leg during the pregnancy, would treatment be covered? And, since eligibility for benefits only exists in relation to a living fetus, it is unclear whether any benefits would be available to the mother for complications following a miscarriage – technically, since the beneficiary is no longer alive, such benefits would not be available. While we agree with the statement made by Secretary Thompson regarding the importance of prenatal services as "a vital, life-long determinant of health" for the fetus, we believe that ensuring meaningful health benefits for the pregnant woman is an equally important goal, and one that this Proposed Regulation fails to meet. HHS to Allow States to Provide SCHIP Coverage for Prenatal Care, HHS News Release, January 31, 2002.

Third, targeting coverage to the fetus also appears to create serious conflicts over health care decision making, all of which threaten a woman’s integral right to control her own healthcare. It is unclear under the Proposed Regulation how the interests of the fetus and the pregnant woman should be balanced when their health care needs diverge, or where treatments needed by the pregnant woman could actually be harmful to the fetus. For example, a woman with mental illness may require medications, such as lithium, that are contraindicated for the fetus. See, e.g., Jennifer R. Niebyl, M.D., Drugs in Pregnancy and Lactation, in Steven G. Gabbe, M.D., Jennifer R. Niebyl, M.D., Joe Leigh Simpson, M.D., eds., Obstetrics: Normal and Problem Pregnancies at 249, 255 (3d ed. 1996). Similarly, a woman diagnosed with breast cancer may not be covered for radiation treatments needed to save her life. Would the treatments in these cases be covered? Could the state intervene on behalf of the fetus? What would happen if the life-saving treatment was for the fetus, but it endangered the mother – could the mother be compelled to undergo the treatment? Who would decide these types of coverage questions – the state, the federal government, the doctor, or the pregnant woman herself? Could the state or the other parent’s health care decisions trump the pregnant woman’s, even where her own health could be adversely affected? These are all troubling questions that are raised by the Proposed Regulation, but not addressed.

D. The Proposed Regulation Denigrates Women Without Achieving Its Purported Goal.

Low-income pregnant women deserve actual, not merely incidental, health insurance coverage that covers all of their pregnancy-related needs, including those that extend into the critical post-partum period. By providing insurance for the fertilized egg or fetus, but not for the woman herself, this proposal denigrates women – treating them as mere vessels for a fetus, undeserving of health care in their own right.

The Proposed Regulation is all the more unacceptable because it is not necessary to ensure prenatal care for women whose incomes fall within the SCHIP-eligibility criteria in their state. There are at least two superior means of achieving this goal: 1) federal legislation, already with bipartisan support, has been proposed to expand SCHIP to include pregnant women; and, 2) until federal legislation is in place, a streamlined process for obtaining § 1115 waivers to add pregnant women to a state’s SCHIP program (as New Jersey and Rhode Island have done). Given the superiority of these alternative means of achieving improved birth outcomes, the Administration’s decision to promulgate the Proposed Regulation must be seen as a political gambit, unrelated to improved pregnancy-related care.

This conclusion is even clearer given the absence of any new federal funding to pay for the increase in SCHIP-eligible individuals as a result of the Proposed Regulation. Given that states are already experiencing a shortfall in funding for SCHIP, and in some states are actually disenrolling children from their state programs – even without expanding SCHIP to cover fetuses2, it is hard to imagine that states would have the resources to pay for expanded access to basic prenatal care, let alone the extraordinary expense of in utero treatments of life-threatening conditions to the fetus, as described in the Notice of Proposed Rulemaking, 67 Fed. Reg. at 9937 (discussing availability of "fetal/neonatal pediatric surgery" as one of the benefits of the Proposed Regulation). For this reason, the Proposed Regulation cannot be seen as a serious attempt to expand health care. Rather, it can only be seen as an ideologically-based attempt to redefine a fetus as a "person," in conflict with the Supreme Court’s ruling in Roe v. Wade, 410 U.S. 113 (1973) – without regard to whether health care coverage is actually increased.

E. This Regulation Seeks to Chip Away at Fundamental Principles of Constitutional Law.

By defining a fetus as a "child" from the moment of conception for purposes of SCHIP, the Proposed Regulation is in clear tension with fundamental principles of constitutional law. The Supreme Court clearly stated in Roe v. Wade that "[T]he word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn," 410 U.S. 113,158 (1973). The Administration’s impractical attempt to force the definition of a child to include a fetus results in bizarre outcomes and administrative confusion, revealing the Administration’s true goal of chipping away at fundamental rights. For instance, under current law, states track eligibility for public benefits using Social Security numbers, which all Americans receive when they are born. Since fetuses are not eligible for Social Security numbers, it is unclear how states will track their eligibility for benefits until they are born. Will they create a whole new individual identifier just for fetuses? There will be further implications for tax rules as well. Generally, an American citizen is only counted for taxation purposes after they are born. Does the granting of legal personhood under the Proposed Regulation mean that fetuses could be taxed inside the womb? Alternatively, could they be claimed as a deduction before they are born? These examples demonstrate the irrationality of this policy and the confusing results it would generate.

Other Supreme Court cases, such as Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) and Stenberg v. Carhart, 530 U.S. 914 (2000) have emphasized the importance of protecting women’s health in the face of laws restricting access to abortion. Because the Proposed Regulation elevates the fetus’ health to the potential detriment of the woman’s health, this conflict places the Proposed Regulation in further tension with Supreme Court precedent by potentially jeopardizing the woman’s health.

The Proposed Regulation indicates that the Administration cares more about promoting the "rights" of a fertilized egg with an eye to building the legal foundation to overturn the Supreme Court decision in Roe v. Wade, than it does about women’s health. The best way to improve women’s health is to recognize their right and ability to make private, medical decisions about their own bodies.

Thank you for considering our comments.

Sincerely,

Priscilla J. Smith, Acting Director of Domestic Program*
Nicole Noorigian, Fellowship Attorney*
Center for Reproductive Rights
1146 19th Street NW
Washington, DC 20036
*Admitted only in California