Andrew and Libby Potter look over the letter they received in October, telling them that their region’s largest hospital system would no longer be considered in-network for Libby’s Medicare Advantage policy. The Potters live in Huntsville, Ala., where Libby is a retired middle school librarian and Andrew is a professor at a state university. (Anna Claire Vollers/Stateline)

HUNTSVILLE, Ala. — Libby and Andrew Potter usually ignore the avalanche of Medicare Advantage ads that land in the mailbox at their home in Huntsville, Alabama, each fall as Medicare’s open enrollment period begins.

Libby, a retired middle school librarian, has what she considers good health insurance through the state employee health plan. Andrew has insurance through his job as a university professor and plans to join Libby’s insurance when he retires next year.

But this year, a few days before open enrollment began, a letter arrived from UnitedHealthcare, informing the Potters that the region’s largest hospital system would no longer be considered in-network for Libby’s Medicare Advantage plan.

The Potters spent the next couple of weeks worried and unsure what to do. It seemed incredible that 14 area hospitals, including the area’s only Level 1 trauma center, could suddenly become much, much more expensive.

“We were being very careful in how we go up and down stairs,” Libby joked.

Baptist Health, Humana restore ‘in network’ coverage for Medicare Advantage patients

Medicare is the federal health insurance program for people over 65 and those with certain disabilities. Medicare Advantage is a version of Medicare run by private insurance companies that contract with the government. These plans typically offer extra benefits, such as dental, vision and prescription drug coverage, that aren’t included with traditional Medicare. More than half of eligible Medicare beneficiaries now get their coverage through private Medicare Advantage plans.

But this year, as Medicare’s open enrollment season kicks off, more than 1 million patients will have to shop for new health insurance. Facing financial and federal regulatory pressures, many insurers are pulling their Medicare Advantage plans from counties and states they’ve deemed unprofitable. Meanwhile, large health systems in states including Alabama, Minnesota and Vermont have cut ties with some Medicare Advantage plans.

It’s a situation that’s alarmed state insurance regulators, who are fielding questions from older adults concerned about their hospitals and doctors withdrawing from their Medicare Advantage plans. Last month, the National Association of Insurance Commissioners sent a letter to the federal Centers for Medicare & Medicaid Services asking for guidance.

“Beneficiaries are faced with either paying the increased out-of-network costs or rescheduling their necessary medical services with another provider who may not have prompt availability,” the insurance commissioners’ group wrote. “A delay in access to medically necessary services is likely to result in harm.”

The Potters eventually learned that Libby’s copayments at the hospital would remain the same whether or not the hospital was in-network for the state educators’ Medicare Advantage plan. But those with other UnitedHealthcare Medicare Advantage plans will have to pay more — or find another plan.

“When a contract leaves the market, that can threaten continuity of care and access to care,” said Dr. Amal Trivedi, professor of health services, policy and practice at the Brown University School of Public Health. “The beneficiary will have to choose a new plan, and each of these plans is going to have a different benefit structure, different provider network, different prior authorization policies and different [prescription drug] formularies.

“The worry is that’s going to affect their out-of-pocket costs, expose them to catastrophic spending, or compromise their access to care.”

How we got here

Insurance giants such as UnitedHealthcare have been aggressively pushing enrollment in their Medicare Advantage plans for the past several years, luring customers with perks and bonuses not available through traditional Medicare. These plans tend to have low or even no monthly premiums and offer extra benefits such as vision and dental coverage, gym memberships, transportation to medical appointments, and even debit cards for medical supplies.

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And they’re simple: They provide all of a person’s coverage in one plan, unlike traditional Medicare, under which people must get separate prescription drug coverage and supplemental coverage.

But there are trade-offs. Medicare Advantage plans often have a limited network of hospitals and physicians. And while the premiums are typically low, enrollees could end up paying more in the long run in copays and deductibles if they develop a serious illness.

Medicare Advantage programs also are more likely than traditional Medicare to require prior authorization for hospital stays and other high-cost services. The plans’ prior authorization requirements have prompted increased scrutiny in recent years. A congressional investigation by Democratic Senate staff released this month, for example, found the nation’s largest Medicare Advantage insurers denied a quarter of all prior authorization requests for post-acute care in nursing homes, rehab hospitals and long-term care.

Medicare Advantage is popular among large employers, many of which are shifting their Medicare-age retirees into these plans. And most states offer Medicare Advantage plans to retired state employees; in 13 states, it’s the only option. In some of those 13 states, retirees forfeit their health benefits in perpetuity if they choose coverage under traditional Medicare.

North Carolina Treasurer Dale Folwell, whose office administers the state health plan, said its Medicare Advantage plan is popular.

“What we hear from our retirees, is that they are grateful and happy to have such a great offering as a result of their retirement benefit,” the Republican said. “That’s why nearly 89% of our retirees over age 65 have availed themselves of the [Medicare Advantage] product we offer them.”

Insurers retreat

This year, the handful of insurance giants that dominate the Medicare Advantage market have said they’re scaling back or eliminating plans, to shed members and boost sagging profits. They blame new federal changes to their reimbursements, including a small cut to their base payments, and say patients are using more medical services and benefits than they anticipated.

Though most companies haven’t released data on specific counties where they’re making cuts, plans are reportedly shuttering in states such as Alabama, Massachusetts, Missouri, New Hampshire, New Mexico, Texas and Vermont, affecting hundreds of thousands of older adults. Experts say the reasons why a company might find certain markets unprofitable are complex, but can include demographics, availability of providers and plans that are already in the market.

“[T]he industry broadly is going to be trimming benefits and in some cases significantly, and exiting from certain counties that aren’t profitable,” Aetna’s former President Brian Kane told shareholders on an earnings call in May, before he left his position. Aetna, a subsidiary of CVS Health, is the third-largest Medicare Advantage insurer in the nation. “I think that’s an industry issue and I think it’s clearly an Aetna focus as well.”

Executives at CVS Health, Aetna’s parent company, told shareholders the priority for its Medicare Advantage program would be improving profit margins rather than increasing the number of enrollees.

They have not announced publicly which counties will lose Medicare Advantage plans, but noted their changes could push out 10% of their membership, meaning up to 420,000 patients could be forced to shop for a different plan.

Canceled plans

Even with the decline in the number of plans available next year, “there are still a lot of plans and people have a lot of options,” said Jeannie Fuglesten Biniek, associate director of the Medicare policy program at KFF, a health policy research organization. Next year, the average Medicare beneficiary will have access to 34 Medicare Advantage plans that include drug coverage, down from 36 this year, she said.

But that average masks wide variation across states and even counties in how many plans are available.

“There are a handful of counties, more than in previous years, where all Medicare Advantage plans exited and those look to be predominantly rural counties,” said Fuglesten Biniek. “We’re talking fortyish counties out of 3,000. For those people in those counties, that matters, but overall, it’s a smaller number.”

Experts say there isn’t enough data available yet to know whether the plan exits are concentrated in certain states or counties.

But research has shown that Medicare Advantage plans that enroll higher shares of Black beneficiaries are more likely to be terminated, said Trivedi, of Brown University. Black enrollees have?more lower-quality Medicare Advantage plans?available in their counties of residence than white enrollees, research shows; terminated contracts tend to?have lower-quality ratings.

“The consequence is that contract terminations in Medicare Advantage seem to have a disproportionate effect on Black beneficiaries because their contracts are more likely to be terminated,” Trivedi said.

