Obstetrician–Gynecologists’ Practices in Postpartum Sterilization Without a Valid Medicaid Consent Form

Abstract

Objective:

To explore the practices of obstetrician–gynecologists in the United States surrounding postpartum sterilization when the Medicaid consent form was not valid.

Methods:

Using the American College of Obstetricians and Gynecologists’ online directory, we conducted a qualitative study where we recruited obstetrician–gynecologists practicing in ten geographically diverse US states for a qualitative study using semi-structured interviews conducted by telephone. We analyzed interview transcripts using the constant comparative method and principles of grounded theory.

Results:

Thirty obstetrician–gynecologists (63% women, 77% non-subspecialized, and 53% academic setting) were interviewed. While most physicians stated that they did not perform sterilizations without a valid Medicaid sterilization form, others noted that they sometimes did due to a sense of ethical obligation toward their patient’s health, being in a role with more authority or seniority, interpreting the emergency justification section of the form more broadly, or backdating the form. The physicians who said that they never went ahead without a signed form tended to work at large institutions and were concerned with losing funding and engaging in potentially illegal or fraudulent behavior.

Conclusion:

Physicians’ varied behaviors related to providing postpartum sterilization without a valid Medicaid consent form demonstrate that the policy is in need of revision. Unclear terminology and ramifications of the Medicaid sterilization policy need to be addressed to ensure equitable care.

Precis

Obstetrician–gynecologists occasionally perform desired postpartum sterilizations without valid Medicaid consent forms for a variety of ethical reasons.

Introduction

The federal Medicaid sterilization policy was instituted in the 1970s in response to a eugenics movement in which Black, Indigenous, and other people of color or low socioeconomic status were being sterilized without informed consent.^1,2 This policy mandates that patients desiring sterilization and their health care professionals sign a specific sterilization consent form 30 days prior to the procedure. While the policy applies to both men and women, who must be at least 21 years of age when they sign the form, prior work has identified this policy as a barrier to sterilization fulfillment specifically for the female Medicaid population.^3–7 Given this policy barrier and other barriers at the patient-, clinician-, and hospital-level, it is estimated that only approximately 50 percent of women with Medicaid who desire sterilization postpartum actually have their request fulfilled.⁸

Obstetrician–gynecologists (ob-gyns) play a critical role in ensuring access to sterilization given their roles in contraceptive counseling and performing the surgery.^9–11 While intrinsic factors (such as implicit bias based on patient characteristics) and extrinsic factors (availability of long-acting reversible contraception as an alternative, operating room availability, poor reimbursement, busy clinical schedules) affect the clinical practice of ob-gyns, the impact of the Medicaid sterilization policy on the practice of sterilization from the point of view of ob-gyns is less clear.^12–14 In a previous analysis, we assessed ob-gyns’ attitudes, beliefs, and perspectives regarding postpartum sterilization.¹⁵ In the present study, we describe the reasons ob-gyns do or do not follow the policy when the form may not be considered legally valid.

Methods

Full study methodology has been previously published.¹⁵ Briefly, we conducted a qualitative study consisting of semi-structured, open-ended interviews with board-certified ob-gyns in 10 states. We selected two states within each of the four US census macro regions with the highest percentage of Medicaid-paid births in 2016 given the desire to select a geographically diverse sample of physicians who likely had familiarity with the Medicaid sterilization policy.¹⁶ We also included Texas and California given they have the largest number of Medicaid-paid births.¹¹ We randomly selected potential participants from the American College of Obstetricians and Gynecologists’ (ACOG) online physician directory by first randomly selecting at the level of city of practice and then at the level of individual name. We contacted physicians by email or if not available, by phone and fax. We attempted to contact each physician up to three times. We continued recruiting sequentially from the randomized list until we had interviewed three physicians in each state. We compensated administrative staff who assisted with scheduling $15 and participating physicians $75.

