Rep. Williams And PRH: Insurers Must Consider Risks In New Landscape

NEW YORK, Jan. 25 (TNSgov)(TNScapv) -- Physicians for Reproductive Health posted the following news release and letter:

Representative Nikema Williams (D-GA), along with 17 Members of Congress, sent a letter to three major health insurance carriers expressing concern about various Provider/Quality Incentive Programs, which raise serious concerns about the potential for criminalization of both health care providers and patients seeking pregnancy-related care.

Under these Provider/Quality Incentive Programs health care providers are asked to report pregnancy related health information in exchange for monetary compensation. While these programs and incentive forms may appear innocuous, they have the potential to put patients and providers at great risk, particularly in this current moment.

The letter states:

"This is not a theoretical concern. For decades, pregnant people across the country have been arrested, subjected to prosecution, detained, sent to jail, separated from their children, and have had medical interventions forced upon them because of their pregnancy outcomes, including for self-managing their abortions or seeking care after experiencing a miscarriage. Our country has a long history of attempting to control the reproduction and building of families, especially in communities of color. The people most likely to be surveilled, targeted, and harmed by our nation's carceral system are people with low incomes and Black, Indigenous, and other people of color. Many of the documented cases where pregnant people were subjected to unjust criminalization occurred even before the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, which stripped away the constitutional right to abortion. As we have watched an already devastating abortion access crisis become far worse, and the threats of criminalization for both providers and patients increase as states move to ban abortion, it is more important than ever to protect people who seek essential health care and the providers that care for them from the threat of criminalization."

In addition, Physicians for Reproductive Health coordinated a broad health care provider sign-on letter. Signed by over 175 providers, the letter echoes the concerns of Members of Congress stating:

"Recent data from If/When/How revealed that 39% of people who were criminally investigated or prosecuted for suspicion of self-managing their abortion or experiencing pregnancy loss came to the attention of law enforcement after seeking care and being reported by health care providers. As providers, we are committed to our oath to "first do no harm" and, as such, refuse to participate in actions that may lead to the criminalization of our patients."

The letter continues:

"We agree that there is a role for both providers and insurance providers in addressing our nation's maternal mortality crisis. At the same time, we must understand that we are operating in a new legal landscape. In this moment, where providers and patients are facing threats of criminalization based on pregnancy outcomes, a deeper analysis of these programs raise serious concerns about data privacy and risks for criminalization."

A cohort of Florida state legislators sent a similar letter to Florida health insurance companies expressing their deep concern about the use of Provider Incentive Programs at Medicaid Managed Care Organizations.

The letter states:

"As Medicaid Managed Care Organizations that insure 4.6 million Floridians, your company is positioned to share patient data with the state of Florida. Although HIPAA protects health information from being shared or used without a patient's written permission, we know these protections are not strong enough to protect pregnant people when exceptions to HIPAA are overly broad. This raises concern given the intersection of the population enrolled in Medicaid and those most likely to be criminalized for pregnancy outcomes."

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January 23, 2023

To: Karen S. Lynch, President and Chief Executive Officer, CVS Health, 1 CVS Drive, Woonsocket, RI 02895

Kim A. Keck, President and Chief Executive Officer, Blue Cross Blue Shield Association, 1133 Southwest Topeka Boulevard, Topeka, KS 66629

Brian Thompson, Chief Executive Officer, United HealthCare, 1100 Optum Circle, Eden Prairie, MN 55344

Dear Ms. Lynch, Ms. Keck, and Mr. Thompson:

As Members of Congress, we write to express our concern about the Provider/Quality Incentive Programs ("Incentive Programs")/1 that have been implemented by each of your companies. Under the Incentive Programs health care providers are asked to report pregnancy related health information in exchange for monetary compensation. These programs raise serious concerns about the potential for criminalization of both health care providers and patients seeking pregnancy-related care, particularly in this moment.

This is not a theoretical concern. For decades, pregnant people across the country have been arrested, subjected to prosecution, detained, sent to jail, separated from their children, and have had medical interventions forced upon them because of their pregnancy outcomes, including for self-managing their abortions or seeking care after experiencing a miscarriage. Our country has a long history of attempting to control the reproduction and building of families, especially in communities of color. The people most likely to be surveilled, targeted, and harmed by our nation's carceral system are people with low incomes and Black, Indigenous, and other people of color. Many of the documented cases where pregnant people were subjected to unjust criminalization occurred even before the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, which stripped away the constitutional right to abortion. As we have watched an already devastating abortion access crisis become far worse, and the threats of criminalization for both providers and patients increase as states move to ban abortion, it is more important than ever to protect people who seek essential health care and the providers that care for them from the threat of criminalization.