A disproportionate share of Medicare Advantage beneficiaries are Black, Hispanic, and Asian and Pacific Islander. These patients tend to have lower incomes than white beneficiaries, and may by drawn by the lower upfront costs of Medicare Advantage plans.

“[Insurers] like to frame it as, ‘People are choosing us because we’re awesome,’” said Brandon Novick, program outreach assistant at the Center for Economic and Policy Research. “But it’s because financially it makes more sense in the short term” for people with limited incomes.

Meanwhile, at least 28 health systems in 21 states have stopped accepting some Medicare Advantage plans this year, according to an analysis from Becker’s Hospital Review, an industry publication.

Health systems have cited delayed reimbursements, cumbersome prior authorization requirements and high rates of patient claim denials for their decisions to drop Medicare Advantage plans. Nearly 1 in 5 health systems stopped accepting one or more Medicare Advantage plans last year, according to a report by the Healthcare Financial Management Association.

‘A tough ask’

For retirees like Libby and Andrew Potter, losing access to trusted doctors and hospitals can mean going longer without needed medical care. Finding a new doctor and getting an appointment can take months, particularly for specialists. And for older adults living in rural areas, losing an in-network hospital or physician can mean choosing between a long drive for care or high out-of-pocket costs.

“There are really important access-to-care issues when providers no longer contract with your Medicare Advantage plan,” Trivedi said.

He said the sheer number of plans and differences in benefits might be overwhelming for older adults.

“To sort through all of that when somebody also may have frailty or cognitive impairment, that’s a really tough ask,” Trivedi said. “I study health policy for a living and it’d be hard for me to sort through 40 different options.”

This story is republished from?Stateline, a sister publication to the Kentucky Lantern and ?part of the nonprofit States Newsroom network.?

Hundreds of people rallied at the Alabama State House in Montgomery, Ala., in February in support of legislation to protect in vitro fertilization. Democrats are hoping that increased engagement on the issue of in vitro fertilization will translate into voter turnout at the polls in November. (Brian Lyman/Alabama Reflector)

Marilyn Gomez was sitting at her kitchen table in Charlotte, North Carolina, on Feb. 16 when news alerts and friends’ texts began pinging her phone: The all-Republican Alabama Supreme Court had ruled that frozen embryos created through in vitro fertilization were children under state law. That meant providers could be held liable for discarding them, a common part of the IVF process.

As Alabama clinics began suspending IVF services and public outrage mounted, politicians on both sides scrambled to distance themselves.

In Gomez’s quiet kitchen, it all felt deeply personal.

“I remember thinking, this is the only way I was able to become a mother,” Gomez told Stateline. She and her husband went through years of fertility treatments and multiple rounds of IVF before the birth of their daughter in 2016. Without freezing her embryos and going through IVF, she said, “I would not be a mom. My 8-year-old would not be here.”

Gomez owns a small business, called Infertile Tees, where she designs and sells shirts and accessories aimed at people experiencing infertility. Less than two hours after hearing about the Alabama court ruling, Gomez, who describes her political views as Democratic-leaning, had created a new set of T-shirt designs featuring the slogan “Protect IVF.”

In the wake of the Alabama ruling, potential threats to IVF access have become an election-year issue, pushing many political novices toward involvement and activism. Reproductive rights groups say they’ve seen unprecedented interest in protecting IVF access, and Democrats hope it will motivate voters in the swing states that will decide the election, including North Carolina.

At least 19 states — either through state law, criminal statutes or case law — have declared that fetuses at some stage of pregnancy are people, according to a 2023 report by Pregnancy Justice, a nonprofit that conducts research and advocates for the rights of pregnant people, including the right to abortion. Such statutes could, in theory, be used to restrict or ban IVF by classifying the destruction of embryos as causing the death of a child. The Alabama high court cited so-called fetal personhood language in the state constitution when it issued its decision.

North Carolina isn’t one of those 19 states, but conservatives there have been testing the waters.

A bill proposed last year by three Republican state representatives would have banned abortion from the moment of fertilization, and last year an appeals court judge terminated a woman’s parental rights for conduct during her pregnancy because “life begins at conception,” though the opinion was later withdrawn.

Michigan, Pennsylvania and Wisconsin, all swing states, do have laws that include references to “unborn children.” And in Georgia, another contested state, the state’s abortion ban defines a person as “any human being including an unborn child.”

Democrats are eager to highlight the issue. The newly minted Democratic vice presidential candidate, Minnesota Gov. Tim Walz, has been outspoken about the seven years of fertility treatments he and his wife, Gwen, went through before conceiving.

“This is very personal for my wife and I,” Walz told a crowd in Eau Claire, Wisconsin, last week. “I remember each night praying that the call was going to come, and it was going to be good news. The phone would ring, tenseness in my stomach, and then the agony when you heard the treatments hadn’t worked.”

Republicans say the idea that IVF is under threat is overblown, and dismiss Democratic warnings as scare tactics.

“There is no concerted Republican, conservative, pro-life effort mounting against IVF,” said Cole Muzio, executive director of Frontline Policy Action, a Georgia organization that lobbies for abortion restrictions and other conservative policies.

“I think this is something the left largely has tried to use as a wedge issue, but I don’t think most people are buying it as something that’s a real threat,” he said.

But Muzio acknowledged that some anti-abortion advocates have asked his organization to talk more publicly about IVF. And he predicted that eventually, more conservative lawmakers will turn their attention to the issue.

“Long term, we believe in the value of human life, and that’s my concern with IVF, that it results in the discarding of human life,” he said. “Now that Roe has been overturned and we’re able to have legislative conversations and think about where life begins, it’s an important conversation to have.”

Following public backlash over the Alabama court decision, lawmakers in a dozen states, including Alabama, introduced bills to protect IVF, according to the Guttmacher Institute, a research organization that supports abortion rights.

But so far, only Alabama has enacted a law. In March, Alabama’s Republican-majority legislature hastily passed a measure shielding IVF providers from criminal and civil liability. The only other bill that gained traction was one in Louisiana, where both legislative chambers approved it. However, it was scuttled in May after the state’s powerful anti-abortion lobby opposed the removal of fetal personhood language that would have left IVF providers open to criminal prosecution and civil lawsuits.

Far-reach consequences

For many people, the IVF issue illustrates how fetal personhood laws can have consequences far beyond abortion. And it has energized them.

The National Infertility Association, which goes by the name Resolve, has held a national advocacy day annually for more than two decades. This year, after the Alabama Supreme Court decision, more than a thousand people attended the event virtually, twice the number that attended last year, said Barbara Collura, CEO of Resolve.

“We ended up with our largest advocacy day ever,” she said. “More than half of the people attending were brand new to the event. We feel very much that what happened in Alabama motivated people to figure out a way for themselves to get involved.”

In North Carolina, Gomez sold out her “Protect IVF” T-shirts within 24 hours. She launched a new batch a week later, and sold out again. Since then, she’s continued selling new “Protect IVF” designs, donating a portion of her proceeds to Resolve.

Before getting involved in IVF advocacy, Gomez said she barely paid attention to politics. Now, she’s been active in supporting pro-IVF legislation and contacting her state lawmakers. And she often fields Instagram messages from customers in other states who are scared, she said, and want to know what they can do.

