A new Kaiser Family Foundation analysis estimates that 6.3 million people — 23 percent of 27.4 million non-elderly adults with a gap of several months in insurance coverage in 2015 – could potentially face higher premiums under the House’s American Health Care Act (AHCA), due to pre-existing health conditions.

The bill, which passed the House earlier this month, allows states to waive community rating in the individual insurance market. Insurers in states with such waivers could vary premiums by health status for an entire plan year for enrollees with a gap in insurance of 63 or more consecutive days in the past year.

People with pre-existing conditions would likely face large premium surcharges under an AHCA waiver, according to the analysis, as insurers would be unable to decline coverage based on a person’s medical history, a practice that was permitted in nearly all states before it was prohibited by the Affordable Care Act in 2014. An earlier analysis from the Foundation estimated that 27 percent of non-elderly adults have a condition that would have led to a coverage refusal in the pre-ACA market.

The new analysis also identifies a second group of people who could be at risk of higher premiums: those with pre-existing conditions now buying their own insurance. It finds that an estimated 3.8 million adults, or about 25 percent of all adult enrollees in the 2015 individual insurance market, had a pre-existing condition that could subject them to higher premiums under an AHCA community rating waiver if they don’t maintain continuous coverage.

The AHCA allocates $8 billion over five years to states with community rating waivers, resources that can be used to help reduce premiums or pay out-of-pocket medical expenses for people rated based on their health status. However, the House bill does not require states to set up an alternate source of coverage for people who face higher premiums based on their health. It is uncertain how many states would waive community rating under the AHCA.

The American Health Care Act (AHCA), which has passed the House of Representatives, contains a controversial provision that would allow states to waive community rating in the individual insurance market. In this brief we estimate the number of people with pre-existing conditions who might be affected by such a policy.

How the State Waiver Provision Works

Under the provision, insurers in states with community rating waivers could vary premiums by health status for enrollees who have had a gap in insurance of 63 or more consecutive days in the last year. The higher (or lower) premiums due to health status would apply for an entire plan year (or the remainder of the year in case of people signing up during a special enrollment period), at which point enrollees would be eligible for a community-rated premium unrelated to their health.

States waiving community rating would be required to set up a mechanism to subsidize the cost of high-risk enrollees, such as a high-risk pool, or participate in a reinsurance arrangement that makes payments directly to insurers. States are not required to set up an alternative source of coverage for people who face higher premiums based on their health.

The bill makes $100 billion available to all states for a variety of purposes, including high-risk pools, reinsurance programs, and cost-sharing subsidies. An additional $15 billion is made available for a federal invisible risk-sharing program, which would be similar to a reinsurance arrangement. Another $15 billion is earmarked for spending on maternal and newborn care, mental health, and substance abuse services for the year 2020.  The AHCA also allocates $8 billion over five years to states that implement community rating waivers; these resources can be used to help reduce premiums or pay out-of-pocket medical expenses for people rated based on their health status.

Premiums varied significantly based on health status in the individual market before the Affordable Care Act (ACA) prohibited that practice beginning in 2014. Insurers in nearly all states were also permitted to decline coverage to people with pre-existing conditions seeking individual market insurance. We estimate that 27% of non-elderly adults have a condition that would have led to a decline in coverage in the pre-ACA market. While insurers would have to offer insurance to everyone under the AHCA, people with declinable pre-existing conditions would likely face very large premium surcharges under an AHCA waiver, since insurers were unwilling to cover them at any price before the ACA.

How Many People Might be Affected by Community Rating Waivers?

The effect of a community rating waiver would depend crucially on how many people with pre-existing conditions have gaps in insurance that would leave them vulnerable to higher premiums.

Using the most recent National Health Interview Survey (NHIS), we estimate that 27.4 million non-elderly adults nationally had a gap in coverage of at least several months in 2015. This includes 6.3 million people (or 23% of everyone with at least a several-month gap) who have a pre-existing condition that would have led to a denial of insurance in the pre-ACA individual market and would lead to a substantial premium surcharge under AHCA community rating waiver.¹ 

Among the 21.1 million people who experienced a gap in coverage and did not have a declinable pre-existing condition, some also had pre-existing conditions (such as asthma, depression, or hypertension) that would not have resulted in an automatic denial by individual market health insurers pre-ACA but that nonetheless could also result in a premium surcharge.

In many cases, people uninsured for several months or more in a year have been without coverage for a long period of time. In other cases, people lose insurance and experience a gap as a result of loss of a job with health benefits or a decrease in income that makes coverage less affordable. Young people may have a gap in coverage as they turn 26 and are unable to stay on their parents’ insurance policies. Medicaid beneficiaries can also have a gap if their incomes rise and they are no longer eligible for the program.

