After a year since Roe v. Wade was overturned, at least 15 states have established complete or six week abortion bans [1]. With these restrictions becoming more prevalent, various questions have risen for future abortion care and funding. In an article published by Harvard Law School and the Journal of the American Medical Association, the authors bring up the miscoding of abortion—when abortions are coded as miscarriages or adverse events to insurance or billing—as an issue that will likely increase and put providers and patients at risk [1]. Procedure miscoding is dangerous on the legal front for physicians and exacerbates healthcare gaps for low-income minorities, especially those on Medicaid.
Increased intentional miscoding, which can allow physicians to avoid criminal liability, is expected as women’s access to reproductive care becomes more restricted [1]. A physician may intentionally miscode if their patient has insurance that does not cover abortion costs, or is living in a state that has a six week or complete abortion ban. Intentional miscoding can be a tactic—albeit a potentially dangerous—strategy to ensure that patients still receive abortion care regardless of where they live. The approach to care for miscarriages and abortions are incredibly similar and involve care management, medication regimens, and surgical removals of tissue [1]. This leads to miscoding often being overlooked, allowing the physician to avoid criminal penalties while still providing affirming care. Indeed, in states like Texas, physicians who perform abortions are subject to a $100,000 fine, five years to life in prison, and are convicted of a first degree felony [2]. Physicians may intentionally miscode merely as a defense to protect themselves from such harsh punishment while also honoring their patient’s wishes and prioritizing their health.
Unintentional miscoding can result when a patient does not divulge if they have performed an abortion on themselves or elsewhere, but reaches out to the provider for follow-up care [1]. For example, the provider may be unaware that the patient has received an abortion if the patient reports it as a miscarriage for fear of legal consequences. Therefore, physicians in states like Alabama and Texas [3] that reprimand or have legal penalties for those who receive abortion may be limited in their ability to validate women’s rights to choose, and many may be discouraged from providing invasive reproductive care in fear of the repercussions. This can pose incredibly dire health risks for their patients, and miscoding can provide accessibility for these life-saving and affirming services.
According to the False Claims Act, there can be severe penalties for providers who provide false claims and miscoded procedures, whether done intentionally or not. They can be held responsible for the knowledge of the false claim, or reckless ignorance of the truth or falsity of the claim [1]. Therefore, regardless of if the provider knows of the abortion, they can still be held liable.
Physicians may miscode abortions more for patients who are on federally funded healthcare programs like Medicaid. Medicaid is available for those who are under 65 and low income, disabled, or pregnant [4]. The Hyde Amendment, passed in 1976, prohibits Medicaid and other federally funded programs from paying for care related to abortions with the exception of rape, incest or life threatening pregnancies [4]. Medicaid requires claims and procedural codes [5] that can result in miscoding if a provider indicates that the abortion was medically necessary to save the life of the pregnant woman—even if this was not the case. Therefore, as a result of restrictive policies from Medicaid, physicians may miscode to ensure that patients on Medicaid that want or have had an abortion are receiving the validating care they need.
Yet, miscoding may affect those who receive care through Medicaid the most. In order to understand the disproportionate impact of abortion miscoding on Medicaid patients, one must first be aware of the unintended health consequences of miscoding at large. According to a study conducted in 2022 and published by the National Library of Medicine, chemical abortion patients whose abortions were miscoded as miscarriages experienced 3.2 hospital admissions within the following month. Miscoded surgical abortions are twice as likely to result in hospital admission [6]. Chemical and surgical abortions were found to have more subsequent hospitalizations for retained products of conception (RPOC) than those without miscoding [6].
Concealing an abortion can also have grave consequences for emergency room staff who may fail to identify risk factors or complications related to RPOC, leading to delays in surgical treatment [6]. Obtaining an accurate history is essential for medical professionals to assess and treat the patient—without this, there can be care gaps that jeopardize the health and wellness of the patient.
This can point to a number of social issues. Restricting reproductive rights, then, not only makes it difficult for physicians to perform abortions, but also compromises the health of the patients themselves, especially those vulnerable patients on Medicaid. If an accurate history is not taken and the providers are unaware of the abortion, consequences include septic shock, hemorrhage, or death if left untreated [7].
These complications that come as a result of miscoding—regardless of if it is well intentioned—can disproportionately harm low-income pregnant women. Of all Medicaid recipients, 61% are low-income minorities and people of color [8]. They are unfortunately more likely to be the victim of miscoding, which could increase their risk for subsequent illness or death from RPOC or self-induced abortions.