We interviewed physicians utilizing a guide that had been iteratively revised through pilot-testing with three ob-gyns. The interview centered around the physician’s individual practice if the sterilization consent form was not valid. Specific open-ended questions included whether the physician would consider performing sterilization in these cases, reasons for doing so, whether the hospital had any processes in place to prevent sterilization in these cases, and repercussions for proceeding. The audio recordings of the interviews were professionally transcribed and entered into Dedoose, a qualitative analysis software program. Using a successive coding passes strategy, we began with open coding of content at the level closest to the content of the text and continued through broader and more analytic codes. We delineated thematic domains using principles of the grounded theory method.¹⁷ We developed a coding scheme and dictionary using the constant comparative method throughout data analysis.¹⁷ After completing 30 interviews, we confirmed we reached thematic saturation as no new codes were generated in the final several interviews. We utilized a comparative analysis to examine the presence or absence of particular major domains and sub-themes across the interviews to look for areas of discussion that were unique to particular groups. For this analysis, we summarized the codes related to the reasons ob-gyns would or would-not provide sterilization when the consent form may not be considered valid. The institutional review board at MetroHealth Medical Center approved this study.

Results

We interviewed a total of 30 ob-gyns among these 10 states (three in every state except four in Ohio and two in Rhode Island) (Table 1). All physicians we interviewed shared that as a general rule they did not perform sterilizations without a signed and valid Medicaid sterilization consent form on Medicaid recipients. However, slightly less than half of interviewed physicians shared that there were a few caveats or unique situations in which they would perform sterilization for patients who desired the procedure without a signed sterilization consent form. Several themes surfaced among these participants, including a sense of ethical obligation toward their patient’s health, having a role with more authority or seniority, liberally interpreting the exceptions that shorten the waiting period and backdating the form. The physicians who said that they never went ahead without a signed sterilization consent form tended to work at large institutions and were concerned about the repercussions including losing funding and concerns of engaging in illegal or fraudulent behavior. We describe these themes below and highlight findings using illustrative quotes with additional participant quotations presented in Box 1.

Table 1 –

Demographic and Practice Characteristics of Obstetrician-Gynecologists Qualitatively Interviewed Regarding Postpartum Sterilization

Characteristics	Participants (N=30)
Gender
Women	19 (63)
Men	11 (37)
Years in Practice	20 (11–29)
Practice Type
Academic	16 (53)
Private	8 (27)
Multi-specialty Group	4 (13)
Hospital-based	2 (7)
Specialty
General obstetrician-gynecologist	23 (77)
Maternal-Fetal Medicine	3 (10)
Family Planning	1 (3)
Other subspecialty	2 (7)
Percent Medicaid Population Served	55 (35–80)
Practice Location*
Urban	20 (67)
Suburban	9 (30)
Rural	2 (7)
Census Region
Midwest	7 (23)
Northeast	5 (17)
South	9 (30)
West	9 (30)

Presented as n(%) or median (interquartile range)

^*One participant noted both a suburban and rural practice location

Box 1. Themes and Representative Participant Quotations Selected From 30 Interviews With Obstetrician–Gynecologists Regarding Postpartum Sterilization.

Themes – Representative Excerpts

Ethical obligation to the patient

• I think there have been a very small number that haven’t gotten a tubal ligation if we can’t find their papers, but I have a motivated group of residents. I’ve seen them do all sorts of crazy things to try to find them. They’re pretty good detectives. (CA)

• If they came on Wednesday and we had OR space on Thursday, and she said, I’ve got 4 kids and I’m done versus that she’s 21 and she’s like, I never want to have kids. It’s a different conversation with different counseling. You tailor to whatever your patient brings. (NM)

• For the patient I knew well, and maybe she had five children. I knew that she had five children I knew that she had a very complicated pregnancy. I mean, I knew the situation, and that to let her go without having her tubes tied would really be unethical, that my feeling is, sometimes you break the rules because it’s the right thing. You have to be able to document that and justify it well. (TX)

Creative workarounds

• Our hospital practice is to still perform it, which would mean we don’t get reimbursed for tubal ligation, but we still do it. We attempt to switch them over to the Texas Family Planning Program, which are separately licensed case managers within the state. If we can get patients to apply to that, then it’s “covered.” We have to pay special attention to their insurance coverage I think is the short version of the story… (TX)