Through expanded Medicaid eligibility and refundable tax credits that subsidized premium in insurance marketplaces, the ACA has substantially reduced coverage gaps. In 2013, before the major provisions of the ACA went into effect, 38.6 million people had a gap of several months, including 8.7 million with declinable pre-existing conditions.

Some people with a gap will ultimately regain coverage through an employer-based plan or Medicaid, and would not be subject to premium surcharges based on their health. However, anyone who has been uninsured for 63 days or more who tries to buy individual market insurance in a state with a community rating waiver would be subject to medical underwriting and potential premium surcharges based on their health.

Uncertainty Around the Estimate

There are a variety reasons why our estimates might understate or overstate number of people with pre-existing conditions who could be subject to premium surcharges under the AHCA.

People with health conditions would have a strong incentive under an AHCA waiver to maintain continuous coverage in order to avoid being charged premiums that could potentially price them out of the insurance market altogether. The question is how many would be able to do so, given the fact that the premium tax credits provided for in the AHCA would be 36% lower on average for marketplace enrollees than under the ACA and would grow more slowly over time. In 2013, before tax credits for individual insurance were available and the ACA’s Medicaid expansion took effect, the number of people with pre-existing conditions who experienced a gap in coverage was 41% higher. Among people with individual market insurance in 2015, we estimate that 3.8 million adults (representing 25% of all adult enrollees) had a pre-existing condition that would have led to a decline before the ACA. These individuals would not be subject to premium surcharges under AHCA community rating waivers, so long as they maintain continuous coverage.  Because individual market subsidies would be significantly reduced under the AHCA, these individuals could face added challenges remaining continuously covered.

About 49% of people with pre-existing conditions who had a gap in coverage in 2015 had incomes at or below 138% of the poverty level, and some of them could be eligible for Medicaid (depending on whether their state has expanded eligibility under the ACA and what eligibility rules are in states that have not expanded). They would not face any coverage restrictions associated with their health status in Medicaid. However, under the AHCA enhanced federal funding for expanding Medicaid would be repealed, and federal matching funds would be capped. The Congressional Budget Office projects that 14 million fewer people would be enrolled in Medicaid by 2026. So, while some people we identify as having a coverage gap would be eligible for Medicaid under the AHCA, many more people currently enrolled in Medicaid would lose that coverage under the AHCA and be uninsured. They would be eligible for premium tax credits, but the AHCA’s subsidies do not scale by income so individual market insurance would likely be unaffordable for people who are poor, including those with pre-existing conditions.

There is also significant uncertainty surrounding how many states would seek to waive community rating under the AHCA. Some states might do so to roll back what they consider to be excessive regulation of the insurance market initiated by the ACA and preserved under the AHCA. Other states might come under pressure to implement waivers from insurers who believe the market would be unstable, given that the AHCA repeals the ACA’s individual mandate. What states decide to do may ultimately have the greatest effect on how many people with pre-existing conditions face potentially unaffordable insurance premiums.

Methods

To calculate nationwide prevalence rates of declinable health conditions, we reviewed the survey responses of nonelderly adults for all question items shown in Methods Table 1 using the CDC’s 2015 National Health Interview Survey (NHIS).  Approximately 27% of 18-64 year olds, or 52 million nonelderly adults, reported having at least one of these declinable conditions in response to the 2015 survey.  For more details on methods and a list of declinable conditions included in this analysis, see our earlier brief: Pre-existing Conditions and Medical Underwriting in the Individual Insurance Market Prior to the ACA.

The programming code, written using the statistical computing package R, is available upon request for people interested in replicating this approach for their own analysis.

1. Note that coverage gaps identified in NHIS do not match up precisely to the 63-day threshold in the AHCA. People who were uninsured at the time they were surveyed were asked if they had been uninsured for at least the prior six months, a longer period than the AHCA threshold.  People who were insured at the time of the survey were asked if they had experienced any gaps in coverage totaling at least three months during the past year.  These coverage gaps identified in NHIS may not have been consecutive months, but that would typically be the case. ↩︎

The American Health Care Act recently passed by the House of Representatives includes a provision to ban federal Medicaid funding of Planned Parenthood. The Trump administration has also proposed reducing funding to HHS, which funds the Title X family planning program and community health centers.