“People are saying to me they didn’t know IVF was on the line, that they were surprised it wasn’t protected in every state,” said Gomez, who sends them links to sites where they can learn more about the state of IVF access where they live. “Customers are saying their parents and grandparents are having these conversations in their social circles, saying they wouldn’t be grandparents without IVF.”

She added: “I think we forget how much power we have. Regardless of what happens with the presidency, we have so much control over what happens in our state.”

‘New territory’

Less than two weeks after the Alabama court decision, Jamie and Dontez Heard stood at one end of a long hallway on the fourth floor of the Alabama State House, staring nervously at all the doors of state lawmakers’ offices. They considered turning around and going back home.

“It was intimidating, and it was scary, not knowing what to say, thinking, ‘I’m going to stumble over my words,’” Jamie said. “What if I say the wrong thing? Neither one of us has ever been in any type of advocacy role, so this was new territory.”

The couple had driven down to Montgomery that morning from their home in Birmingham, anxious but determined to defend their chance at having another baby by convincing their legislators to save in vitro fertilization.

The court decision had landed just two days after the couple met with a specialist in Birmingham to begin a new round of IVF. They’d conceived their son, Legend, now 2, through IVF in 2022 after years of struggling through infertility. They’d hoped to add another child to their family this year.

“It was devastating,” said Jamie. “We didn’t understand what it meant for us and our family.” But a few days after the ruling, she saw a social media post that her fertility clinic had shared about a gathering of IVF families and supporters at the state Capitol.

“I knew then that we needed to be there,” she said. “We couldn’t afford to sit on the couch and wait and see how this plays out.”

Since speaking to Alabama lawmakers, Heard has testified before Congress and traveled to other states to advocate for federal and state laws that would protect access to IVF.

Next door in the battleground state of Georgia, one of the biggest reproductive justice advocacy organizations in the Southeast recently launched its first-ever Black (in)Fertility Awareness Week. SisterSong, which is focused on reproductive rights for women of color, hosted a panel, documentary screening, online discussions and a raffle of $40,000 in fertility services for Black Georgia families.

Leah Jones, director of maternal health and birth equity at SisterSong, said the new initiative had been in the works for a while, but the Alabama ruling highlighted for people how IVF access is connected to other reproductive health issues, from preconception through pregnancy to postpartum.

“What we realized when we started this conversation around infertility in Black communities and listening to their stories, these are the same people talking about maternal health, abortion, mental health, birth justice,” said Jones. “Once you make the connection that this is part of an attack on overall bodily autonomy, I think that’s when it clicks for people.”

Even in Minnesota

As Minnesota’s governor, Walz in 2023 signed a law confirming the right to abortion and other reproductive health care in Minnesota.

And yet Minnesotans like Miraya Gran felt the shockwaves from the Alabama court decision. Gran and her husband struggled for years with infertility before finally conceiving their daughter Isla, now 3, through IVF.

Gran advocates for a Minnesota law that would require health insurers to cover fertility treatments.

“We saw some great momentum after the Alabama decision,” said Gran. “It didn’t really matter which political party you were a part of. If you believed in access to IVF, you joined our group.”

Gran said she considers Minnesota a “safe state” for IVF access and other reproductive rights, at least for now. “But we look to our neighbors in Iowa, where they introduced some personhood bills recently. It’s terrifying. It’s too close to home.”

Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact Editor Scott S. Greenberger for questions: [email protected]. Follow Stateline on Facebook and X.

Women work in a restaurant kitchen in Chicago in March 2023. The Pregnant Workers Fairness Act, a new workplace anti-discrimination law that was passed by Congress with wide bipartisan support, has become fodder in the abortion rights battle between Republican-led states and the federal government. Nam Y. Huh/The Associated Press

Natasha Jackson was four months pregnant when she told her supervisor she was expecting. It was 2008, and Jackson was an account executive at a rental furniture store in Charleston, South Carolina — the only female employee there.

“I actually hid my pregnancy as long as I could because I was scared about what could happen,” she said.

When her doctor recommended that she not lift more than 25 pounds, her employer wouldn’t let her move temporarily to a role where she didn’t need to lift furniture, even though those roles were available, she said. She was forced to go on leave and then lost her job. Her marriage unraveled and she spent time after the birth in emergency housing.

“That hardship affected me years on, and it took away the joy of being pregnant,” said Jackson. “They made me feel guilty and ashamed for having a baby.”

Pregnant workers have new protections. Here’s what to expect from your boss.

Jackson, now 41 and a mother of four who owns her own cleaning company, has spent years working with advocacy groups to fight for better laws to protect pregnant workers. Last year, she was invited to speak at a White House event celebrating the passage of the Pregnant Workers Fairness Act, a new workplace anti-discrimination law for which she had advocated.

But now this law, passed with wide bipartisan support, has become fodder in the bitter battle over abortion rights between Republican-led states and the federal government.

The act fills gaps in state and federal protections by requiring employers with 15 or more employees to provide “reasonable accommodations” for pregnant workers and those who have recently given birth or have related medical conditions — unless the employer can prove it would cause “undue hardship” on the business.

Accommodations can include allowing an employee to take additional bathroom breaks, carry a water bottle, or sit instead of stand while on the job. After years of lobbying by nonprofit organizations and business groups, the federal law passed in December 2022. It went into effect last June.

In its rulemaking process, the Biden administration included abortion as a “related medical condition” covered by the law. That means employees seeking abortion care can ask for accommodations from their employers, such as time off work for an appointment or recovery.

This year, 19 Republican attorneys general — including from Jackson’s home state of South Carolina — have sued the administration over that interpretation.

“It seems quite ridiculous to me that some employers want so much control over employees to the point that they feel like they have the right to threaten their job security because of pregnancy or anything associated with it.” – Natasha Jackson, mom of four who once lost her job after asking for pregnancy accommodations? ? ?

The AGs argue the Biden administration is forcing abortion accommodations even in states where abortions are illegal.

“Under this radical interpretation of the PWFA, business owners will face federal lawsuits if they don’t accommodate employees’ abortions, even if those abortions are illegal under state law,” Arkansas Republican Attorney General Tim Griffin said in a statement last month announcing the lawsuit filed by Arkansas and 16 other Republican-led states.

But some advocates say the lawsuit threatens protections for all pregnant workers covered under the new law — not just the small subset who need abortion care.

“These states are cutting off their noses to spite their faces,” said Elizabeth Gedmark, an attorney and vice president of A Better Balance, a national nonprofit advocacy organization that provides legal services and has long pushed for a national Pregnant Workers Fairness Act.

“These attacks have very real consequences for peoples’ lives and for their economic security and health,” she said.

Jackson fears the lawsuit could lead to fewer workers accessing the care they need to be healthy.

“[Workers] should have the right to proper medical care during pregnancy, after childbirth, after having a miscarriage, or having an abortion,” she said. “It seems quite ridiculous to me that some employers want so much control over employees to the point that they feel like they have the right to threaten their job security because of pregnancy or anything associated with it.”

Into the fray

After Congress passed the Pregnant Workers Fairness Act, the U.S. Equal Employment Opportunity Commission, a federal agency known as the EEOC, had to hammer out a set of rules that clarify what employers can and can’t do under the law.

So last summer, the EEOC sought public comment on its proposed rules for how the new law would work. More than 100,000 comments were submitted over a two-month period.