• In the distant past, there have been, like—it may have been—well, she signed it, and I know she signed it, and before we had an electronic medical record, and then she didn’t bring a copy in. Something like that. Where it’s the patient I know well, and I know she signed it. I know the copies are somewhere. I just said, “Look, this has to be done.” (TX)

Risk management

• In the old days, we didn’t have such scrutiny as they have today. I would say in the last 10, 15 years form the institutions…the scrutiny over here of what we call the- I’m sure you may have heard- Northwell as we know it. The scrutiny is beyond belief and you don’t violate it. It’s not worth it. (NY)

• That’s pretty much in most institutions because it’s so big. They don’t get reimbursed. Everybody knew that in the ‘80s, but I don’t know why this became a big deal at this institution, but there definitely is a lot of money so they’re paying attention to it now. (NV)

Loss of Funding

• The policy we have is that we are not allowed to do that because if that Consent never shows up, then we are in violation. …They will deny the entire hospitalization—Medicaid. … Not just the procedure, but the entire hospitalization. (NV)

• Well doing the sterilization without the form, I mean ramifications, I’m sure the hospital and for us, it may be financial. You know and you hear stories that sometimes not only will the sterilization not get paid, which most doctors don’t care about, but the entire cesarean section or the entire hospital stay. (NV)

Criminal or Fraudulent Implications

• I mean otherwise that there’s been truly an informed consent process, no, I would not have a concern about it because we wouldn’t do the procedure without consent. So as long as we’ve gone through an informed consent process, my biggest concern would be in terms of [fraud] litigation from that regard. (AR)

• My understanding is that those workarounds are illegal and—yeah. We did not want to get in a situation where we had our—working in an academic institution, we did not want to get in a situation where we would get nailed, so no, we did not backdate our forms. (OH)

Among those who said they would provide sterilization without a valid form, the health implications of a future pregnancy was the primary concern, and each physician mentioned that they would perform the sterilization despite not having a valid sterilization consent form if another pregnancy could endanger the patient’s health. For example, a physician from New York shared, “I’ve had times where I’ve still done the sterilization regardless, even though I know nobody’s gonna get paid, just because I didn’t feel it was right not to do [it]…Like if a lady had an overwhelming indication, you know… like she’s got five kids and can’t deal, you know, and I would do the sterilization and nobody would get paid…well, if she had some kind of medical problem like if the lady had some kind of clotting thing or something like, that, I would do the sterilization then.” Another physician from Louisiana stated they would proceed without a valid sterilization consent form “if they had postpartum cardiomyopathy with their previous pregnancy, and it’s recommended they not get pregnant again because the risk of death is 50 percent…I would go ahead and do the tubal whether the paper was 30 days old or not.”

Other physicians reported that this duty to a patient also depended on a patient’s specific circumstances or the reason the forms were not valid. One physician mentioned how he would contextualize the decision to perform sterilization without valid sterilization consent forms, by taking it “on a case by case basis … In general, if it wasn’t the patient’s fault, we would go ahead and do it anyway, with the knowledge that we weren’t gonna get reimbursed.” Others noted that they looked for alternative funding mechanisms, such as funds the hospital had set aside for this specific reason. Another physician from Arkansas focused on reproductive autonomy and the need for patient-specific decision-making when dealing with the age limit of 21 years old in the sterilization consent form: “I mean I feel like it should be individualized. I feel like there are certain situations that I’m very hesitant to sterilize a 20-year-old in any circumstance without I mean discussing with her at length, but I mean I have seen patients that are, based on their life situation, they have four kids. So 20, they know that they’re not gonna be able to do any kind of birth control. They’re gonna end up in the same situation, and so I think it would be a very freeing possibility for a portion of the population.”

