GAB Decision 387
February 25, 1983 Ohio Department of Public Welfare; Docket No. 82-219
Ford, Cecilia; Garrett, Donald Settle, Norval
The Ohio Department of Public Welfare (State) appealed a disallowance
by the Health Care Financing Administration (Agency) of $6,301 in
federal financial participation (FFP) claimed by the State for the costs
of certain medically necessary abortions claimed under Ttitle XIX
(Medicaid) of the Social Security Act for the period September 19, 1980
to November 9, 1980. 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
/1/ as required by Agency regulations.
The State did not contend that it could provide the required
documentation and certification, or that the abortions were performed
under the circumstances for which FFP was allowed by the Hyde Amendment.
The State claimed that it was entitled to FFP because it paid for
non-Hyde abortions, performed from September 19, 1980 to September 25,
1980, pursuant to an order of the U.S. District Court for the Southern
District of Ohio. The State argued that its claim for FFP is supported
by a federal regulation at 42 CFR 431.250(b)(2) (1980), which reads in
pertinent part: "FFP is available in expenditures for . . . (b)
Payments made . . . (2) For services provided within the scope of the
Federal Medicaid program and made under court order." The order enjoined
the State from refusing to pay for all medically necessary abortions;
it did not direct the Agency to provide FFP. The State also alleged
that it should receive FFP for abortions performed after that order was
lifted because federal regulations required the State to give Medicaid
recipients 10 days notice, and in (2) some cases a hearing, prior to
reducing abortion services and because federal regulations allowed for
FFP during the hearing process. /2/
As explained below, we uphold the Agency determination. The Agency
reasonably determined that its authority to pay for non-Hyde abortions
was limited by the Amendment's unequivocal restriction on the use of
appropriated funds.
I. Previous Board Decisions on FFP for Non-Hyde Abortions
Upon receipt and review of the State's appeal, the Board issued an
Order requiring both the State and the Agency to show cause why the
Board should not uphold the disallowance based upon Board Decisions Nos.
260, 305 and 346. The issues raised in those appeals were similar to
those raised by the State here.
In Joint Consideration -- Abortion Funding, Decision No. 260,
February 28, 1982, several states appealed disallowances of FFP for
non-Hyde abortions, arguing mainly that they were entitled to FFP
because they paid for abortions pursuant to federal court orders. The
Board denied those appeals. The Board determined that, because the Hyde
Amendment was a specific limitation on the use of appropriated funds,
and because the court orders did not also direct the Agency to
partticipate in the pahments, the Agency did not have the authority to
provide FFP contrary to the terms of the Hyde Amendment. Further, the
Board found that the Hyde Amendment prohibition against FFP for
aborttions effectively superceded the Agency's regulations at 45 CFR
205.10(b)(3) (now 42 CFR 431.250(b)(2)), which provided for federal
participation in certain payments which states made under court orders.
The Board said that no interpretation of the regulation could overcome
Congress' specific prohibition against funding the abortions. Id., p.
14.
The Board relied on Decision No. 260 when it denied a previous appeal
by the State of Ohio for the costs of aborttions paid pursuant to court
orders and during the notice period. Ohio Department of Public Welfare,
Decision No. 305, May 28, 1982. In that decision the Board elaborated
on the notice issue and held that even where the State was required to
give notice prior to reducing Medicaid services, FFP was not available
because of the Hyde Amendment's restrictions. The Board found that (3)
The State had not shown that the Agency had an obligation to provide
FFP during the notice period which superceded the specific prohibitions
in the appropriations laws against using funds to pay for abortions.
In Pennsylcania Department of Public Welfare, Decision No. 346,
September 30, 1982, the Board relied on Decision No. 260 and Decision
No. 305 when it considered and rejected a notice period argument by the
Commonwealth of Pennsylvania.
The State has also raised these same issues before the Board in Ohio
Department of Public Welfare, Decision No. 347, September 30, 1982.
Although that appeal involved a different time period, the State made
the same arguments regarding the court order and the notice period as it
has made in this appeal. the Board rejected the State's arguments in
Decision 347, primarily on the basis of its conclusions in Decision No.
260 and Decision No. 305.
II. The Parties' Arguments
The Agency argued that the disallowance should be upheld based on the
reasoning in the Board decisions discussed above. The State did not
present any new arguments as to why the Board should not rely on its
previous decisions and sustain this disallowance.
III. Conclusion
Based on our previous analysis of the issues raised in this case, as
discussed above, and the State's faulure to demonstrate why that
analysis should not be applied here, we uphold the Agency decision to
disallow the $6,301 in FFP claimed by the State. /1/ Some version of
the Hyde Amendment has been a rider to this Department's
appropriations since 1977. 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 sevefral versions of the
Amendment (and the implementing regulations at 42 CFR Part 441) 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 this case. Therefore, we use the term "Hyde
Amendment" in a generic sense. See, Pub. L. 95-205, Sec. 101; Pub. L.
95-480, Sec. 210; Pub. L. 96-86, Sec. 118; Pub.L. 96-123, Sec. 109.
/2/ Regulations at 42 CFR 431.211 (1980) required the State to mail
notice 10 days prior to the date of the action; 42 CFR 431.230 required
the State to maintain services until a hearing decision was issued or
until there was a determination that the sole issue was one of federal
or State law; and 42 CFR 431.250 said that FFP was available in payment
for services continued pending a hearing decision.
OCTOBER 22, 1983