GAB Decision 470
Docket No. 83-155
October 26, 1983
Massachusetts Department of Public Welfare;
Ford, Cecilia; Garrett, Donald Settle, Norval
The Massachusetts Department of Public Welfare (Commonwealth)
appealed the Health Care Financing Administration's (HCFA) decision to
disallow $374,910 in federal financial participation (FFP) claimed under
Title XIX of the Social Security Act. HCFA determined that, for the
period January 1, 1979 through September 30, 1980, the Commonwealth
claimed FFP for abortion services which did not meet the requirements in
federal laws and regulations which set restrictions for abortion
funding.
The Commonwealth admitted that the issues in this case are identical
to previous cases where the Board upheld HCFA's disallowance of FFP for
abortion services claimed by the Commonwealth. See, Decisions No. 260,
March 2, 1982 and 366, December 15, 1982. /1/ For the reasons outlined
below, we uphold the HCFA decision in this case as well.
I. Arguments and Analysis.
During the disallowance period, federal regulations and the "Hyde
Amendment" prohibited FFP in costs of abortions except where the
abortion was necessary to save the life of the mother, was sought
because the pregnancy resulted from rape or incest, or (until October 1,
1979) was necessary to prevent severe and long lasting damage to the
health of the mother. /2/
(2) The Commonwealth did not claim that these abortions were the type
for which funding was allowed under the regulations or the Hyde
Amendment, but asserted that it was enjoined from refusing to pay for
abortions for eligible recipients by an injunction and subsequent court
orders of the U.S. Court of Appeals for the First Circuit. Preterm, Inc
v. Dukakis, 591 F.2d 121 (1978). The Commonwealth argued that the
Agency was also bound by the court orders and could not deny the
Commonwealth's claim for FFP.
The Agency argued that it could not provide FFP because the Court's
ruling did not order HCFA to participate in the State payments made to
providers of the abortion services or suspend the regulatory
restrictions applicable to federal funding of abortions.
In previous appeals by the Commonwealth of these same issues, the
Board found that the clear language of the Hyde Amendment restricted
HCFA's authority to expend federal funds for the abortions in question
and that this restriction was not overcome by court orders which did not
direct the Agency to make payments.
Therefore, the Board issued an Order in this case directing the
Commonwealth to show cause why the Board should not uphold this
disallowance based on its Decisions No. 260 and 366, and the Board
decisions concerning this issue which involved other States.
In response to the Order to Show Cause, the Commonwealth said that it
would be appropriate for the Board to issue a summary decision in this
case because the issues in this appeal were identical to those which
resulted in Decisions No. 260 and 366. The Commonwealth also said that
Decisions No. 305, 346, 347, and 387 are applicable here. Although the
Commonwealth reaffirmed that it disagreed with the result in the Board's
earlier decisions, the Commonwealth did not offer any new arguments
which would cause us to reexamine those decisions.
HCFA said that it did not object to a summary disposition of this
case based on previous Board decisions on this issue.
(3) II. Conclusion
Both parties have agreed that the facts underlying this appeal are
identical to those present in Decisions No. 260 and 366, and neither
party has demonstrated any substantial reason why our analysis in those
decisions should not control here. Therefore, we uphold the HCFA
decision to disallow the $374,910 claimed by the Commonwealth, based on
our analysis in Decisions No. 260 and 366, and the other previously
cited Board decisions concerning this issue (which we incorporate in
this decision). /1/ The Commonwealth has appealed Board Decisions No.
260 and 366 to the United States District Court for the District
of Massachusetts. Commonwealth of Massachusetts v. Richard Schweiker, et
al., Civil Action No. 82-1197-N. The Court has not yet issued its
decision. /2/ The Department of Health and Human Services
appropriations acts have restricted the Department's funding of
abortions since fiscal year 1977. The restrictions were in effect
during the disallowance period were: section 210 of Pub. L. 95-480
(effective October 18, 1978), section 118 of Pub. L. 96-86 (effective
October 1, 1979), section 109 of Pub. L. 96-369 (effective October 1,
1980), and regulations at 42 CFR 441.203 et seq. (1978).
NOVEMBER 14, 1984