A new brief from the Kaiser Family Foundation assesses the role of these programs in providing family planning care services to low-income women as well as the potential impact of eliminating funding for Planned Parenthood. If Planned Parenthood is excluded as a Medicaid provider, community health centers may not have the capacity to meet additional demands that would be placed on them to provide family planning services, the brief finds.

Several states have enacted laws to block state funding to Planned Parenthood under the Title X program.  Reducing or eliminating funding would disproportionately impact low-income women, who are more than eight times as likely as higher income women to seek family planning services at a safety-net clinic.

A new issue brief from the Kaiser Family Foundation highlights proposed changes to Medicaid programs in Wisconsin and Maine that include work requirements and time limits in both states, as well as drug screenings for some beneficiaries in Wisconsin. The waiver authority sought by both states would impose welfare-like restrictions and include a number of provisions that have never been approved for traditional, non-Medicaid expansion populations, such as locking beneficiaries out of coverage for failure to pay premiums.

Both states’ waiver proposals estimate less coverage and higher costs as a result of the waivers. The brief includes tables that summarize the key provisions of the proposed waivers for each state.

The requests from Wisconsin and Maine, which will be submitted to the U.S. Department of Health and Human Services, come at a time when the Trump Administration has signaled to states that the federal government would be open to considering waiver requests from states that want to redesign their Medicaid programs.

About 70% of all office-based physicians accept new Medicaid patients, including two-thirds of primary care physicians and close to three-quarters (72%) of specialists. The percentage of physicians accepting new Medicaid patients varies by state, ranging from 39% in New Jersey to 97% in Nebraska (Figure 1). Overall, about 85% of physicians accept new privately insured patients, but this rate also varies by state, ranging from 57% in the District of Columbia to 95% in Illinois. In one-quarter of states (14), more than 85% of physicians accept new Medicaid patients, including 10 states where at least 90% do. Physician participation in Medicaid is generally highest in the most rural states. In the 11 states where at least half the population lives in rural areas, the median Medicaid physician participation rate is 90%, compared to 71% in the 25 states where less than one-quarter of the population is rural. In many states, the responsibility for ensuring adequate physician participation in Medicaid rests largely with managed care plans, which serve a growing majority of Medicaid beneficiaries. There is no evidence that physician participation in Medicaid is declining. In a 2015 survey, 4 in 10 primary care physicians who accepted Medicaid reported seeing an increased number of Medicaid patients since January 2014, when the coverage expansions in the Affordable Care Act took full effect.

References

Center for Behavioral Health Statistics and Quality, 2015 National Survey on Drug Use and Health: Detailed Tables (Rockville, MD: Substance Abuse and Mental Health Services Administration, September 2016), https://www.samhsa.gov/data/sites/default/files/NSDUH-DetTabs-2015/NSDUH-DetTabs-2015/NSDUH-DetTabs-2015.pdf

Kaiser Family Foundation analysis of 2015 National Survey on Drug Use and Health

Michael A. Hoge, et al., “Mental Health and Addiction Workforce Development: Federal Leadership is Needed to Address the Growing Crisis,” Health Affairs 32, no 11. (2013):2005-2012

Mark Olfson, “Building the Mental Health Workforce Capacity Needed to Treat Adults with Serious Mental Illnesses,” Health Affairs (Millwood) 35, 6(2016):983-990.

Medicaid and CHIP Payment and Access Commission (MACPAC), Report to Congress on Medicaid and CHIP (Washington, DC: MACPAC, June 2015), https://www.macpac.gov/wp-content/uploads/2015/06/June-2015-Report-to-Congress-on-Medicaid-and-CHIP.pdf

Robin Rudowitz and Rachel Garfield, New Analysis Shows States with Medicaid Expansion Experienced Declines in Uninsured Hospital Stays (Washington, DC: Kaiser Family Foundation, September 2015), https://files.kff.org/attachment/issue-brief-new-analysis-shows-states-with-medicaid-expansion-experienced-declines-in-uninsured-hospital-discharges

Rural Health Research & Policy Centers, Supply and Distribution of the Behavioral Health Workforce in Rural America (Seattle, WA: Rural Health Research & Policy Centers, September 2016), http://depts.washington.edu/fammed/rhrc/wp-content/uploads/sites/4/2016/09/RHRC_DB160_Larson.pdf

Tami L. Mark, et al., “Insurance Financing Increased for Mental Health Conditions But Not For Substance Use Disorders, 1986-2014,” Health Affairs (Millwood) 35, 6(2016):958-965.