The flood of comments stemmed from opinions about whether the EEOC should include abortion in its definition of “pregnancy, childbirth or related medical conditions” that are covered under the new law.

The vast majority were nearly identical form comments, according to the EEOC. About 54,000 of the comments urged the EEOC to exclude abortion, while about 40,000 supported its inclusion.

In a 3-2 vote, the EEOC ultimately adopted new rules that included abortion care in its definition of conditions covered under the law. The rules are set to go into effect June 18.

But in April, a week after the EEOC announced its final rules, the 17-state coalition of GOP attorneys general argued in its lawsuit that the agency’s “erroneous interpretation” of the Pregnant Workers Fairness Act creates an “abortion accommodation mandate.”

“When the law was passed by Congress, it was explicitly understood not to address abortion at all, and the text of the statute does not address abortion,” said Tennessee Attorney General Jonathan Skrmetti, who is co-leading the lawsuit with Arkansas’ Griffin.

Skrmetti and the other Republican attorneys general point to comments made by lawmakers during debate on the measure that appear to signal Congress’ intent was not to impose abortion-related requirements in states where those abortions would be illegal.

Pennsylvania Democratic U.S. Sen. Bob Casey, who sponsored the pregnant workers bill, said during debate that the EEOC “could not issue any regulation that requires abortion leave, nor does the act permit the EEOC to require employers to provide abortions in violation of state law.”

The 15 other states joining the lawsuit are Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and West Virginia.

More states have jumped into the fray. In mid-May, Louisiana’s and Mississippi’s attorneys general, both Republicans, filed their own lawsuit challenging the same provision.

And in February, a federal judge in Texas blocked the EEOC from accepting complaints filed by Texas state employees under the Pregnant Workers Fairness Act. It was a win for Texas Republican Attorney General Ken Paxton, who had sued the Biden administration last year.

Protections at risk

Skrmetti, the Tennessee attorney general, believes the Pregnant Workers Fairness Act is a good law.

“It was passed with a degree of bipartisanship that you rarely see,” he told Stateline, “and it undermines the efforts of Congress and the popular will when agencies take laws and change them without the authority of the people’s representatives.”

But Gedmark, of A Better Balance, said decades of legal precedent support including abortion as a related medical condition for pregnant workers. The Pregnancy Discrimination Act, a federal law passed in 1978, prohibits sex discrimination based on pregnancy, childbirth or related medical conditions — a definition that the EEOC has long interpreted to include abortion.

Proponents of the new Pregnant Workers Fairness Act and the EEOC’s rules worry the lawsuits will sow confusion among employers and employees. There’s concern, Gedmark said, that a court could render more of the regulations invalid, beyond those that mention abortion.

Skrmetti doesn’t think the 17-state lawsuit will hurt the law’s protections for pregnant, postpartum and lactating workers.

“The optimal outcome would be for the abortion-related pieces of the rule that aren’t supported by the statute to be vacated,” he said. “But the law remains the law regardless of what the [EEOC’s] rules are.”

While states and the feds clash in court, Jackson said she’s focused on making sure as many women as possible know about their new rights.

Whenever she’s out shopping and spots a pregnant store employee, she asks how they’re doing. She asks if they know about their workplace rights, and how to ask their employers for the accommodations they need.

“Whether a mother decides to have an abortion or not, she still needs medical care after the procedure, the same as she would need medical care if she had a miscarriage or regular childbirth,” Jackson said. “I believe that employers need to know the difference between personal [ideology] and business.”
This story is republished from Stateline, a sister publication to the Kentucky Lantern and part of the States Newsroom network of nonprofits.

This story is republished from Stateline, a sister publication to the Kentucky Lantern and part of the nonprofit States Newsroom network.

People wait in line for a methadone clinic to open in Hoquiam, Wash., in 2017. As a chorus of physicians and advocates calls for loosening methadone restrictions, states have been slower to adopt new relaxed federal rules. (David Goldman/The Associated Press)

Matt Haney’s home in San Francisco isn’t far from a methadone clinic.

The 42-year-old state lawmaker has watched people line up early each morning outside the clinic in the Tenderloin, a community long considered the epicenter of the city’s substance use epidemic. His neighbors wait for the daily dose of methadone that relieves their cravings and minimizes opioid withdrawal symptoms.

Despite methadone’s effectiveness, a labyrinth of state and federal rules — meant to guard against its misuse — keeps it inaccessible to many people who desperately need it, Haney said.

“What kind of normal person with a job, a life and a family can line up for medication every morning, sometimes far from where they live?”

The Democratic assemblymember and majority whip noted that California is one of many states with rules that are stricter than federal regulations on when, where and how people can access opioid treatments like methadone.

“It’s almost comical how difficult it is to get this medication and stay on it,” he said.

Yet addiction treatment in the United States is poised for change. This year, the federal Substance Abuse and Mental Health Services Administration, known as SAMHSA, made permanent a set of pandemic-era rules that loosened several restrictions, including those on take-home doses of methadone.

It’s a move that a broad consensus of academics, advocates and providers says will improve treatment access and success rates. Having the flexibility to take medication at home can mean patients can get to work or get their kids to school on time. They can deal with family emergencies and unexpected travel. And they avoid the stigma of waiting in line at a clinic.

In theory, the new federal rules make more take-home methadone doses available to a wider subset of patients. But what’s less clear is how the rules will trickle down to states. There’s concern states that didn’t preserve the relaxed regulations they had during the pandemic might be slow to adopt them now.

“A number of states will have to revise their regulations if they’re going to be in alignment with what SAMHSA has released,” Mark Parrino, founder and president of the American Association for the Treatment of Opioid Dependence Inc., a national trade group that supports the new federal regulations. “What could delay implementation would be the state regulators.”

Later this month at his group’s annual conference, SAMHSA will convene a closed-door meeting of regulators from all 50 states to discuss the new federal rules and how states might bring their own standards into compliance, Parrino said.

It’s all happening as the opioid crisis, driven by rising fentanyl overdoses, has prompted a chorus of physicians and advocates to call for loosening methadone restrictions even further — a move that leaders at many opioid treatment programs oppose.

‘Liquid handcuffs’

Medications that treat opioid use disorder — such as methadone, buprenorphine and naltrexone — are rigorously regulated by the government. They block the effects of opioids or halt withdrawal symptoms and reduce cravings without causing the same feelings of euphoria.

But while medications like buprenorphine can be prescribed by a physician and taken at home, methadone can only be prescribed and dispensed in the United States through federally certified clinics called opioid treatment programs. Methadone can be taken as a liquid, a pill or an injectable.

Currently, about 1,800 certified opioid treatment programs operate in the United States, giving methadone treatment to about 400,000 people.

That’s just 19% of the estimated 2.1 million people in the United States who have opioid use disorder.

As Fentanyl Use Spikes, Feds Urge States to Ease Methadone Rules

Until the pandemic, most methadone patients had to visit a clinic daily to take their doses while a provider watched. Restrictions stem from concern that methadone can be abused or resold. Even though it does not produce an intense high, it’s possible to overdose if it’s not taken as prescribed.

But the tight regulation created a system that keeps patients tethered to the nearest methadone clinic with what some have called “liquid handcuffs.” Long clinic lines, varying hours, counseling requirements and inflexible rules around rescheduling appointments make it difficult for patients to juggle job and family responsibilities.