These Incentive Programs and pregnancy notification report forms2 are seemingly innocuous, but have the potential to put patients and providers at great risk. Under each program a provider may submit a form to each of your respective health insurance companies revealing a patient's pregnancy and later be subjected to criminal investigation or prosecution because of suspicions around the outcomes of the person's pregnancy. An additional concern is there is no information or context for each program about how this information will be protected or what it will be used for. Moreover, there is no indication that your companies have considered the legal landscape and risk as it relates to providers who provide full spectrum reproductive health care. This is of particular concern as states where these Incentive Programs have been implemented move to pass extreme abortion restrictions.

The risk associated with these Incentive Programs for providers is great, but at even greater risk are patients whose pregnancy outcomes may be criminalized after they have sought pregnancy related care. Leading medical organizations like the American Medical Association (AMA) and American College of Obstetricians and Gynecologists (ACOG) have universally opposed the criminalization of pregnancy outcomes as evidence clearly shows such criminalization undermines the patient-provider relationship and further creates distrust in our medical systems. Provider reporting and documentation, as required by each Incentive Program, could become a primary pathway to pregnancy criminalization. Recent data collected and analyzed by If/When/How, shows us that almost half of people who were criminally investigated or prosecuted for suspicion of managing their abortion or miscarriage came to the attention of law enforcement as a result of interactions with health care providers. This is supported by data from the National Advocates for Pregnant Women, which notes the long history of healthcare providers wrongly reporting pregnant people to state authorities for actions they think may be illegal or outcomes they disapprove of, including substance use during pregnancy. An additional concern is the use of information requested in forms, such as Aetna's Incentive Program Form, which specifically requests office visit notes to be included in the provider's submission. This information could be used by law enforcement to prosecute individuals for their pregnancy outcomes and it is not evident how insurance companies intend to use this information, how providers and patients will be protected, and in what circumstances this information would be disclosed.

Given these concerns we ask you to consider the broad implications of having Incentive Programs such as this given the current legal landscape and how you will protect the information collected. We specifically ask you to consider the following: the intended purpose of your Provider Incentive Programs and pregnancy notification forms; how you have or will use the data you receive from these forms; the systems that are in place to protect sensitive information you receive from these forms; why each of you, respectively, chose a provider incentive program for pregnancy notification over other ways of providing policyholders with resources on prenatal and pregnancy care; how you intend to protect your providers who report this information in states where they are subject to highly restrictive abortion bans or where abortion is illegal; how you intend to support patients who are criminalized because of this disclosure; and how you have or will communicate the Incentive Program to each of your respective policyholders, and if so, how.

Thank you for your attention to this matter.

Sincerely,

Nikema Williams, Member of Congress

Veronica Escobar, Member of Congress

Barbara Lee, Member of Congress

Danny K. Davis, Member of Congress

Gwen S. Moore, Member of Congress

Ayanna Pressley, Member of Congress

Ted Lieu, Member of Congress

Julia Brownley, Member of Congress

Darren Soto, Member of Congress

Judy Chu, Member of Congress

Lois Frankel, Member of Congress

James P. McGovern, Member of Congress

Robin L. Kelly, Member of Congress

Suzan K. DelBene, Member of Congress

Raul M. Grijalva, Member of Congress

Sydney Kamlager-Dove, Member of Congress

Lori Trahan, Member of Congress

Seth Moulton, Member of Congress

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Provider Letter In Response to Pregnancy Notification Incentive Programs

As health care providers, we are concerned that health insurance companies are both continuing the use of, and launching new, monetary incentive programs that ask providers to notify them of our patients' pregnancy. It is disappointing and extremely concerning that insurers would incentivize providers to share private medical data in exchange for monetary compensation, seemingly without consideration for how such information will be protected and without the consent of our patients. In this moment when providers and pregnant people are facing an increased risk of criminalization, additional analysis and consideration of the legal landscape is essential to protect both patients and providers. As physicians and health care providers, our responsibility is first and foremost to our patients. We will always seek to act with their best interest in mind, providing them with the care they want and need.

Aetna, Blue Cross Blue Shield, and UnitedHealthcare are just a few of the health insurers with incentive programs for obstetricians to report a patient's pregnancy at the first pre-natal visit. At first glance these programs, which we acknowledge have existed for years, appear to be admirable in their attempt to improve maternal health by increasing provider uptake of Medicaid patients and connecting pregnant people to resources and support. We agree that there is a role for both providers and insurance providers in addressing our nation's maternal mortality crisis. At the same time, we must understand that we are operating in a new legal landscape. In this moment, where providers and patients are facing threats of criminalization based on pregnancy outcomes, a deeper analysis of these programs raise serious concerns about data privacy and risks for criminalization.

