GAB Decision 305
May 28, 1982 Ohio Department of Public Welfare; Docket Nos.
81-131-OH-HC, 81-156-OH-HC, 81-157-OH-HC, 81-195-OH-HC, 82-24-OH-HC
Ford, Cecilia; Garrett, Donald Settle, Norval
The Ohio Department of Public Welfare (State) appealed disallowances
by the Health Care Financing Administration (Agency) of a total of
$304,460 in federal financial participation (FFP) for the costs of
certain abortions claimed under Title XIX of the Social Security Act.
The Agency disallowed the claims because they were not supported by
documentation and certification that the abortions were the type for
which federal funding was allowed under the Hyde Amendment, as required
by regulations at 42 CFR 441.203 through 441.208. /1/
The State claimed that it is entitled to FFP because it made payments
for non-Hyde abortions pursuant to an order of the U.S. District Court
for the Southern District of Ohio. The Order did not direct the Agency
to provide FFP. The State also argued that it should receive FFP for
abortions performed after the injunction was lifted because, although it
was no longer directed to pay for the abortions by a court order,
federal regulations at 42 CFR 431.211 (1979) required the State (2) to
give Medicaid recipients 10 days notice prior to reducing abortion
services. /2/ The State did not contend that it could provide the
required documentation and certification, or that the abortions were
performed under the circumstances described in the Hyde Amendment. /3/
Further, the State argued that the notice of disallowance in one of the
appeals was procedurally deficient. /4/
The parties agreed that the focus of briefing would be on why the
Board should not reach the same decision in these cases as it did in (3)
Joint Consideration -- Abortion Funding, Decision 260, February 26,
1982. /5/ In that decision the Board held that, because the Hyde
Amendment was a specific limitation on the use of appropriate funds, the
Agency did not have the authority to participate in abortion payments
except as provided in the Amendment. Further, the Board held that even
though the States had paid for abortions at the direction of federal
court orders, the Agency did not have the authority to provide FFP
contrary to the terms of the Hyde Amendment because the orders did not
also direct the Agency to participate in those payments.
Payments Pursuant to Court Order
The State said that although it "takes issue with" the Board's
holding that the Hyde Amendment restrictions were not overcome by court
orders which did not direct the Agency to make payments, "the State sees
no reason why Decision No. 260, as to the court order issue, should not
be controlling." State's Brief, p. 1. We agree. Therefore, based on
the analysis in Decision No. 260, the disallowances of FFP in abortion
payments the State made pursuant to the court order are upheld.
Payments During Notice Period
The State claimed that it should receive FFP for a period of time
after the injunction was lifted because it was required by federal
regulations to give recipients 10 days notice that certain abortion
services would no longer be covered. The State said that Decision No.
260 did not resolve the issue of FFP for abortions performed during the
notice period and referred for support to a statement in footnote five
of the decision. Footnote five discussed a Grantee's claim to FFP
during the notice period. The statement to which the State referred
said that the Grantee had not shown that it was required to give notice
when the scope of Medicaid coverage was reduced by law. The State
claimed, however, that Ohio was required to give notice under that
circumstance, and cited several district court cases to support its
position. /6/ The State argued that since it could show that it was
required to give notice, the State should receive FFP during the notice
period. We are (4) not persuaded by this argument. The State takes the
statement from the footnote out of context. That statement also said
that "even if (the Grantee) was required to give notice, that does not
necessarily mean that the Agency had the authority to participate in
those payments," and referred the reader to the Board's discussion of
the Agency's authority to expend funds when appropriation legislation
prohibited such expenditures. The issue here (and in the previous
cases) is not whether the State was obligated to give notice prior to
reducing Medicaid services, but whether the Agency was obligated to (or,
more accurately, had the authority to) participate in the costs of
abortions performed in that period. The Agency's authority to expend
funds for abortions was specifically limited by the restrictions in the
Hyde Amendment. The State has not shown that any obligation which the
State may have had to fund abortions during a notice period imposed on
the Agency a comparable obligation which superceded the Hyde Amendment's
specific prohibition against using this Department's funds to pay for
abortions. As we discuss at greater length in Decision No. 260, the
Agency was without authority to overcome the specific strictures of the
appropriation limitations in the Hyde Amendment, however equitably
compelling the circumstances may appear to have been.
Conclusion
Based on the foregoing, and on the analysis in Decision No. 260, the
Board concludes that the Agency disallowances of $304,460 in FFP must be
upheld. While the kind of equitable relief the State seeks may be
available in another forum, neither the Agency, nor this Board, has the
power to overcome the Hyde Amendment's unequivocal restriction on the
use of appropriated funds. /1/ Some version of the Hyde Amendment has
been a rider to this Department's appropriations since 1977, and
the Agency first published regulations implementing the Amendment in
February, 1978. Each version of the Amendment said that none of the
funds appropriated to the Department could be used to perform abortions
except under the certain specific circumstances listed in the Amendment
(e.g., where the life of the mother would be endangered if the pregnancy
were carried to term). Although the several versions of the Amendment
(and the implementing regulations) in effect during the disallowance
period varied with respect to the types of abortions which could be
funded, the State did not raise those differences as an issue in these
cases. Therefore, we use the term "Hyde Amendment," as the parties
did,
in a generic sense. /2/ Docket Nos. 81-131-OH-HC, 81-156-OH-HC and
81-157-OH-HC involve $195,743, $27,387 and $6,869, respectively,
in FFP claimed for abortions performed from September 19, 1979 through
February 18, 1980 (when Ohio was under court order to pay for all
medically necessary abortions). Docket Nos. 81-195-OH-HC and
82-24-OH-HC involve $65,246 and $9,215, respectively, in FFP claimed for
abortions performed during the same time period and after September 19,
1980 (in order to allow Ohio time to notify Medicaid recipients that
abortion services would be reduced). The period from February 19
through September 18, 1980 is not at issue here. The Agency provided
FFP for medically necessary abortions performed during that period
because the U.S. District Court for the Eastern District of New York had
enjoined the Agency from giving effect to the Hyde Amendment. McCrae v.
Secretary of U.S. Department of Health, Education, and Welfare, Civ.
No. 76C 1804 (E.D. N.Y., January 15, 1980) /3/ In its Brief
(dated April 9, 1982), the State said that it was reviewing its records
to determine if any of the abortions for which FFP was claimed may have
actually met the federal requirements in effect during the priods
covered by the disallowances. The State did not, however, provide any
further information about that possibility. Nothing in this decision
precludes the State from submitting such documentation to the Agency for
consideration. /4/ The State maintained that the notice of
disallowance in 81-131-OH-HC was procedurally deficient because the
person who signed for Tera S. Younger, the Acting Director, Bureau of
Program Operations, HCFA, did not have a written designation of
authority to issue disallowances. We need not reach this issue because
the Agency notified the Board that Ms. Younger has ratified and affirmed
the disallowances. /5/ That decision involved appeals by several
States which raised legal and factual issues similar to those presented
here. The State participated in a conference on abortion funding issues
held in those cases. However, Decision No. 260 did not decide Ohio's
appeals because the State had not yet had full opportunity to present
its case to the Board at the time the decision was issued. /6/
Becker v. Toia, 439 F. Supp. 324 (S.D. N.Y. 1977); Turner v. Walsh,
435 F. Supp. 707 (W.D. Mo. 1977); and Budnicki v. Beal, 450 F. Supp.
546 (E.D. Pa. 1978).
SEPTEMBER 22, 1983