Moreover, many low-income women who have families or cannot afford to take time off of work often do not utilize follow-up care. This makes them even more vulnerable to the crippling inaccessibility to quality healthcare [9]. Without proper follow-up care and management after an abortion, RPOC may cause vaginal bleeding, infection, infertility or a plethora of other health consequences [10]. This could result in other chronic conditions that may develop into additional both physical or financial strains for them and their families.
The lack of government support for both physicians and patients—especially those who receive Medicaid services—shows the disregard for female reproductive care access, the right to choose, and the right to their own wellbeing through comprehensive and affirming care. Physicians should not have to miscode procedures to avoid legal consequences for protecting their patients, and patients should not have to be subject to potential negligence of unknowing hospital staff that endanger their health.
Some alternatives for physicians instead of miscoding can include encouraging patients to seek abortion care in states such as New York, California, Oregan, or Washington, where the right to choose is protected [3]. In these states, physicians will not be held liable for performing abortions and may be less inclined to miscode them as miscarriages. However, for patients who are low-income, traveling to an entirely different state that could be across the country may not be a viable option. Travel costs, securing childcare, in addition to lost wages for missing work can provide tremendous strain on women who may not be able to access abortion care. There are more recent abortion care developments such as telehealth services that send abortion pills by mail to those who cannot travel long distances for care. The only caveat is that these pills are only approved for ending pregnancy up to 13 weeks after conception—those outside of this window may not be able to utilize this service [11].
Analyzing both the consequences and the perceived necessity for miscoding can continue to provide a call to action to protect women’s rights. Although miscoding is unethical and should not be condoned, it is still important to understand the social factors and pressures that factor into their frequency. Miscoding exposes the underlying lack of priority for quality healthcare for POC women and Medicaid recipients, while also putting well intentioned physicians at legal risk. If Roe v Wade had not been overturned, drastic measures for protecting abortion care and bodily autonomy would not be necessary. Legal protection for women and providers who want to exercise and protect the right to choose should not be penalized.
References:
1. Chary S, Pacia D, Shachar C. Abortion Miscoding—Legal Risks for Clinicians and Hospital Systems. JAMA.2023;329(22):1911–1912. doi:10.1001/jama.2023.6278.
2. Gimbert, R. &. (2022, September 21). Abortion as a crime in Texas. bryanlawyer. https://www.bryanlawyer.com/blog/2022/september/abortion-as-a-crime-in-texas/.
3. Abortion laws by State. Center for Reproductive Rights. (2023, August 16). https://reproductiverights.org/maps/abortion-laws-by-state/.
4. Eligibility. (n.d). https://www/medicaid.gov/medicaid/eligibility/index.html. 5. Medicaid. (n.d). https://www.medicaid.gov/medicaid/index.html.
6. Studnicki, J., Longbons, T., Harrison, D. J., Skop, I., Cirucci, C., Reardon, D. C., Craver, C., Fisher, J. W., & Tsulukidze, M. (2022). A Post Hoc Exploratory Analysis: Induced Abortion Complications Mistaken for Miscarriage in the Emergency Room are a Risk Factor for Hospitalization. Health services research and managerial epidemiology, 9, 23333928221103107. https://doi.org/10.1177/23333928221103107.
7. Abortion complications - statpearls - NCBI bookshelf. (n.d.). https://www.ncbi.nlm.nih.gov/books/NBK430793/.
8. Racial and ethnic disparities in Medicaid: An annotated ... - macpac. (n.d.). https://www.macpac.gov/wp-content/uploads/2021/04/Racial-and-Ethnic-Disparit ies-in-Medicaid-An-Annotated-Bibliography.pdf.
9. Howell, E. A., Balbierz, A., Beane, S., Kumar, R., Wang, T., Fei, K., Ahmed, Z., & Pagán, J. A. (2020). Timely Postpartum Visits for Low-Income Women: A Health System and Medicaid Payer Partnership. American journal of public health, 110(S2), S215–S218. https://doi.org/10.2105/AJPH.2020.305689.
10. Foreste, V., Gallo, A., Manzi, A., Riccardi, C., Carugno, J., & Sardo, A. D. S. (2021). Hysteroscopy and Retained Products of Conception: An Update. Gynecology and minimally invasive therapy, 10(4), 203–209. https://doi.org/10.4103/GMIT.GMIT_125_20.
11. Where can I get an abortion? | U.S. abortion clinic locator. (n.d.). https://www.abortionfinder.org/abortion-types/telehealth.