Some physicians talked about how they had been in the field of obstetrics and gynecology for a number of years, which impacted their practice surrounding sterilization. A physician from New Mexico shared “to do tubal ligation when it’s an emergency, you have to – I’m a ‘60s product….I’m still fighting the revolution…I do it because I love what I do.” Others admitted that the level of leadership they held in the department, such as serving as chair or director of their institution, made them more comfortable providing a sterilization when the sterilization consent form was not valid. One physician, based in Texas, said, “I’m the Chief of Obstetrics so I have escalated [cases] to our hospital administration and said, ‘this is a really sick patient. We can’t access her tubal papers’ or ‘she didn’t come in for some reason to sign them in the timeframe. We think it’s medically indicated.’ They will approve it regardless of the reimbursement in those scenarios with appropriate patient informed consent.” Physicians may have also had other professional experiences that shaped their decision. For example, a physician in Ohio reflected that her military experience shaped the importance of ensuring her patients received their sterilization, “It’s a big deal in the Navy that if a patient wants a tubal, that you find a way to get it done right after delivery because then they don’t take extra time off for it.”

Regardless of whether an ob-gyn would perform a sterilization without a valid sterilization consent form, many noted that they made liberal use of the emergency justification section of the sterilization consent form, which requires a 72-hour rather than 30-day waiting period in order to fulfill a patient’s sterilization. However, as mentioned by a physician from Louisiana “it’s not really a workaround. It’s on the form.” Another physician from Texas stated that their hospital clarified the definitions of the waiting period stating, “[w]e used to think they had to sign it 30 days in advance of the actual procedure, but the re-interpretation in our hospital the last few years has been that it has to be 30 days before the due date, but if they deliver early, we can still do it.” Thus, these physicians noted they were in compliance with the policy but simply interpreting the policy generously to provide their patient’s desired sterilization.

A few, however, mentioned they used true workarounds, including backdating the sterilization consent form. A physician from Rhode Island reported, “She’s had a plan for sterilization all along, but she just didn’t sign the form and you even talked about it…I’m afraid to admit this, but backdated those a couple of times where you’re scheduled for the C-section next week, and you didn’t sign your form,”. Another physician from Nevada said, “I’m sure everyone has done that. I’m sure we’ve backdated a form also, especially if we know we have a copy of it, backdated it in the hospital.” One physician from New Mexico said that while they would feel uncomfortable changing the date, they have “put a time that might be backdated by six or eight hours so I could get it under the 72 hours for a preterm delivery.”

Of those ob-gyns who stated they would not perform a sterilization without a valid sterilization consent form, most worked at a large institution and mentioned getting a clear message from a risk management department that advised that they never perform the sterilization without a valid sterilization consent form. A physician from California mentioned, “I would say as a medical center, as a hospital rather, there’s often confusion about the definition and the rules…we always bounce it back up to risk management when we have a question.” Although in most cases risk management advised the sterilization not be performed, the same physician noted that their risk management has allowed a sterilization consent form to be backdated when the clinical note demonstrated that the patient had signed the form during their visit. Another physician from Rhode Island shared why she never performed one without the form, no matter the circumstances, saying “the hospital won’t let us…it’s just a blatant refusal. They don’t care.” Several physicians noted that the times have changed, and largely attributed this to hospital administration reacting to the high costs of unreimbursed services due to sterilization consent forms not being valid, leading one physician to say “they’re [hospital administration] very strict about it now. Before they weren’t as strict.” One physician in Ohio also commented that other healthcare professionals were sometimes a barrier to sterilization completion when the sterilization consent form was not valid as they were worried about the hospital’s response stating, “the nurses have no qualms about turning you in for those things and anesthesia has no qualms of turning you in for those things.”

Physicians were largely unclear about the financial implications of performing a sterilization without a valid sterilization consent form, though it served as an important reason many physicians would not perform the procedure. The loss of funding ranged from services not being reimbursed to the institution or practice losing the entire Medicaid contract. A few physicians mentioned that the entire delivery hospitalization would not be covered because of a valid sterilization consent form, with one physician sharing, “I’m sure that it intimidates some doctors into not wanting to do the surgery without having a form that’s dated correctly.” Some physicians who worked at public hospitals worried about the implications to the entire hospital as a result of performing a sterilization without a valid sterilization consent form. One physician from California shared “what I’ve always been told…is that you’re at risk of losing your Medicaid contract, which would basically mean losing our financial, we’re a nonprofit…we can’t afford to have any problems with government funding.” Another physician from Texas said “I think it sort of puts the institution at risk…We’ve got to make sure that we continue as a safety net.”