As debate continues surrounding repealing and replacing or transforming aspects of the Affordable Care Act (ACA), and as one such proposal has passed the U.S House of Representatives, questions remain about the potential impact of such changes on high needs populations, including people with HIV. Prior to the ACA, many people with HIV faced significant barriers to accessing health coverage despite national treatment guidelines recommending starting antiretroviral therapy at time of diagnosis.¹   Several of the ACA’s key provisions addressed these barriers (see Table 1) and recent analysis demonstrates that the ACA significantly increased insurance coverage for people with HIV.² 

This brief explores the potential implications of different ACA repeal scenarios and related administrative actions on people with HIV. In particular, it looks at the main policy areas under consideration that stand to affect people with HIV the most: (1) the future of the ACA’s Medicaid expansion; (2) changes to the traditional Medicaid program; and (3) the pathway forward for private market reforms, including the ACA’s health insurance marketplaces. (For a detailed overview of the major policy proposals that have been introduced to date, including the amended American Health Care Act (AHCA), see Kaiser Family Foundation’s interactive ACA replacement plan comparison tool).³ 

Changes to Medicaid Would Likely Have the Biggest Impact on People with HIV

Medicaid is the single largest source of coverage for people with HIV in the U.S. and its role for those with HIV has significantly expanded under the ACA. Indeed, the Medicaid expansion provision is arguably the aspect of the law that has had the most far reaching effects on people with HIV, driving a nationwide increase in access to insurance.⁴  Proposals that have been put forward, including the amended AHCA which has now passed the House, have sought to change both the Medicaid expansion and the traditional Medicaid program.

The Medicaid Expansion. Prior to the ACA, under federal law, individuals could not qualify for Medicaid based on income alone.⁵  Enrollees had to be both low income and fall into another category, known as “categorical eligibility,” such as disability, pregnancy, or being parents. This excluded most low-income childless adults from coverage and created a particular “catch-22” for many low-income people with HIV who could not qualify for Medicaid until they were already quite sick and disabled, often as a result of developing AIDS, despite the availability of recommended medications that could prevent such disease progression.⁶  The ACA fundamentally changed this, requiring states to expand their Medicaid programs to cover individuals below 138% FPL based on income and residency status alone; although a June 2012 US Supreme Court decision effectively made the expansion a state option. To date 32 states (including D.C.) have expanded their programs (where an estimated 62% of people with HIV live).⁷  As part of the expansion, the federal government offered states a historically generous federal match to cover this new population, with 100% federal funding for the first few years, gradually decreasing to 90% in 2020 and beyond.⁸  A recent analysis found that increased Medicaid coverage in expansion states drove a nationwide increase in coverage for people with HIV in 2014, the first year after the Medicaid expansion went into effect.⁹ 

As part of the repeal and replace debate, the Medicaid expansion has been a major focus because of the impact unraveling this source of coverage would have on the 32 states that have expanded and the millions enrolled through this pathway. The AHCA would retain the expansion but use the (less generous) traditional state match for new enrollees starting in 2020 and for existing enrollees without continuous coverage. A less generous match could mean states would be less willing to cover the new adult population in the years to come and in fact several states already have triggers in place to rescind coverage for the current group if the federal match declines to certain levels. It would also provide a disincentive for other states to expand in the future.

The Traditional Medicaid Program. Proposals to transform the current open-ended nature of federal matching funds to states for the traditional Medicaid program have also been part of the debate. Proposals, including converting the program to a block grant or per capita cap would fundamentally change the financing and structure of the program and shift costs to states.¹⁰  The AHCA proposes a per capita cap approach as a way to limit federal spending and increase state flexibility. However, such an approach could impact access for people with HIV. Under restructured and constrained financing, states would probably respond by reducing services or eligibility to accommodate a loss in federal dollars. Beneficiaries may see increased cost-sharing and providers, reductions in reimbursement rates. As these programs could be structured in a multitude of ways, it will be important to watch how proposals might impact access to coverage for people with HIV in terms of eligibility, benefits, cost-sharing, beneficiary protections, and enrollment requirements. These proposals to change per beneficiary spending would apply to the HIV disability population in traditional Medicaid as well as the newly eligible expansion population.

