SCHIP Expansion: More Birth Control for Minors, Less Involvement by Parents

In their effort to override the President's veto of legislation to expand the State Children's Health Insurance Program (SCHIP), Members of Congress have added to the "compromise" legislation (H.R. 3963) two little noticed provisions that would undermine parents' right to consent to--or even know about--medical care given to their children through school-based health clinics. Such "medical care" could involve as intimate and delicate a matter as giving contraceptives to children. If the proposed legislation goes into effect, federal laws and regulations would make contraception available to millions of children, for free, while prohibiting doctors and schools from informing the children's parents.

SCHIP Pays for Family Planning

Currently, SCHIP allows each state to provide "prepregnancy family planning services and supplies" [1] to eligible children, and then pass on the bulk of the costs to the federal taxpayer. Within a few years of the passage of SCHIP in 1997, nearly every state had taken advantage of this new avenue of funding to offer a wide range of contraceptive services to children, including oral contraceptives, contraceptive implants, and "the morning-after pill."[2] Many of these states also included provisions in the programs they designed that made it illegal to notify parents when their children requested contraceptive services.[3]

The Medicaid Connection

While, by itself, SCHIP allows states to fund family planning services for teens, according to the way it is frequently implemented, in much of the country it would go even further and require such funding if H.R. 3963 becomes law. In as many as 32 states and the District of Columbia,[4] SCHIP works as an expansion of Medicaid; state officials simply add to their Medicaid programs children who were previously ineligible under the original Medicaid rules. In those states, therefore, the proposed SCHIP expansion bill would also basically expand Medicaid--along with all of its existing rules and regulations.

Since 1972, Medicaid statutes have mandated that all states provide contraceptives and other family planning supplies to all "individuals of child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies."[5]

Medicaid has been the number one source of taxpayer funding for contraception and other family planning supplies and services nationwide, accounting for 61 percent of all public funds spent on contraception in 2001.[6] One out of every eight women of reproductive age has used Medicaid to pay for services and supplies related to family planning.[7] The proposed SCHIP expansion of Medicaid into the middle class would be taking what is already the federal government's largest source of family planning funds and inviting even more children to join--400,000 more, according to the Congressional Budget Office estimate.[8]

Parental Notification Problems

Under the language of the latest SCHIP legislation, many more children would be able to receive contraception without their parents' knowledge or consent. According to federal law, those who provide Medicaid benefits are prohibited from sharing "confidential" information about the patients, regardless of the age of the patient.[9] Doctors and school nurses who care for children covered under Medicaid are not allowed to inform parents about the "confidential" care being given unless the child signs a consent form. In many states, because the SCHIP expansion of Medicaid is accompanied by an extension of the regulations that accompany Medicaid, all eligible children who qualify for SCHIP funds can get contraceptive services without letting their parents know about it.

Under the proposed SCHIP expansion, where Medicaid becomes the vehicle for state SCHIP coverage, it would be easier and less expensive for children to engage in risky sexual behavior, and parental and community oversight would be weakened. Medicaid requires the states to provide contraception to each eligible minor, regardless of age, who is sexually active and requests contraception. Under Medicaid-SCHIP, any eligible child who has reached puberty has a legal right to contraception[10] and a legal right to confidentiality.[11] This legal and regulatory regime endures, even though robust findings in the professional literature clearly show that teen sexual activity is fraught with serious risks including health risks.[12]

Under the language of the SCHIP "compromise," even more taxpayer dollars would be available for third-party contractors such as Planned Parenthood. If anything, Congress should intensify oversight of the existing family planning clinics. According to recent media accounts, certain clinics have failed to report statutory rape, in violation of local mandatory reporting laws,[13] or have been caught explicitly encouraging children to lie about their age to avoid the reporting laws.[14]

School-Based Clinics: Sections 506 and 616

Two provisions of the "compromise" bill, sections 506 and 616, would allow SCHIP and Medicaid funding to go to school-based health clinics, making it easier and cheaper to provide free contraception to children without their parents' knowledge.

Over the last several months, there has been an intense debate about several Medicaid regulations, which had the effect of restricting the use of Medicaid and SCHIP funds used in school-based clinics. Under current rules, most school-based clinics are not eligible for federal reimbursement for contraceptives or other health care, unless they meet rigorous criteria.[15] Pending federal regulations--designed to fight billions of dollars worth of state Medicaid fraud[16]--would make the eligibility criteria even more rigorous.[17]

In May 2007, a little-noticed provision of the catch-all "U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007" was used to delay the implementation of such regulations.[18] The House Committee on Government Reform and Oversight, held heated hearings on the regulations on November 1.[19] The SCHIP legislation before Congress would annul all the recent regulations[20] and explicitly allow school-based clinics to receive SCHIP and Medicaid funds, under which family planning services are an eligible expenditure.[21]

Together, these provisions would have the effect of lifting many of the federal restrictions governing the use of Medicaid or SCHIP funds in health clinics that are "school-based." This would make it easier for clinics and third-party contractors such as Planned Parenthood[22] to distribute contraceptives in the schools at a discounted rate[23] and--in those states in which SCHIP extends Medicaid coverage--without parental knowledge.

Conclusion

The SCHIP "compromise" would make Medicaid-based family planning programs available to potentially millions of children. It would widen the scope of the same Medicaid "confidentiality" rules that make it illegal for a child's doctor or health care provider to contact the parents of covered children when they notice the children are seeking contraceptive services or engaging in risky sexual behavior. Finally, the legislation would nullify a number of regulatory barriers, making it easier to distribute taxpayer-funded contraception directly to children through clinics based in the schools.

On SCHIP, Congress needs to go back to the drawing board and design a better policy for the coverage of uninsured children. Such a policy would expand, not contract, parental freedom over their children's coverage. It would expand, not contract, the choices available to families. It would deeply respect, rather than cavalierly dismiss, the ethical, moral, and religious convictions of Americans in the provision of health services for their children.

Daniel Patrick Moloney is Senior Policy Analyst in the DeVos Center for Religion and Civil Society at The Heritage Foundation.