One pregnant patient in a 2021 study reported being required to remain in line at her methadone clinic even after her water broke. Other patients said they were refused take-home doses for family emergency situations or were randomly required to make additional clinic visits. Ten states require methadone providers to observe patients during urine sample collection, according to a 2021 analysis by The Pew Charitable Trusts.

“There’s no other medical condition where we feel like patients need to earn the right to treatment,” said Ximena Levander, an addiction medicine physician and researcher at Oregon Health & Science University. “What SAMHSA has done with these new rules is to try to shift that paradigm from a punitive, ‘you need to earn this’ model to a patient-centered, individualized treatment plan.

“But it’s going to take time for that culture change to happen.”

A power imbalance

At the outset of the COVID-19 pandemic, federal officials allowed states to give more methadone patients up to 28 days of take-home doses. In February of this year, SAMHSA made these new, looser rules permanent. They went into effect last month, and opioid treatment programs have until October to comply.

“That’s an ambitious timeline,” said Parrino, of the trade group. His association represents more than 1,300 opioid treatment clinics.

At least 10 states had “stability criteria” for take-home doses that were stricter than federal rules as of June 2021. Individual opioid treatment programs might be more conservative still. Some, for example, won’t allow take-home doses for patients who drink alcohol or use cannabis. Even individual clinicians might have their own views about what patients must do before being allowed take-home doses.

States strive to get opioid overdose drug to more people

The requirements help keep patients safe, Parrino said: “Methadone is an incredibly successful medication and it’s extremely effective, but it’s deadly if used unwisely.”

Yet for patients, opioid treatment programs’ monopoly on methadone treatment represents a power imbalance that’s not as apparent in other areas of medicine.

Levander recalled one patient who said her treatment program had increased her required clinic visits from once a month to once every two weeks, and she felt like she had no recourse to challenge that decision.

“Patients know if they lose access to their medication, they may not have another methadone program nearby and they could return to use [of illicit drugs],” Levander said. “The opioid treatment programs have all the power and control. There’s not a lot of desire from patients to rock the boat.”

Haney, the California state lawmaker, has introduced a bill that would remove several barriers to methadone access, including allowing physicians outside of opioid treatment clinics to temporarily prescribe take-home doses. The bill passed out of committee late last month with bipartisan support.

Minnesota lawmakers introduced a bill this year, still in committee, that would bring the state’s rules for dispensing take-home doses in line with federal rules. Some states, such as Massachusetts, issued executive orders adopting many of the new federal guidelines. State agencies in places including Minnesota and Colorado have shifted their rules to adopt a more patient-centered approach to addiction medicine.

But other states haven’t yet followed suit.

“It’s so highly variable as far as where states are on this issue,” said Bobby Mukkamala, a physician in Flint, Michigan, who is on the board of trustees at the American Medical Association. “Some states are way ahead at truly looking at substance use disorder as a medical condition, not something to be punished.”

Methadone monopoly

Meanwhile, a bipartisan bill in Congress could further deregulate the opioid treatment industry and open methadone treatment nationally to physicians outside of clinics. U.S. Sen. Edward Markey, a Democrat from Massachusetts, and U.S. Sen. Rand Paul, a Republican from Kentucky, have introduced legislation that would allow physicians trained in addiction treatment to prescribe methadone outside of a clinic.

It’s a move supported by several national organizations, including the American Medical Association.

“If it’s the restriction that’s stopping patients with these issues from seeing a physician to help, then we need to remove it,” said Mukkamala.

Long Stigmatized, Methadone Clinics Multiply in Some States

But the opioid treatment program industry is pushing back. Parrino noted that many opioid use disorder patients have other associated conditions, from HIV to emotional trauma, that require the kind of comprehensive and regimented treatment available from a certified clinic.

Earlier this year, Markey suggested opioid treatment clinics have more financially driven motivations for their opposition to expanding methadone to non-clinic settings.

“Ultimately, tethering methadone exclusively to opioid treatment programs is less about access, or health and safety, but about control, and for many investors in those programs, it is about profit,” he said in a February statement about the new rules.

Nearly two-thirds of opioid treatment programs are operated by for-profit companies. At least 562 of those are financed by private equity firms, according to a STAT News analysis. Private equity’s involvement in health care has been the subject of an avalanche of scrutiny from lawmakers, advocates and researchers in recent years.

A growing body of research supports methadone’s deregulation. A 2022 survey of opioid treatment patients in a Midwest community found more than half reported travel and work conflicts kept them from treatment. Last year, researchers found that flexible methadone take-home policies were associated with fewer overdose deaths among Black and Hispanic men. Another recent study found that take-home flexibility of methadone did not lead to more methadone-involved deaths.

Haney, the California lawmaker, thinks moving methadone beyond clinic walls would benefit not just people with opioid use disorder, but also their surrounding communities, such as the Tenderloin.

“These outdated policies come from a fear of these patients and a fear of this medication that’s misguided,” he said. “It’s fueling the crisis that we are now facing.”

This story is republished from Stateline, a sister publication of the Kentucky Lantern and part of the States Newsroom network.

A nonprofit worker prepares items for the first Appalachian Save a Life Day naloxone distribution event in September at the Unitarian Universalist Congregation of Charleston in Charleston, West Virginia. Leah Willingham/The Associated Press

Posing as shoppers, a team of researchers from the University of Mississippi called nearly 600 pharmacies across the state and asked a simple, yes-or-no question: “Do you have naloxone that I can pick up today?”

Mississippi enacted a law authorizing pharmacists to sell the opioid overdose reversal drug naloxone — often sold under the brand name Narcan — in 2017. The drug, which can be administered via nasal spray or injection, can prevent death from overdose by blocking the effect of opioids in the body.

The results of the survey, conducted last year, were disheartening: Despite the Mississippi law, 41% of the pharmacies the researchers called refused to dispense naloxone. Only 37% had naloxone available for same-day pickup. Most of the pharmacies saying they could not immediately provide naloxone said it required a prescription, which was false.

“It seems like that refusal might have been driven by a lack of education about the state’s naloxone policy,” said Emily Gravlee, a pharmacist and a doctoral candidate at the University of Mississippi who conceived of and directed the secret-shopper study.

Earlier this year, the U.S. Food and Drug Administration approved Narcan to be sold over the counter. That means that residents in every state can buy it at their local pharmacy without a prescription — at least in theory.

In reality, access remains patchy.

As the Mississippi researchers and other studies have found, pharmacies don’t always keep the drug in stock. And naloxone spray can be pricey for people paying out of pocket; a two-dose pack of Narcan typically retails for about $45-$50. As an over-the-counter medicine, it may not be covered by insurance.

In the past year, more states and municipalities have launched programs to distribute hundreds of thousands of doses of naloxone for free in a myriad of ways: by mail, vending machines, community groups, telehealth, first responders and more.

“We need to normalize that it is not only the humane thing but the appropriate thing to treat people with substance use disorders just like we do people with other diseases,” said Dr. Steven Stack, Kentucky’s commissioner for public health and president of the Association of State and Territorial Health Officials.

“We don’t tell diabetics, ‘I can’t believe you need to have insulin every day,’” Stack said. “We need to recognize people [with substance use issues] as someone with a medical problem. And there are resources available.”

A changing adversary

Drug overdose deaths in the United States have risen fivefold over the past two decades, claiming?nearly 107,000 lives from last June to this June, according to?the most recent?estimates from the federal Centers for Disease Control and Prevention.