Administrative Actions. Apart from repealing the expansion or fundamentally changing the financing and structure of the Medicaid program through legislation, the administration can permit broader flexibility for states through the use of 1115 Medicaid waivers which allow states to experiment with new approaches that can result in significant changes. On March 14, 2017, Health and Human Services (HHS) Secretary Price and Centers for Medicaid and Medicare Services (CMS) Administrator Seema Verma sent a letter to governors outlining the administration’s approach to Medicaid policy. It highlighted the flexibility the administration intends to provide to states with respect to state plan amendments and 1115 waivers. It specifically notes the potential for waivers to include higher beneficiary cost-sharing and adopt alternative benefit designs with features such as health savings accounts and work requirements, all provisions that could impact access to care and treatment for people with HIV.¹¹ 

1. Department of Health and Human Services. Panel on Antiretroviral Guidelines for Adults and Adolescents. Guidelines for the use of antiretroviral agents in HIV-1-infected adults and adolescents. 2016. Available at https://aidsinfo.nih.gov/contentfiles/lvguidelines/adultandadolescentgl.pdf ↩︎
2. Kates, J. and Dawson, L. Kaiser Family Foundation. Insurance Coverage Changes for People with HIV Under the ACA. February 2017. https://modern.kff.org/hivaids/issue-brief/insurance-coverage-changes-for-people-with-hiv-under-the-aca/ ↩︎
3. Kaiser Family Foundation. Compare Proposals to Replace The Affordable Care Act. 2017. https://modern.kff.org/interactive/proposals-to-replace-the-affordable-care-act/ ↩︎
4. Kates, J. and Dawson, L. Kaiser Family Foundation. Insurance Coverage Changes for People with HIV Under the ACA. February 2017. https://modern.kff.org/hivaids/issue-brief/insurance-coverage-changes-for-people-with-hiv-under-the-aca/ ↩︎
5. Some states used a waiver to create an eligibility pathway with their own funds to cover this population. ↩︎
6. Department of Health and Human Services. Panel on Antiretroviral Guidelines for Adults and Adolescents. Guidelines for the use of antiretroviral agents in HIV-1-infected adults and adolescents. 2016. Available at https://aidsinfo.nih.gov/contentfiles/lvguidelines/adultandadolescentgl.pdf ↩︎
7. KFF analysis of data from CDC Atlas (HIV Prevalence, 2014)  and Kaiser Family Foundation. State Health Facts. Status of State Action on the Medicaid Expansion Decision. https://modern.kff.org/health-reform/state-indicator/state-activity-around-expanding-medicaid-under-the-affordable-care-act/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D ↩︎
8. In the traditional Medicaid program, the highest match a state receives is Mississippi’s at 75.65% and the Median (including DC) match is Oklahoma’s at 58.57%. ↩︎
9. Kates, J. and Dawson, L. Kaiser Family Foundation. Insurance Coverage Changes for People with HIV Under the ACA. February 2017. https://modern.kff.org/hivaids/issue-brief/insurance-coverage-changes-for-people-with-hiv-under-the-aca/ ↩︎
10. For more information, on block grants and per capita caps see: – Robin Rudowitz. Kaiser Family Foundation. 5 Key Questions: Medicaid Block Grants & Per Capita Caps. 2017. https://modern.kff.org/medicaid/issue-brief/5-key-questions-medicaid-block-grants-per-capita-caps/ ↩︎
11. Price, Thomas E. (Sec. HHS) and Verma, Seema (Administrator CMS). Letter to Governors. March 14, 2017. Available at: https://www.hhs.gov/sites/default/files/sec-price-admin-verma-ltr.pdf ↩︎
12. For a detailed look at pre-ACA insurance practices related to eligibility and rate setting see: Claxton, G., Levitt, L., and Pollitz, K. Pre-ACA Market Practices Provide Lessons for ACA Replacement Approaches. 2017. https://modern.kff.org/health-costs/issue-brief/pre-aca-market-practices-provide-lessons-for-aca-replacement-approaches/ ↩︎
13. Pollitz, Karen. Sorian, Richard, and Thomas, Kathy. Kaiser Family Foundation. How accessible is Individual Health Insurance for consumers in less-than-perfect health? How accessible is Individual Health Insurance for consumers in less-than-perfect health?. June 2001. https://modern.kff.org/health-costs/report/how-accessible-is-individual-health-insurance-for-2/ ↩︎
14. MacArthur amendment to the AHCA. Available: http://www.politico.com/f/?id=0000015b-a790-d120-addb-f7dc0ec90000 ↩︎
15. Centers for Disease Control and Prevention. Behavioral and Clinical Characteristics of Persons Receiving Medical Care for HIV Infection—Medical Monitoring Project, United States, 2013 Cycle (June 2013–May 2014). HIV Surveillance Special Report 16. http://www.cdc.gov/hiv/library/ reports/surveillance/#panel2. January 2016. https://www.cdc.gov/hiv/pdf/library/reports/surveillance/cdc-hiv-hssr-mmp-2013.pdf ↩︎
16. Marketplace Enrollees Receiving Financial Assistance as a Share of the Subsidy-Eligible Population. https://modern.kff.org/health-reform/state-indicator/marketplace-enrollees-eligible-for-financial-assistance-as-a-share-of-subsidy-eligible-population/?currentTimeframe=0 ↩︎
17. The Essential Health Benefits package includes: While the benefits are not defined specifically, except with respect to certain preventative services, impacted plans must cover services related to the following categories: ambulatory services, emergency services, hospitalization, maternity and newborn care, mental health and substance use services (on par with other health services), prescription drugs, rehabilitative and habilitative services, laboratory services, preventive and wellness services, and pediatric services. ↩︎
18. 82 Fed. Reg. 18346-18382 (April 18, 2017), available at   https://www.federalregister.gov/documents/2017/04/18/2017-07712/patient-protection-and-affordable-care-act-market-stabilization. ↩︎
19. Department of Health and Human Services. Centers for Medicare and Medicaid Services. Guidance to States on Review of Qualified Health Plan Standards in Federally-facilitated Marketplaces for the Plan Years 2018 and Later. April 13, 2017. https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/QHP-Certifcation-Reviews-Guidance-41317.pdf ↩︎
20. President Donald J. Trump. The White House. Executive Order Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal. January 20, 2017. https://www.whitehouse.gov/the-press-office/2017/01/2/executive-order-minimizing-economic-burden-patient-protection-and ↩︎
21. Kates, J. and Dawson, L. Kaiser Family Foundation. Insurance Coverage Changes for People with HIV Under the ACA. February 2017. https://modern.kff.org/hivaids/issue-brief/insurance-coverage-changes-for-people-with-hiv-under-the-aca/ ↩︎
22. National Alliance of State & Territorial AIDS Directors (NASTAD). National ADAP Monitoring Project: 2016 Annual Report. 2016. https://www.nastad.org/sites/default/files/2016-National-ADAP-Monitoring-Project-Annual-Report.pdf ↩︎
23. Dawson, L. and Kates, J. Kaiser Family Foundation. The Ryan White Program and Insurance Purchasing in the ACA Era: An Early Look at Five States. 2015. https://modern.kff.org/hivaids/issue-brief/the-ryan-white-program-and-insurance-purchasing-in-the-aca-era/ ↩︎
24. Compared to the cost of directly purchasing medications. ↩︎

