Feds May Block Effort to Force Out Planned Parenthood

GOP lawmakers have gone to great lengths to force Planned Parenthood out of Texas’ Medicaid Women’s Health Program, which provides family planning and reproductive health care — but not abortions — for more than 100,000 low-income women every year. They’ve considered legislation and passed budget riders. They’ve asked for opinions from the Texas attorney general. A hearing at the Texas Health and Human Services Commission (HHSC) Thursday is expected to try to seal the deal by clarifying regulatory language to exclude Planned Parenthood from the state program.

But the Obama administration may have headed off their plans. Last week, federal officials shot down an Indiana plan to prohibit the use of Medicaid funds — the joint state/federal dollars that cover poor children, pregnant women and the disabled — at Planned Parenthood clinics. And the director of the Centers for Medicaid and Medicare Services (CMS) sent a memo to all 50 states reminding them that while Medicaid doesn’t fund abortions, Medicaid programs can’t exclude health care providers who offer them. States that don't comply could risk the loss of federal Medicaid funds.

“Texas and Indiana — it’s a very similar situation,” said Sarah Wheat, a spokeswoman with Planned Parenthood of the Texas Capital Region. “When you read what CMS sent to Indiana, it’s very clear that the states cannot exclude certain health centers.”

But while the federal guideline seems straightforward, anti-abortion Texas officials say it’s more complicated. The state Women’s Health Program, where Texas is trying to force out Planned Parenthood, is classified as a “Medicaid waiver” program: It extends Medicaid to women who don’t qualify for it, but whose unplanned pregnancies — and future babies — would. Under federal rules, waiver programs are sometimes exempt from the “freedom of choice” provisions that let Medicaid patients decide where they seek care. It's not clear, however, whether the Women's Health Program would qualify for such an exemption.

“We’ve got to make sure exactly what they’re doing, and see the ramifications,” said Sen. Bob Deuell, R-Greenville, who backed legislation this session to keep Planned Parenthood out of the Women's Health Program, and who has been corresponding with CMS this week to see if that program applies. “Gosh, if they cut off all of our Medicaid funding, that would not be good, even if it was just family planning funding.”

In Indiana’s case, federal officials rejected the law Gov. Mitch Daniels signed this spring, arguing that states can’t pick and choose where Medicaid recipients receive care. The Indiana law would have eliminated slightly more than $1 million in annual payments to Planned Parenthood, which serves more than 9,000 Medicaid women a year in that state, according to USA Today. And it risked the state's $4 million in Medicaid funds earmarked for family planning.

For Texas, far more could be at stake. For every $1 Texas puts into its Women’s Health Program, the feds contribute $9 — to the tune of $35 million this year. Of the roughly 125,000 women served by the program annually, 46 percent get care at a Planned Parenthood clinic. If the feds were to clamp down on Texas’ efforts to exclude the provider, the state could risk nearly $150 million in federal family planning dollars annually, between the Women’s Health Program and other state family planning services, according to HHSC data.

Brian Cook, a spokesman for the Centers for Medicaid and Medicare Services, said in an email that Medicaid “does not allow states to stop beneficiaries from getting care they need… just because their provider offers certain other services” — like abortion.

But Texas officials suggest the federal government may have it wrong: “Our attorney general believes that we have the right to limit how those tax dollars are spent,” HHSC spokeswoman Stephanie Goodman said. Gov. Rick Perry’s office called the CMS ruling “another example of the Obama administration continuing to circumvent state authority.”

When lawmakers created the Women’s Health Program in 2005, they explicitly banned clinics that “perform or promote elective abortions,” or are “affiliated” with those that do. But the “affiliate” definition was interpreted loosely — many Planned Parenthood clinics have completely separate business organizations from the parent organization — and HHSC didn’t enforce it, fearing it might be unconstitutional.

This winter, Attorney General Greg Abbott released a series of opinions, indicating that there was no constitutional problem, and giving HHSC the go-ahead to force out Planned Parenthood. After a legislative session in which lawmakers markedly curbed family planning dollars, but failed to further write out Planned Parenthood by statute, the first of HHSC’s rule-making hearings is slated for tomorrow, before the Medical Care Advisory Committee. 

Now, the federal bulletin leaves more questions than answers. In an email on Friday, Deuell asked CMS officials whether the law regarding “choice of providers” applied to all federally funded family planning programs across the board. CMS said yes, “except if the services are provided under a Medicaid waiver.” Deuell said he’s waiting for more details on the waiver exception. But some health care observers say this waiver exception only exists in very limited cases, and that Texas’ Women’s Health Program won’t apply.

“This is an incredibly effective, positive program by any measure,” said Wheat, with Planned Parenthood. “The idea that officials are taking steps to exclude the health centers that see the most clients — it’s clearly politics at its worst.”