Twenty years ago, overdose deaths involving opioids mostly were from prescription drugs such as oxycodone and hydrocodone. In 2010, a new version of the prescription painkiller OxyContin was introduced that was harder to misuse, leading to a rise in the use of illicit opioids such as heroin.

The opioid epidemic continues to mutate. Today, overdose deaths are overwhelmingly caused by fentanyl and other synthetic opioids. They accounted for?nearly 88% of opioid overdose deaths?in 2021, the latest year for which final CDC?data is available.

“In years past, many people who were chronic users of things like heroin or morphine or hydrocodone were experienced and knew their limits, so they didn’t overdose as often,” Stack said. But over the past decade, illicit drugs have increasingly been mixed with fentanyl to make them cheaper and 50-100 times more potent.

“When you get a drug on the street that’s laced with fentanyl, for most people it doesn’t matter what their tolerance already is,” he said. “One experimentation could be deadly, because fentanyl is that powerful.”

Enlisting bystanders

Naloxone is highly effective at reversing overdoses. It typically restores breathing within two to three minutes, and it’s safe even if given to someone without opioids in their system. It’s also non-addictive and doesn’t create a high.

Experts now say it’s vital for family members, coaches, business owners and community members to have naloxone on hand so they can administer it quickly if they encounter someone experiencing overdose, which can cause difficulty breathing and a loss of consciousness. Studies have shown bystanders are present in about one-third of all overdoses, Stack said.

“If you are in the midst of an overdose, you don’t have the capacity to treat yourself,” said Stack. “That’s why we have to make sure it’s in the hands of bystanders or witnesses.”

Last year, the Biden administration directed $1.5 billion to states to help them address the opioid and overdose epidemic, including funding for health departments to buy and distribute naloxone. Through State Opioid Response grants, 6.6 million naloxone kits were distributed and nearly 400,000 overdose reversals reported, according to the National Association of State Alcohol and Drug Abuse Directors.

Most states direct federal and state funding to community groups, local health departments, first responders, needle exchanges and other organizations to help them offer free or low-cost naloxone.

Increasingly, states also?are trying to get the overdose reversal drug to individuals. Last December, the Mississippi State Department of Health launched a service that mails free naloxone kits to residents who request them. The naloxone mailing program is part of a larger statewide?substance use program initiated a few years ago to tackle Mississippi’s overdose crisis. And the state’s overdose rates have shown improvement: Mississippi’s total number of suspected drug overdose deaths?decreased by more than 35% from 2021 to 2022, and the number of opioid-related deaths decreased by more than 25%, according to the most recent data from the Mississippi Opioid and Heroin Data Collaborative.

Other states, including Delaware and Kentucky, also have embraced mail-based delivery programs, offering residents free naloxone through the mail. The nonprofit Harm Reduction Ohio, which mails free naloxone to Ohioans on request, reports having distributed 42,000 naloxone kits last year. Iowa’s Naloxone Iowa initiative offers free naloxone from a pharmacy or by mail for individuals who set up a telehealth appointment with a pharmacist through the University of Iowa’s Tele-Naloxone program.

In Kentucky, Stack’s department is placing boxes filled with free naloxone near high-traffic areas such as shopping centers, sporting events and common areas on college campuses.

States, cities and districts including?Kansas,?Las Vegas,?Michigan, New York City,?Northern Idaho, Philadelphia and?San Diego County also have launched vending machine programs in the past year that offer free naloxone kits.

Dr. Karen Scott, president of the Foundation for Opioid Response Efforts and a physician in preventive medicine, said the recent spike in youth overdose death rates means more middle and high schools should look at making naloxone easily available.

Experts have attributed the increase in the adolescent overdose death rate almost entirely to fentanyl, which is increasingly found in counterfeit pills.

“I appreciate that some school districts will be very hesitant and say, ‘This doesn’t happen here,’” Scott said, “but the data is telling us that we need to be paying more attention to this population and their risk of unintentional overdose.”

Most teens don’t have an opioid use disorder or a long history of drug use, she said. But that doesn’t mean they have no need for naloxone.

“Given the prevalence of [counterfeit] pills in schools, a kid might think they’re getting a valium off their friends or an attention-deficit medication and it’s really fentanyl,” she said. “You don’t have to have a long history of using opioids to be at risk of having an overdose.”

Stateline like Kentucky Lantern is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact Editor Scott S. Greenberger for questions: [email protected]. Follow Stateline on Facebook and Twitter.

Brianne Walker plays with her 3-year-old daughter, Jeannette, at A Place To Grow day care in Brentwood, N.H., in July 2021. Walker and her family qualified for the expanded child tax credit that was part of a pandemic relief package. Elise Amendola/The Associated Press

The federal pandemic-era child tax credit expansion lifted millions of children out of poverty in the second half of 2021. But Congress allowed it to expire at the end of that year, and new U.S. census data shows the child poverty rate more than doubled in 2022, erasing the record gains that were made.

“It wasn’t surprising because we knew this was coming,” said Megan Curran, policy director at Columbia University’s Center on Poverty and Social Policy. “But still, when you see the magnitude of the change, and you know how many kids that represents, it’s still shocking.”

Now states are stepping in. Since the federal enhancement ended, several states have launched or expanded their own child tax credits.

Six states have created new child tax credits (New Jersey, New Mexico and Vermont in 2022, and Minnesota, Oregon and Utah this year), while five more have expanded their existing credits, according to the Institute on Taxation and Economic Policy, a nonpartisan tax policy nonprofit. Currently 14 states offer child tax credits, and several others saw bills introduced this year.

“Child poverty has often been thought of as this status quo that can’t change,” said Curran. “But one of the most powerful lessons to take out of the horrible pandemic is that our policy decisions really matter, and we can make a huge difference in a short amount of time.

“We know what works and we know how to do it. This is a solvable problem.”

A new approach

In 2021, the American Rescue Plan Act temporarily expanded the federal child tax credit, increasing the maximum credit to $3,000 per child ages 6-17 and $3,600 per child under age 6. It was a significant bump from the previous $2,000-per-child credit.

The temporary expansion gave the credit in monthly cash payouts to about 6 in 10 U.S. households with children, rather than as one lump sum after taxes. And it made the full credit available to all low- and middle-income families making less than $150,000 for married couples ($112,500 for single parents). The previous credit excluded income earners at the lowest end of the spectrum.

After the payments began, the nation’s child poverty rate dropped by half in 2021 to a historic low of 5%, primarily thanks to the expanded child tax credit, according to researchers at the Annie E. Casey Foundation, a charitable organization focused on child well-being. The expansion helped lift 3 million children out of poverty, according to the U.S. Census Bureau, which found that most parents said they used the credit payments on child care, rent, utilities, food and school expenses.

“You saw this whole host of data coming from all sorts of places, showing these payments were having a positive and immediate effect on families’ basic needs, and how they were able to care for their children,” Curran said. “You were seeing particularly significant gains for families with lower incomes.”

While the federal tax credit expansion did lift children out of poverty in the short term, some analysts argue it could have had negative long-term effects if made permanent.

“What we worry about, with good reason given the evidence, is that a lot of families will receive that extra money and it will cause them to work less or to not work at all,” said Scott Winship, senior fellow and director at the Center on Opportunity and Social Mobility at the American Enterprise Institute, a center-right public policy think tank. Winship said a permanent expanded child tax credit also might discourage marriage and result in more families headed by single parents.