We are concerned that insurers have not disclosed how the information collected through these programs will be used, stored, or protected. Unfortunately, it is not unimaginable that this information could be used to monitor and infer pregnancy outcomes based on insurance claims. We cannot dismiss this as unlikely when we know police and prosecutors are using digital evidence to target and criminalize people for their pregnancy outcomes. Particularly concerning is that many incentive programs are targeting patients enrolled in care through Medicaid Managed Care Organizations. As a result, the people at greatest risk for being reported through these incentive programs are more likely to be people with low incomes, and Black, Indigenous, and people of color. Research from National Advocates for Pregnant Women found that Black, Brown, low-income, and rural white women are targets of arrests related to pregnancy or pregnancy outcomes.

At a time when providers and patients are rightfully fearful of being criminalized for providing essential health care or for supporting the management of pregnancy complications, we are disappointed that insurers would ask providers to document and share detailed health information, sometimes including prior pregnancy outcomes, about a patient's pregnancy. Moreover, we recognize that the criminalization of pregnant people is not new. There is a long history of pregnant people being criminalized and reported to law enforcement and other state authorities. As a result, pregnant and postpartum people have been wrongly subjected to trauma, family separation and incarceration. Recent data from If/When/How revealed that 39% of people who were criminally investigated or prosecuted for suspicion of self-managing their abortion or experiencing pregnancy loss came to the attention of law enforcement after seeking care and being reported by health care providers. As providers, we are committed to our oath to "first do no harm" and, as such, refuse to participate in actions that may lead to the criminalization of our patients.

As health care providers who have trained for many years to provide prenatal, pregnancy and postpartum care, we hold the knowledge and medical expertise required to care for our patients and connect them with additional wanted or needed medical and social supports. Trust between patients and providers is critical to our ability to provide community grounded, patient centered care. Evidence shows that interpersonal trust improves medical outcomes. Without established trust, our patients cannot feel comfortable seeking care or speaking with us about their health needs and concerns. It is unclear whether insurers are communicating about these pregnancy notification programs to policyholders and therefore enrollees are likely unaware these programs exist.

This move by health insurers is the latest in a long line of state and national measures that put pregnant people at risk of criminalization. As health care providers who have devoted our lives to caring for people, we stand against any efforts that would cause harm to our patients, their families, and the community. We are asking health insurers across the country to reevaluate these programs and consider the varying levels of legal risk patients and providers face depending on the state where they live, receive, and provide care, and to share how they will make adjustments to these programs accordingly. With the constitutional right to abortion eviscerated and digital data being used in criminal investigations and prosecution against pregnant people, health insurers must move forward with such programs thoughtfully. We look forward to continuing this dialogue so that all people can get the care they need.

Sincerely,

A. Miglani

Aaron Afran MD

Abigail Lowther, MD

Adeola Oni-Orisan, MD PhD

Aishat Olatunde, MD

Alecia Fields, DO

Alenna Beroza, Medical Student

Amanda Bryson, MD

Amelia Papadimitriou, MPH (2nd year MD student)

Amy E. Paris, MD, MS

Ana-Alicia Leonso, MD

Ann Schutt-Aine, MD

Anna Roselle

Ashley Jeanlus, MD

Assaf Yosha, MD

Atsuko Koyama MD, MPH

Avanthi Jayaweera, MD

Avery Bogart

Azmina Bhayani, MD

Beth Weinstock M.D.

Bhavik Kumar, MD MPH

Blythe Bynum MD

Blythe Bynum, MD

Brittany Jacob, MD

Caitlin Blau, DO

Camila Fontane

Cassie Atlas Stanzler, MD

Cassy Friedrich, MD

Chava Kahn, MD, MPH

Chelsea Faso, MD

Chelsea Recor MD,MPH

CHRIS CREATURA MD

Cindy Adam, MS, FNP-C

Clare Harney MD, MPH

Connor McNamee, MD

Dana Sussman, Acting Executive Director, Pregnancy Justice

David L. Eisenberg, MD, MPH, FACOG

Deborah Bartz, MD, MPH Assistant Professor in Ob/Gyn, Harvard Medical School

Deborah Glupczynski, MD

Debra E. Bright, M.D.

Diana N. Carvajal, MD, MPH

Diana Weihs, MD

Diana Wu, MD

Divya Shenoy, MD, MPH

Douglas Huber MD, MSc

Dr. Alhambra Frarey

Dr. Amy M. Autry

Dr. Amy Yosha

Dr. Bailey Cannon

Dr. Elissa Serapio

Dr. Jane Balbo

Dr. Joe Nelson, MD

Dr. Kara McElligott Park

Dr. Katrina Green, MD FAAEM

Dr. Marion Verp

Dr. Matthew Adkins

Dr. P. Osuji, MD

Dr. Rebecca Miller

Elise Berlan, MD. MPH

Elisha Jaeke, Medical Student

Elizabeth Harlan, MD, MPH

Emily Barker, MD

Emily Furnish, MD

Emily Greenspan, M.D.