As shown in a recent brief, people in rural areas face particular challenges in health insurance and access, including limited access to employer-sponsored coverage and low incomes. Following implementation of the Affordable Care Act (ACA) Medicaid expansion in 2014, there were increases in insurance coverage for people in states that expanded their programs, including those in rural areas. Nationwide, nearly two million people in rural areas in Medicaid expansion states gained insurance coverage between 2013 and 2015. These coverage gains in rural areas occurred in expansion states across the political spectrum.

Key Facts

• On January 23, 2017, President Trump reinstated and expanded the Mexico City Policy requiring foreign NGOs to certify that they will not “perform or actively promote abortion as a method of family planning,” using any funds (including non-U.S. funds), as a condition for receiving U.S. government global health assistance. The U.S. government issued initial guidance related to U.S. global family planning assistance on March 2, and further guidance on other U.S. global health assistance is expected soon.
• This data note assesses how the Mexico City Policy affects the provision of legal abortion services in U.S. assisted countries.
• It finds that the majority of countries that received U.S. bilateral global health assistance in FY 2016 (37 of 64), allow for legal abortion in at least one case not permissible by the MCP. These countries accounted for 53% of bilateral global health assistance. In all other countries, abortion is not legal beyond what is permissible by the MCP, although other activities are prohibited by the policy.
• While foreign NGO recipients of U.S. global health assistance will be required to certify that they are in compliance with the MCP regardless of where they work, where countries’ laws allow for abortion in cases not permitted by the MCP, they will be prohibited from providing legal services with non-U.S. funds as a condition of receiving U.S. assistance.

Introduction

On January 23, 2017, President Trump reinstated and expanded the Mexico City Policy (MCP).¹  The MCP, first instituted by President Reagan in 1984 and rescinded and reinstated by Presidents along party lines since, requires foreign NGOs to certify that they will not “perform or actively promote abortion as a method of family planning,” using non-U.S. funds (including private funding), as a condition for receiving U.S. government global family planning assistance and, as expanded by President Trump, “global health assistance furnished by all departments or agencies”²  (see KFF explainer and Table 1). On March 2, the U.S. government took the first step in implementing the reinstated policy by issuing guidance on its application to family planning assistance;³  further guidance on other U.S. global health assistance is expected soon. This analysis assumes that the final guidance will include the same abortion-related provisions as the guidance released on March 2. One metric for gauging impact of the MCP is assessing the abortion laws in countries that receive bilateral U.S. global health assistance. This data note provides an assessment of the legal landscape to identify how the MCP affects the provision of legal abortion services by foreign NGOs.

