October 10, 2002

The Honorable Tommy Thompson
Secretary
Department of Health and Human Services
200 Independence Avenue, S.W.
Room 615-F
Washington, D.C. 20201

Dear Secretary Thompson:

Over the course of the past year, you have issued press releases, written letters, and responded to direct questions in both Senate and House hearings in support of passing legislation to provide health care coverage to pregnant women through the State Children's Health Insurance Program (SCHIP). You have repeatedly stated that you were proceeding with the regulation to expand SCHIP to "unborn children" only because legislation to expand coverage to pregnant women had not passed.

Your own regulation explicitly makes that very point and acknowledges that "gaps remain" and that a number of important health services for pregnant women, including postpartum care, are not provided for in the regulation. And yet, we now read in a letter from you to Senator Nickles dated October 8, 2002, that the "gaps" have somehow disappeared. As you write, "The proposed legislation, which has been pending in Congress for some time, would amend the SCHIP law so as to duplicate what we have already established as administration policy. I believe the regulation is a more effective and comprehensive solution to this issue.Therefore, there is no need for the Senate to pursue this legislation now."

Yet, your own regulation contradicts that statement and notes that "there are still gaps" and repeatedly points out those coverage gaps for pregnant women and children. With respect to care for women, under the regulation, it is explicitly stated that "there must be a connection between the benefits provided and the health of the unborn child." A whole range of health services to pregnant women during pregnancy and delivery could be potentially denied as a result. In the case of epidurals, for example, the best the regulation can say is that you "expect" coverage.

For postpartum care, the regulation explicitly states that any care during that period, including but not limited to hemorrhage, infection, episiotomy repair, C-section repair, family planning counseling, treatment of complications after delivery (including life-saving surgery), and postpartum depression, would be denied. As the regulation reads, "Commenters are correct that care after delivery, such as postpartum services could not be covered as part of [SCHIP], (unless the mother is under age 19 and eligible for SCHIP in her own right), because they are not services for an eligible child."

According to the Centers for Disease Control and Prevention (CDC), the United States ranks 21st in the world in maternal mortality. The major causes of which were hemorrhage, ectopic pregnancy, pregnancy-induced hypertension, embolism, infection, and other complications of pregnancy and childbirth. Again, health coverage for many of these conditions is denied under the regulation but not in S. 724. How then do you argue the regulation is "more effective and comprehensive" and that the legislation is "duplicat[ive]" of the regulation with respect to care for pregnant women?

With respect to coverage of children, under the regulation, the 12-month continuous eligibility for children is not from the time of birth but the clock begins running during the time of coverage prior to birth. S. 724 provides comprehensive pediatric care to children throughout the first and most fragile year of life. In contrast, for prenatal care delivered to an "unborn child" under this regulation, that time is subtracted from the 12-month period after birth. Therefore, under the regulation, if nine months of prenatal care are provided, the child could lose coverage at the end of the 3rd month after birth. Potentially lost would be a number of important well-baby visits, immunizations, and access to their pediatric caregiver. Once again, how then do you argue the regulation is "more effective and comprehensive" and that the legislation is "duplicat[ative]" to the regulation for children?

Furthermore, according to the rule, the Administration estimates that only 13 states will elect to adopt this definition to include "unborn children" in their SCHIP state plans. The other 37 states will either not expand SCHIP to provide prenatal care to additional populations or be forced to seek a federal waiver to also cover pregnant women, as Colorado did just two weeks ago. However, the regulation was right on the mark in stating that it is "an inferior option" to require states to have to get waivers to provide the full range of care to pregnant women and 12-month continuous eligibility for children after birth.

As the regulation reads, "...the Secretary's ability to intervene through one mechanism (a waiver) should not be the sole option for States and may in fact be an inferior option. Waivers are discretionary on the part of the Secretary and time limited while State plan amendments are permanent, and are subject to budget neutrality." For a third time, how can you now argue, less than a week after issuing the regulation, that it is "more effective and comprehensive" than the legislation?

The States agree, as you know. The National Governors' Association has clear policy expressing support for the passage of such legislation. As their policy position (HR-15. The State Children's Health Insurance Program (S-CHIP Policy)) reads:

"The Governors have a long tradition of expanding coverage options for pregnant women through the Medicaid program. However, pregnant women in working families are not eligible for SCHIP coverage. The Governors call on Congress to create a state option that would allow states to provide health coverage to income-eligible pregnant women under SCHIP. This small shift in federal policy would allow states to provide critical prenatal care and would increase the likelihood that children born to SCHIP mothers would have a healthy start."

Finally, unlike S.724, the regulation provides absolutely no additional resources (despite estimating the cost to be $330 million over the next five years) for covering "unborn children" and certain pregnancy-related services. Current projections by the Office of Management and Budget indicate that SCHIP funds will ultimately be inadequate to cover all the children currently enrolled, even though millions of additional children are eligible but not currently covered. In sharp contrast, just as S. 724 does, we must provide adequate resources to serve both low-income children and low-income pregnant women.

Mr. Secretary, just as you said in your press release on January 31, 2002, we also praise Senators Bond, Breaux, and Collins for "bipartisan leadership in supporting S. 724, a bill that would allow states to provide prenatal coverage for low-income women through the SCHIP program. We support this legislative effort in this Congress. We agreed with you on January 31, 2002, and hope that you will once again support the passage of S. 724, the "Mothers and Newborns Health Insurance Act."

We eagerly await your response to this very important matter with respect to the health and well-being of our nation's children and mothers.

Sincerely,

Jeff Bingaman
John B. Breaux
Maria Cantwell 
Hillary Rodham Clinton
Jon Corzine
Dianne Feinstein
James M. Jeffords
Edward M. Kennedy
Mary Landrieu
Patrick J. Leahy
Blanche L. Lincoln
Barbara A. Mikulski
Patty Murray 
Jack Reed 
Charles E. Schumer