Eneniziaogochukwu Okocha, MD

Eric Lynch

Erica Pettigrew, MD, JD, MPH

Erika Boothman, MD MPH

Eva Patil, MD

Evan Tamura, MD

Gabriela A. Aguilar, MD, MPH

Gopika Krishna MD

Hannah Sandt, MD

Hayley Dunlop, MPH

Heather Stevens MD

Hilary Rosenstein, MD

Holly L. Elgas, M.D.

Ivana Thompson, MD MSCI FACOG

Jade Ransohoff, MPH

Jameson Mitchell, MD Candidate

Jane Morris, MD

Jeanne Corwin MD

Jennifer Breznay, MD MPH

Jennifer Mullendore, MD, MSPH

Jennifer Tang, MD, MSCR, FACOG

Jenny Abrams, MD

Jenny Libien, MD PhD

Jesse Cole MD

Jessica Beaman, MD MPH

Jessica K. Lee MD MPH

Jessica Quade MD

Jiana Menendez, MD, MPH

Jill Hagey, MD; Complex Family Planning Fellow and OBGYN

Joan Budd, MD

Jolie Stocki

Joshua A Smith, MD, MPH

Joshua St. Louis, MD, MPH, AAHIVS; Family Medicine, Addiction Medicine

Julia Kooser medical student

Julie Amaon, MD

Kari Braaten, MD, MPH

Katharine Sznajder

Katie Mahoney

Kay Daniels MD

Kelly Pfeifer, MD

Kelly Thibert, DO, MPH

Kimiknu Mentore

Kristyn Brandi MD MPH FACOG

Lauren Hoogewerff, MD

Lauren Ondrejka, MD Candidate

Lauren Owens, MD, MPH

Lauren Roddy, MD, MSc

Leah Torres, MD MS

Lealah Pollock, MD MS

Leilah Zahedi-Spung, MD FACOG

Lindsay Blevins, PhD, Licensed Psychologist

Lin-Fan Wang, MD MPH

Lucia McLendon, MD

Mae Winchester, MD, FACOG

Margaret Glausser, MD

Margaux Lazarin, DO, MPH

Marsha Epstein MD MPH

Matthew Zerden, MD, MPH, FACOG

Mayra Hernandez, MD

Meera Shah, MD, MPH, MS

Meghana Kudrimoti, MS4

Miah Brawley MD

Michael A. Belmonte, MD

Michaela Rahimi, CNM DNP

Michele Gomez, MD (TEACH, MYA Network, The Period Pills Project)

Michelle Nichols, MD

Mollie Nisen, MD

Mugdha Mokashi, MD MPH, Ob/Gyn resident

Nancy Stanwood, MD, MPH

Nicole Muskett PA-C

Nicole Roselli, MD, MBA

Nicole Smith, PhD, MPH

Nika Vizcarra, MD, MS

Noah Nattell, MD MS FACOG

Noreen Singh, MD

Ololade Sanusi, MD

Pamela Merritt, Executive Director of Medical Students for Choice

Peg Johnston, Southern Tier Women's Health Services LLC

Physician, Durham, NC

Rachel Neal, MD

Rachelle Brilliant, DO, FAAFP

Rachna Vanjani, MD

Rathika Nimalendran, MD

Rebecca C. Amaru, MD FACOG

Rima Kopelman, MD

Robin Holmes, MD

Robyn Schickler, MD, MSc

Roma Amin, MD

Roya Yavari MD

Samantha Glass

Samantha Nandyal, D.O.

Sami Stroebel

Sara Imershein MD MPH FACOG

Sarah Dula, DO

Sarah Duncan, MD

Sarah Green, MD

Sarah Horvath, MD, MSHP

Sarah McNeil, MD

Shannon Louise Carr, MD MS FACOG

Shari Brasner, MD

Sharon Liner MD

Smita Carroll, MD, MBA

Stephanie Chen MD

Stephanie Long

Stephanie Wentzel, Medical Student

Talia Urdanigo, MD

Tanya Franklin, MD

Tara Gallant

Tracey Wilkinson, MD, MPH

Traci A. Kurtzer MD

Ushma Upadhyay, PhD, MPH, Professor University of California, San Francisco

Valerie French, MD, MAS

Veronica Rivera, MD

Victor Sta. Ana, MD

William B. Jordan, MD, MPH

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Original text here: https://prh.org/press-releases/rep-williams-and-prh-insurers-risks/