Analysis

To assess how the MCP would likely affect the provision of legal abortion services in U.S.-assisted countries, we first identified all countries that received bilateral U.S. global health assistance in FY 2016.⁶  We then looked at the abortion laws in these countries.⁷  Specifically, we assessed whether abortion was legal in any of the following circumstances: threats to a woman’s life; to preserve a woman’s health; to preserve a woman’s mental health; in the case of rape or incest; because of fetal impairment; for economic or social reasons; and/or on request. We next categorized countries into two groups based on their abortion laws: (1) those that allow for legal abortion in at least one case not permissible under the Mexico City Policy and (2) those that do not allow for legal abortion in any case other than the MCP exceptions (or in fewer cases than the exceptions). We include analysis by the eight major global health program areas supported by the U.S. government: family planning and reproductive health (FP/RH), PEPFAR (HIV), malaria, maternal and child health (MCH), nutrition, tuberculosis (TB), water supply/sanitation, and neglected tropical diseases (NTDs)/other public health threats. The results are as follows (see Figures 1 & 2):

• In FY16, the U.S. provided bilateral global health assistance to 64 countries. More than half (34) were countries in Africa. The next largest region was East Asia and the Pacific (9). Funding for PEPFAR was directed to the greatest number of countries (41), followed by MCH (35) and FP/RH (34). Together, bilateral global health assistance in these 64 countries totaled just over $6.1 billion in FY16.⁸ 
• Among these 64 countries, 37 allow for legal abortion in at least one case not permissible under the MCP.⁹  Most (22) were in Africa; the next largest region was South/Central Asia (6). In nearly all of these countries (35), abortion is legal to preserve a woman’s physical health. In 28 countries, abortion is legal in the case of fetal impairment. PEPFAR reached the greatest number of countries (25) in this group, followed by MCH (18), NTDs/other public health threats (17), and FP/RH (16) (see Tables 2 & 3). Together, these 37 countries accounted for 53% of bilateral global health assistance in FY16.
• In 27 countries, abortion is not legal in any case beyond the MCP exceptions. Almost half of these countries were in Africa (12), followed by Latin America/Caribbean (5) and East Asia and the Pacific (5). Most of these countries (25) have abortion laws that are more restrictive than the MCP, allowing abortion only to save a woman’s life; only 2 also allow abortion in the cases of rape or incest. FP/RH reached the greatest number of countries (18) in this group, followed by MCH (17), PEPFAR (16), water supply/sanitation (16), and NTDs/other public health threats (16) (see Tables 2 & 3). Together, these 27 countries accounted for 47% of U.S. bilateral global health assistance in FY16.
• The MCP affects these two groups of countries differently. Where a country’s laws allow for abortion in cases not permissible under the MCP, foreign NGOs would be prohibited from providing legal services with non-U.S. funds as a condition of receiving U.S. global health assistance. Where a country’s laws do not allow for abortion beyond what is permissible by the MCP, the policy would not curtail legal abortion services, although it would still prohibit other activities, such as providing counseling about abortion as a method of family planning (see Table 1). In all cases, foreign NGO recipients of U.S. global health assistance will be required to certify that they are in compliance with the MCP.¹⁰  In addition, any U.S. NGO recipient of global health assistance who in turn provides a sub-award to a foreign NGO will be required to ensure that the foreign NGO certified its compliance with MCP.