Beyond institutional financial implications, some physicians cited concerns about insurance fraud and the potential illegality of performing sterilizations without a valid sterilization consent form. One physician in New Mexico said, “I don’t wanna be penalized…maybe fined or something.” Another physician from Arizona added that the government “could probably accuse you of fraud or something.”

Discussion

While all ob-gyns in this qualitative study generally followed the Medicaid sterilization consent form policy, almost half had performed a desired sterilization without a valid sterilization consent form in the past due to an ethical obligation they felt they had toward their patient’s health. Those who had performed a desired sterilization without a valid sterilization consent form tended to be more senior or in a position of authority and were more likely to liberally utilize the exceptions that shorten the waiting period or backdate the form. Those that did not provide sterilizations without a valid sterilization consent form worked at large institutions with more oversight and were concerned with the financial and potentially criminal repercussions. This heterogeneity in physician practices surrounding the Medicaid sterilization policy is important to note given the impact on patient care and reproductive autonomy, as well as given the larger policy implications.

It is important to note that ob-gyns were largely unclear of the repercussions of proceeding without a valid sterilization consent form. Interviewees felt that the financial ramifications ranged from loss of payment for the sterilization procedure alone to loss of payment for the entire pregnancy global fee and delivery hospitalization. Some also worried that their hospital could lose its entire Medicaid contract. While the federal policy specifically states that loss of funding is for the procedure itself only, studies of state Medicaid officials corroborate the confusion on the part of ob-gyns given the variability in practice at the level of individual state Medicaid offices with some states denying payment for the procedure itself whereas others deny payment for the entire pregnancy global fee and hospitalization.^18,19 Additionally, the possible legal repercussions of proceeding without a valid sterilization consent form are also unclear and could potentially range from insurance fraud to performing surgery without adequate consent. Increased education as well as transparency, clarity, and uniformity regarding the repercussions are important so that ob-gyns and institutions are able to offer comprehensive patient-centered contraceptive options without unnecessary barriers. Falsely inflated financial repercussions may lead ob-gyns to decline performing sterilizations for women with Medicaid without valid forms, resulting in a loss of reproductive autonomy for these patients. Further, as those with private insurance do not require a valid sterilization consent form, this hesitancy leads to inequitable treatment or a tiered healthcare system.

Second, many interviewed ob-gyns did not routinely use the exceptions (premature delivery and emergency abdominal surgery) on the sterilization consent form that shortened the waiting period to 72 hours rather than 30 days. Prior studies have demonstrated a lack of clarity and consistency between states regarding the definition of the terms of “premature delivery” and “emergency abdominal surgery” both on the part of physicians and state Medicaid offices.^10,18–20 Therefore, as long as the current form and waiting period remain standard, providing greater clarity on the conditions under which the waiting period can be shortened would allow for more consistent use and could potentially increase the number of desired sterilizations performed as utilizing them is in compliance with the federal policy.

Limitations to this study include the fact that some physicians may not have fully disclosed their practices surrounding postpartum sterilization during interviews due to legal concerns. Second, the potential for response bias exists as those whose practices are more impacted by the sterilization policy may have been more likely to participate and share their experiences. While racialized identity may impact physician beliefs and practices, we did not ask our participants about their racial and ethnic identity and therefore are unable to comment regarding this association or the impact on our study findings. Finally, given this is a qualitative study, we cannot comment on the prevalence of these practices.

In conclusion, while it is important to respect the intent of the Medicaid sterilization policy to protect the most vulnerable from coercion, our study – like many others before it – demonstrates that the current policy may serve as a barrier to care and that there is a great deal of variation surrounding its practice. Improved clarity regarding the terminology of the policy is needed so that false barriers to desired care are not imposed on patients by a rule that is intended to protect them. Further, transparency regarding the repercussions is necessary so that physicians who feel compelled to provide sterilization without a valid sterilization consent form are aware of the actual ramifications of doing so. Regardless, a patient’s access to desired care cannot depend on the individual characteristics of her ob-gyn. Therefore, thoughtful revision to the Medicaid sterilization policy is needed to ensure that the policy is equitable and serving its intended purpose.