Two pieces of?2021?research?from economists at the University of Chicago concluded that if the expanded child tax credit were made permanent, between 1.3 million and 1.5 million workers would exit the labor force. A 2021 analysis of census data from Columbia University researchers found that the temporary expanded benefits during the pandemic didn’t discourage parents from working, but Winship said the results might have been different if people thought the expanded credit was going to be permanent.

“It takes time for a lot of these behavioral changes to develop,” he said. “I don’t think 2021 is a very good test of what would happen in the long run.”

Winship added that he doesn’t think state-level child tax credits are a good idea, but that he’d rather see states experiment with different approaches to reducing child poverty than the federal government.

Who’s left out?

Now that eligibility for the federal credit has reverted to its pre-pandemic rules, low-income families are no longer receiving the full tax credit afforded to middle-income families.

For example, a married couple with two children must earn at least $35,900 per year to qualify for the maximum $2,000 child tax credit; a single parent with two children would have to earn $29,400 to qualify, according to the Center on Poverty and Social Policy. That means children whose parents get paid at or near the federal minimum wage of $7.25 an hour don’t qualify for the maximum credit.

About a quarter of children nationwide do not qualify for the maximum $2,000 credit because of their parents’ income. That includes a third of rural children; half of kids with a single parent; 40% of Black and Hispanic kids; and 90% of kids in households below the federal poverty level, which is about $30,000 per year for a family of four.

“We have programs for folks who struggle financially, but nothing replaces having your own funds to solve your own problems,” said Mercedes Elizalde, director of advocacy at Latino Network, a Latino-led advocacy organization based in Portland, Oregon.

Her organization advocated for Oregon’s new child tax credit, which gives an annual benefit of up to $1,000 per child up to age 5 for families who earn up to $30,000 per year. She said the Latino communities her organization supports tend to have a high proportion of families with young children.

“Having a tax credit that is specific to lower-income families and specifically helps families with multiple children is really beneficial when we know a two-kiddo household in our community is still pretty common,” Elizalde said.

She said she expects to see families use the funds for basic needs like food, clothes for school and utility bills.

“This is a way of buying shoes when their kiddos outgrow them or being able to cover a copay for a doctor’s visit,” she said. “It’s those little bits of money that are hard to plan for because you’re not always sure when you’re going to need them.”

Helping low-income families

Several states creating or expanding child tax credits have specifically targeted low-income families that fall through the gap in federal eligibility requirements.

“It’s a proven intervention,” said Minnesota Democratic state Rep. Aisha Gomez, who chairs the House Taxes Committee. Her committee put forward the child tax credit bill that became law earlier this year. “Poor people aren’t poor because they don’t work hard. Giving a little bit of extra money to folks who are experiencing poverty and aren’t being taken care of in our economy works, so we were happy to pick up where the feds unfortunately left off.”

Minnesota now offers a tax credit of $1,750 per child under 18 for single parents with incomes below $29,500 per year and married parents making below $35,000. The credit was passed as part of an omnibus tax bill that received no Republican support, but Gomez said she’d like to think if the tax credit had been a stand-alone bill that it would have received some GOP votes.

“Child poverty is one of those issues where I think there’s pretty widespread agreement that we have a role as the government to intervene when our system is failing families so acutely,” she said.

“What we’ve noticed is not only is there a huge explosion of interest [from states] in creating child tax credits in the last two years,” said the Center on Poverty and Social Policy’s Curran, “but there’s been interest in trying to craft them in a way that fixes some of the gaps the federal credit has historically had.”

Curran said her organization has been contacted by lawmakers in several states who said they were interested in child tax credits because they saw the significant poverty reduction that came from the federal expansion: “That really caught peoples’ attention.”

In nearly every state, a combination of the existing federal tax credit and a state credit up to $2,000 would slash child poverty rates by at least a quarter, according to an analysis from the Institute on Taxation and Economic Policy.

Elizalde said Latino Network will focus its efforts now on making sure people know about the new tax credit so they can take full advantage.

“This is going to be very impactful,” Elizalde said. “In a couple of years, we hope we can go back to the legislature and say, ‘Let’s increase that income cap and help more families.’”

This article is republished from Stateline, part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact editor-in-chief Scott S. Greenberger at [email protected].

Midwife Stephanie Mitchell, who is attempting to open a birth center in Alabama and has sued the state, speaks at the Mothers of Gynecology monument in Montgomery, Ala., this month. Supporters say such centers could improve birth outcomes in the South, which has some of the highest maternal and infant mortality rates in the country. Anna Claire Vollers/Stateline

When Katie Chubb announced in 2021 she was planning to open a freestanding birth center in Augusta, Georgia, it seemed like everybody in town was excited about it.

She met with local physicians and nurses who said they would welcome her Augusta Birth Center as a provider of midwifery services for low-risk pregnancies. Hundreds of people signed the interest form on her website. She met with the head of obstetrics at University Hospital (now Piedmont Augusta), located less than a mile from the proposed birth center location, who responded positively, she said.

But when Chubb submitted her 800-page application to the state health department for a so-called Certificate of Need — a requirement to open a licensed birth center in Georgia — she discovered that not everybody in town was enthusiastic about the Augusta Birth Center.

Two local hospitals, including the one she’d met with, filed letters of opposition with the state. They cited several concerns, including a belief that the center hadn’t demonstrated its services were needed in the community. Those hospitals, plus a third in the area, refused to sign a written agreement with Chubb saying they would accept emergency transfers from the birth center. As a result, the state?denied?Chubb’s application.

The property in downtown Augusta that she’d planned to purchase for the birth center remains vacant and filled with weeds, since the sale was contingent upon her receiving state permission to open. With the future of the business uncertain, her main funder backed away.

The South has long had poorer birth outcomes than the rest of the country. Most of the highest maternal and infant mortality rates in the nation are in Southern states, which tend to have higher rates of poverty and the types of health conditions — such as high blood pressure — that make pregnancy more dangerous. Access to care is thinning out: More than half of rural hospital closures over the past two decades have been in Southern states.

Supporters say birth centers can help improve that record. Nationwide, birth alternatives such as freestanding centers and midwifery care have surged in popularity, particularly since the COVID-19 pandemic prompted increased interest in out-of-hospital birth options. The number of birth centers nationwide has doubled over the past decade, while midwife-attended births now account for about 12% of all births.

But the South lags the rest of the nation in offering birth alternatives, in part because of regulatory roadblocks, such as the transfer agreements with area hospitals that thwarted Chubb.

Hospital and physicians’ groups in the South say such rules are necessary to protect the health and safety of women and babies. Critics counter that doctors and hospitals are more interested in preserving their monopoly on maternal care.

In Chubb’s case, the state regulatory board denied her application despite concluding that there was a need for her birth center’s services and that the center would offer “a low cost, high quality alternative” for maternal health in the area.

“A week before the deadline, [the hospitals] went quiet,” said Chubb, who works as a personal trainer focused on prenatal and postnatal exercise and who is currently a nursing student. “We’ve tried to contact the hospitals multiple times, even since they switched management. And yet we still can’t open because the hospitals want to block us.”

Piedmont Augusta did not answer requests for comment. Augusta University Health did not respond in time for publication.

Chubb has sued the state, challenging the constitutionality of the state’s Certificate of Need law. The case is ongoing.