Table 3: PDF

1. White House, “The Mexico City Policy,” Memorandum for the Secretary of State, the Secretary of Health and Human Services, the Administrator of the Agency for International Development, Jan. 23, 2017, https://www.whitehouse.gov/the-press-office/2017/01/23/presidential-memorandum-regarding-mexico-city-policy. ↩︎
2. “Policy Statement of the United States of America at the United Nations International Conference on Population (Second Session), Mexico City, Mexico, August 6-14, 1984,” undated; Bill Clinton Administration, “Subject: AID Family Planning Grants/Mexico City Policy,” Memorandum for the Acting Administrator of the Agency for International Development, January 22, 1993, National Archives and Records Administration’s Clinton Presidential Materials Project, https://clinton6.nara.gov/1993/01/1993-01-22-aid-family-planning-grants-mexico-city-policy.html; FY 2000 Consolidated Appropriations Act, P.L. 106-113; George W. Bush Administration, “Subject: Restoration of the Mexico City Policy,” Memorandum for the Administrator of the United States Agency for International Development, January 22, 2001, Bush Administration White House Archives, https://georgewbush-whitehouse.archives.gov/news/releases/20010123-5.html; “Subject: Restoration of the Mexico City Policy,” Memorandum for the Administrator of the United States Agency for International Development, March 28, 2001, Federal Register, https://www.federalregister.gov/documents/2001/03/29/01-8011/restoration-of-the-mexico-city-policy; George W. Bush Administration, “Subject: Assistance for Voluntary Population Planning,” Memorandum for the Secretary of State, August 29, 2003, Bush Administration White House Archives, http://georgewbush-whitehouse.archives.gov/news/releases/2003/08/20030829-3.html; Barack Obama Administration, “Mexico City Policy and Assistance for Voluntary Population Planning,” Memorandum for the Secretary of State, the Administrator of the United States Agency for International Development, January 23, 2009, https://www.whitehouse.gov/the-press-office/mexico-city-policy-and-assistance-voluntary-population-planning; White House, “The Mexico City Policy,” Memorandum for the Secretary of State, the Secretary of Health and Human Services, the Administrator of the Agency for International Development, Jan. 23, 2017, https://www.whitehouse.gov/the-press-office/2017/01/23/presidential-memorandum-regarding-mexico-city-policy. ↩︎
3. USAID, “Standard Provisions for U.S. Nongovernmental Organizations: A Mandatory Reference for ADS Chapter 303,” ADS Reference 303maa, partial revision March 2, 2017, https://www.usaid.gov/ads/policy/300/303maa; USAID, “Standard Provisions for Non-U.S. Nongovernmental Organizations: A Mandatory Reference for ADS Chapter 303,” ADS Reference 303mab, partial revision March 2, 2017, https://www.usaid.gov/ads/policy/300/303mab. ↩︎
4. USAID, “Standard Provisions for U.S. Nongovernmental Organizations: A Mandatory Reference for ADS Chapter 303,” ADS Reference 303maa, partial revision March 2, 2017, https://www.usaid.gov/ads/policy/300/303maa; USAID, “Standard Provisions for Non-U.S. Nongovernmental Organizations: A Mandatory Reference for ADS Chapter 303,” ADS Reference 303mab, partial revision March 2, 2017, https://www.usaid.gov/ads/policy/300/303mab. ↩︎
5. Assumes that the final guidance on the MCP will include the same abortion-related provisions as the guidance released on March 2. ↩︎
6. Kaiser Family Foundation analysis of data from the U.S. Foreign Assistance Dashboard (http://beta.foreignassistance.gov/) and USAID NTD Program website (NeglectedDiseases.gov). The U.S. Foreign Assistance Dashboard includes global health funding provided to countries by USAID and the Department of State only, but not funding provided by the CDC. Our analysis includes all bilateral global health assistance provided to countries but not assistance designated as regional or worldwide, which may in turn be provided to countries but is not identifiable by country (estimated to be approximately $1.1 billion in FY16). It also does not include global health assistance provided to multilateral institutions, such as the Global Fund to Fight AIDS, Tuberculosis and Malaria, GAVI, and others, which totaled approximately $2 billion in FY16, and are expected to be exempt from MCP requirements. ↩︎
7. Kaiser Family Foundation analysis of data from the United Nations, World Population Policies Database (http://esa.un.org/poppolicy/about_database.aspx), and the Center for Reproductive Rights, The World’s Abortion Laws Database (http://worldabortionlaws.com/), for 2015. ↩︎
8. FY16 funding amount does not include $100 million that was provided for NTDs, which is not identifiable by country. ↩︎
9. These 37 countries include 9 countries that, while allowing for legal abortion in at least one case not permitted by the MCP, do not allow abortion in all MCP excepted cases (e.g., allow abortion to preserve a woman’s physical health but not in the cases of rape or incest). ↩︎
10. While all foreign NGOs will be required to certify that they are in compliance with the MCP, not all foreign NGOs provide services that are prohibited by the MCP. Such an assessment was beyond the scope of this analysis. ↩︎
11. Kaiser Family Foundation analysis of data from the U.S. Foreign Assistance Dashboard (http://beta.foreignassistance.gov/) and USAID NTD Program website (NeglectedDiseases.gov) and data from the United Nations, World Population Policies Database (http://esa.un.org/poppolicy/about_database.aspx), and the Center for Reproductive Rights, The World’s Abortion Laws Database (http://worldabortionlaws.com/), for 2015. ↩︎