Montana passes significant health policy changes in controversial session

Republican leaders' banishment of a transgender lawmaker from floor debates in the recently ended Montana legislative session seized the nation's attention. It also overshadowed significant health policy changes and historic levels of health care spending.

The session likely will be remembered for GOP leaders removing Democratic Rep. Zooey Zephyr, one of two transgender representatives in the Capitol, from House floor debates. That the ban has distracted from approvals of unprecedented increases in Medicaid mental health and provider reimbursement rates is unfortunate, said Mary Windecker, executive director of the Behavioral Health Alliance of Montana.

"We've never talked about these kinds of numbers before," Windecker said.

Lawmakers also passed major bills related to abortion, behavioral health, transgender rights, workforce issues, and insurance requirements. Some, like the Medicaid reimbursement hikes, were greeted with cheers. Others, with threats of legal challenges.

Medicaid Reimbursement

Windecker said several factors provided momentum for Medicaid provider rate increases, including the Covid-19 pandemic and pressure from providers and facilities after the legislature cut rates to the bone in 2017 amid a budget shortfall.

Back then, lawmakers cut nearly $50 million from the Department of Public Health and Human Services budget, a devastating blow for providers, with long-term ramifications. Last year, 11 nursing homes in Montana closed their doors, citing low provider rates as a chief cause.

By contrast, lawmakers went into this session with a $2.5 billion surplus in the state budget, which lawmakers and providers said should be used to rebuild the state's health care system.

The legislature commissioned a study after the last session to look at Medicaid provider reimbursement rates in areas like behavioral health, long-term care, and developmental disability services. Throughout the session, lawmakers heard hours of testimony from providers and patients asking lawmakers to fully fund the provider rates the study identified as covering the average cost of services.

During the last discussion on the state budget, on May 2, Republican Rep. Llew Jones — chair of the House Appropriations Committee — lauded the two-year budget for exceeding the 100% benchmark for provider rates.

Democratic Rep. Mary Caferro made a distinction between the next two fiscal years. She said the funding falls short of the benchmark in the first year of the budget — by about $10 million.

"But you know what, it's nothing to shake a stick at," Caferro said. "I'm very, very happy that we got this far."

Still, it will be important to watch how the boosted provider rates help the supply of services, what that means for caseloads, and whether the health department can start getting people off waitlists, said Montana Budget and Policy Center Executive Director Heather O'Loughlin.

According to Rose Hughes, executive director of the Montana Health Care Association, which advocates for nursing homes, the provider rates for nursing homes increased from $209 per patient per day to $262 the first year of the next biennium, and $278.75 the next.

"They've done a lot and the problem is that the challenges are also huge, and the workforce issues are huge, and it's going to take time to see," Hughes said. "I hope it works. I hope what they've done works."

Abortion

Lawmakers passed 10 bills restricting abortion, five of which Republican Gov. Greg Gianforte signed in a ceremony on May 3.

Since the Supreme Court overturned Roe v. Wade in June 2022, Montana has been one of 20 states and the District of Columbia to uphold the right to abortion. Abortion access is protected through the privacy clause of the state's constitution. Bills championed by the Republican supermajority chipped away at that protection and are expected to be challenged in court.

Among the new laws, Senate Bill 154 takes the right to an abortion out of the constitutional privacy clause in an attempt to remove the legal justification for allowing continued abortion access. At the bill signing, Gianforte said this was one of the most important bills of the session.

House Bill 625 is a version of a ballot measure, called the "born alive" referendum, that Montanans rejected in November 2022. HB 625 requires health care providers to give care to an infant born alive after an attempted abortion or face a fine and up to five years in prison.

Another bill, first introduced by the state health department, requires prior authorization and additional documentation for abortions to be covered by Medicaid or the Children's Health Insurance Program. The health department adopted an administrative rule that would have the same effect, but a state judge has temporarily blocked the rule amid a legal challenge.

HB 575 prohibits the abortion of a "viable" fetus. Viability in the bill is presumed at 24 weeks and defined as the ability of a fetus to live outside the womb, including with artificial aid.

Another bill bans dilation and evacuation procedures, one of the most common ways of ending a pregnancy after 15 weeks.

Transgender Rights

SB 99, which prohibits certain surgical and medical treatments for youth with gender dysphoria, is the bill that sparked Zephyr to tell lawmakers that if they voted for it, and Gianforte's amendments to it, they would have "blood on [their] hands," referring to elevated rates of suicide among trans youth.

Gianforte signed SB 99 into law, as well as HB 361, which allows a student to call another student by a name or refer to them with pronouns they don't use without legal disciplinary action. Opponents refer to it as a "deadnaming" bill.

Lawmakers also passed a bill to ban minors from attending drag shows and restricting where they can be held that was ultimately amended to replace "drag" with the descriptor "adult-oriented." Another bill headed to Gianforte's desk defines sex in Montana law in a way that opponents say erases transgender, nonbinary, and two-spirit people from Montana code. The sponsor, Republican Sen. Carl Glimm, said the point is to distinguish sex from gender. That bill was to be transmitted to the governor.

Behavioral Health Investment

Gianforte and lawmakers from both parties started the session promising investment in behavioral health, including building community-based services and upgrading the beleaguered Montana State Hospital, which the governor outlined as one of his priorities.

Republican Rep. Jennifer Carlson's HB 29, which would stop involuntary commitment of most patients with Alzheimer's, traumatic brain injuries, or dementia to the Montana State Hospital, is awaiting a decision from the governor.

Gianforte also announced a $2.1 million grant to fund free, optional mental health and substance abuse screenings for schools statewide. The grant will also support same-day services for students assessed as being at high risk for suicide.

Another bill, which passed in the final hours of the session, would create a $300 million fund for behavioral health and set up a commission to oversee the funding allocation.

There was also some tug of war over Gianforte's Healing and Ending Addiction through Recovery and Treatment, or HEART, fund.

One bill, sponsored by Caferro, makes it so youth suicide prevention programs can benefit from HEART funds. Carlson sponsored her own HEART fund bill, which requires reporting on how HEART money is used. Both bills passed by wide margins and were signed into law.

Access and Workforce

Another one of the lawmakers' goals at the beginning of the session was expanding patient access to health care.

The governor signed HB 313 into law, allowing physician assistants to practice independently. Gianforte said in a statement that it will reduce patients' barriers to health care, particularly in rural areas.

SB 112, also signed by the governor, expands pharmacists' ability to prescribe certain drugs and devices that do not require a new diagnosis or are "minor and generally self-limiting."

Lawmakers passed HB 101, which would allow behavioral health providers licensed in another state to practice in Montana.

Insurance Requirements

A handful of new insurance requirements are also on track to become law.

One bill waiting on the governor's signature would cap the cost of insulin copayments at $35 for a month's supply.

Another diabetes-related bill would require coverage of 20 visits of diabetes training and education in the first year of a patient's diagnosis and 12 subsequent follow-ups. Meanwhile, a bill that would have required insurance coverage of continuous glucose monitors died in the Senate.

Two bills signed by the governor require eyedrops and "minimum mammography" and other breast examinations to be covered by insurance.

A bill that would require insurance to cover 12 months of birth control is awaiting transmittal to the governor's office, as is one that would require insurance coverage of fertility preservation for cancer patients.

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