“If we’re not going to do it, nobody’s going to do it,” she said. “You’ve got to have someone who’s tenacious and has the resources to go after this.”

A ‘de facto ban’

A similar situation is unfolding In Alabama, where three women who want to run birth centers sued the state health department this month, claiming it has created a “de facto ban” on birth centers. Mississippi and Kentucky, like Georgia, also have requirements that effectively let hospitals veto birth centers from opening by refusing to sign transfer agreements.

Dr. Heather Skanes opened Alabama’s first freestanding birth center last fall in Birmingham. She hoped the birth center would represent a leap forward in improving access to maternal health care in a state that’s long had among the nation’s highest rates of maternal and infant mortality.

“I opened my center because there is a maternal and infant health crisis in Alabama which is disproportionately affecting Black women and infants,” said Skanes, who is Black and who opened her center in a majority-Black area of her native Birmingham.

About six months after the center’s first delivery — a 6-lb., 12-oz. baby girl who became Alabama’s first baby born in a freestanding birth center — the state health department came calling.

Skanes said a department representative informed her that by holding deliveries at the birth center she was operating an “unlicensed hospital.” Alabama does not have state regulations for birth centers; the health department has been working on a proposed set of regulations for the past year.

Skanes said she was told to stop accepting new patients and to arrange for her existing patients to give birth elsewhere. A representative from the Alabama Department of Public Health declined to comment on the birth center regulatory process aside from a memo issued earlier this year.

“At no point did the department say there had been any complaints about the safety or quality of the center’s care,” Skanes said. Her center had hosted more than a dozen births before she had to shut the doors, and, she said, it had a perfect safety record. “I was shocked that we would be forced to stop providing the midwife-led care that was working well for our patients and our community. Having to turn patients away has been devastating.”

Earlier this week, Skanes joined with two other women who are also attempting to open birth centers in Alabama — Dr. Yashica Robinson, an OBGYN in North Alabama, and Stephanie Mitchell, a licensed midwife in Alabama’s rural and economically disadvantaged Black Belt region — to sue the Alabama Department of Public Health over what they see is a de facto ban on birth centers.

“The department is refusing to allow birth centers to operate in Alabama without having a hospital license, but at the same time the department is making it impossible for any birth center to even apply for such a license,” said Whitney White, staff attorney with the American Civil Liberties Union (ACLU), which is representing the birth center owners and their co-plaintiff, the Alabama affiliate of the American College of Nurse-Midwives.

A representative of the Alabama Department of Public Health said the department had not yet had time to review the lawsuit fully and would not otherwise comment on active litigation.

Department leadership, dominated by the state’s private physicians’ association, has a long history of opposing the expansion of midwifery practice in Alabama.

The Alabama Department of Public Health is governed by the State Board of Health, which is by law composed of all 7,000 members of the state’s largest private professional association of physicians, the Medical Association of the State of Alabama. The state law granting that authority is a Reconstruction-era mandate that places the state agency squarely under the control of a private organization.

The medical association has historically lobbied against legislation that would expand consumer access to midwives in Alabama. Members of the medical association also comprise the majority of seats on the 16-member State Committee of Public Health, which oversees and regulates public health matters in Alabama, including hospital licensing.

Mitchell, the midwife working to open a birth center in Alabama’s Black Belt region, said some of the women she sees travel 75 to 100 miles roundtrip to receive prenatal care because of the lack of hospitals and obstetric providers in the area. The region is federally designated as medically underserved, which means it has too few primary care doctors and high rates of poverty and infant mortality.

“Expanding access to midwifery and birth centers in places like Sumter County is a life-or-death situation for many families,” she said.

Hospitals defend requirements

At least 34 states operate Certificate of Need (CON) programs, which vary by state but are designed to control the number of health care resources in an area by requiring a hospital or health system to prove the community needs a certain service before the provider builds or expands it.

In their letters of opposition to Chubb’s Augusta Birth Center, two Augusta-area hospitals cited several reasons, including the center’s lack of written transfer agreements, which the hospitals refused to sign.

The Augusta University Medical Center, in its opposition letter, noted the birth center “has garnered opposition from two of the hospitals precisely because it will not function well as part of the established system of perinatal care” and recommended the birth center “work much more closely with the local hospitals and physicians.”

“Instead,” the letter said, “it is proposing a project that will only take from the existing hospitals.”

Chubb proposed charging about $5,000 for an uncomplicated birth, far below the $15,000 at Augusta University Medical Center or the $7,300 at University Hospital, according to the health department’s decision letter. Both hospitals questioned the financial feasibility of the birth center’s proposed charges in their letters of opposition.

Chubb, in her lawsuit against the Georgia Department of Community Health, is being represented by the Pacific Legal Foundation, a national public interest law firm that often champions conservative or libertarian causes.

“We’re opposed to Certificate of Need laws of any variety, but we believe the ones in Georgia for birth centers are worse because they give an absolute veto to competitors who simply don’t want the competition,” said Joshua Polk, an attorney at Pacific Legal who is working on Chubb’s case.

Kentucky’s CON law is the primary reason that state has no freestanding birth centers, said state Sen. Shelley Funke Frommeyer, a Republican who filed one of the bills during Kentucky’s 2023 legislative session that would have exempted freestanding birth centers from CON requirements.

“We want to promote and inspire people to take responsibility for their health, but the hospitals aren’t giving us the freedom to do that,” said Funke Frommeyer. “The hospital association and our hospitals are battling to restrict this offering.”

Hospital officials from around Kentucky testified against removing the CON requirement for birth centers and the Kentucky bills ultimately failed.

Jim Musser, senior vice president for policy and government relations at the Kentucky Hospital Association, pointed out that three certificates of need have been granted for freestanding birth centers over the past 20 years, though those centers were ultimately never built.

The hospital association’s position is that freestanding birth centers should be overseen by obstetricians, staffed by certified nurse-midwives and “closely aligned with a hospital” via a written transportation agreement or being operated by the hospital, he said.

“Kentucky has some of the worst infant and maternal mortality rates in the country and we want to make sure we’re doing things to improve that and not jeopardize the lives of mothers and children,” Musser said.

Earlier this year, South Carolina passed a law that eliminated its CON requirements for nearly all health care facilities, including birth centers. And West Virginia amended its CON law to exempt hospitals and birth centers.

Roadblocks

Months before filing the lawsuit in Alabama, Skanes and the other birth center owners had joined with midwives, nurses and birth advocates to protest the state health department’s proposed birth center regulations as being out of step with nationally recognized standards for birth centers and so restrictive that they essentially required birth centers to be “mini labor and delivery departments,” Skanes said.

Among the department’s proposed regulations was a requirement that birth centers have a written transfer agreement with a nearby hospital. It’s not part of a CON program, but just like in Georgia, the requirement would give hospitals veto power over whether birth centers can open and operate in their service areas.

Mississippi also requires birth centers to obtain written transfer agreements. Getty Israel, founder of Sisters in Birth Inc., a women’s health clinic in Jackson, is trying to open the state’s first birth center.

Her main roadblock has been funding, she said. She has a partnership with a local hospital, thanks to connections and relationships she’s built, she said, but called the written transfer requirement an “unnecessary burden” for birth centers.

“It needs to be removed, but it’s probably going to take a lawsuit to do it,” she said. “You can’t be docile when you’re trying to change the infrastructure. There are interests that don’t want to see midwives win.”

Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence.?