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Medicaid, Planned Parenthood and the law

By Aaron Carroll,

I was lucky enough to go to a small liberal arts college that encouraged you to try and take classes in a variety of subjects. One of my favorites was “Legal Institutions and Democratic Practice.” The thrust of it was a discussion of how the Supreme Court has used judicial review to effect social change throughout American history. It was totally irrelevant to my pre-med education, but there’s no class I think about more often two decades later.

Many people are focused on how the courts might rule on the individual mandate. Here in Indiana, though, we’re also watching how the courts might rule on HB 1210:

Prohibits state agencies from entering contracts with or making grants to any entity that performs abortions or maintains or operates a facility where abortions are performed. Cancels state funding for any current contracts with or grants to any entity that performs abortions or maintains or operates a facility where abortions are performed.

This is, of course, the bill that defunds Planned Parenthood.

Really, though, what this bill says is that Medicaid money can no longer go to Planned Parenthood. No one is stopping you from spending your own money there. Nor is anyone prohibiting private plans from covering services at Planned Parenthood. This is just stopping Medicaid recipients from getting care at Planned Parenthood.

Now, it’s important to note that no Medicaid money was going to abortions; that would violate federal law. If you were a Medicaid recipient and you went to Planned Parenthood to get an abortion, you had to find some other way to pay for it. What’s new is that the bill now prevents Medicaid recipients from going to anyone who provides abortions, including Planned Parenthood, for any type of care.

This is a potential problem, according to the Indiana Legislative Services Agency (pdf):

The Family and Social Services Administration (FSSA) reports that federal law requires state Medicaid plans provide any eligible individual medical assistance and that they can obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service(s) required. This also includes an organization which provides such services, or arranges for their availability, on a prepayment basis. Federal law permits states to define a qualified provider, but requires that this definition is related to a provider’s ability to perform a service and not what services are provided.

It seems that federal law stipulates that state Medicaid programs have to allow recipients to obtain services from any qualified provider. States can define “qualified,” but only with respect to whether they can actually provide the service. In other words, it appears they can’t be ruled “not qualified” because they also provide abortions.

And the feds are going to play hardball, reports Sarah Kliff:

Media outlets previously mused that Indiana stood to lose about $4 million in family planning funds, of which Planned Parenthood had previously received $3 million.
“If funding is cut off, CMS could look at that, and that could jeopardize the other funding that we get from them around family planning services,” Family and Social Services Administration Secretary Michael Gargano told the Indiana Star in April.
But a source at CMS told POLITICO there’s much more at stake, namely, the entirety of Indiana’s federal Medicaid funding. That came in at $4.3 billion last year, according to the nonpartisan Kaiser Family Foundation. That accounts for about two-thirds of the state’s $5.9 billion Medicaid budget.
“We are working with Indiana and fully expect that the state will follow the federal law that sets the conditions for its receipt of more than $4 billion in Medicaid funds,” the CMS source said.

Losing any significant portion of that money would be a crushing blow to Indiana. But it appears that, for now, the Indiana attorney general is going to defend the statute.

I imagine this means the courts will have to determine which law trumps the other. It’s times like this I wish I’d taken more classes like LJST-03. That link shows it’s still being taught. If you’re at Amherst College next spring, avail yourself of the opportunity. Tell Professor Douglas I sent you.

Aaron Carroll is a pediatrician, health services researcher and associate professor of pediatrics at Indiana University School of Medicine. He blogs at The Incidental Economist and tweets via @aaronecarroll.

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