GAB Decision 347
September 30, 1982 Ohio Department of Public Welfare; Docket No.
82-101-OH-HC Ford, Cecilia; Garrett, Donald Settle, Norval
The Ohio Department of Public Welfare (State) appealed the
disallowance by the Health Care Financing Administration (Agency) of
$17,902 in federal financial participation (FFP) for the costs of
certain medically necessary 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 Agency regulations. /1/
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 is entitled to FFP because it paid for
non-Hyde abortions, performed September 12, 1979 to February 18, 1980
and September 18 to 25, 1980, pursuant to an order of the U.S. District
Court for the Southern District of Ohio. /2/ The Order enjoined the
State from refusing to (2) pay for all medically necessary abortions;
it did not direct the Agency to provide FFP. The State also argued 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 some cases a hearing, prior to
reducing abortion services and because federal regulation allowed for
FFP during the hearing process. /3/
This appeal is denied because the Board concludes that the Agency has
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. This decision is based on written submissions of
the parties and a telephone conference, as transcribed.
I. Previous Board Decisions on FFP for Non-Hyde Abortions.
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. Those appeals were denied.
The Board held that, because the Hyde Amendment was a specific
limitation on the use of appropriated funds, and because the orders did
not also direct the Agency to participate in those payments, the Agency
did not have the authority to provide FFP contrary to the terms of the
Hyde Amendment. Joint Consideration -- Abortion Funding, Decision No.
260, February 26, 1982. /4/ The Board also said that the Hyde
Amendment's prohibition against FFP for abortions superceded the
Agency's regulations at 45 CFR 205.10(b)(3) (now 42 CFR 431.250(b)(2)),
which provided for participation in certain payments states made under
court orders. The Board said that no interpretation of the regulation
could overcome Congress' prohibition against funding the abortions.
Id., p. 14.
The Board relied on that decision when it denied Ohio's previous
appeals for the costs of abortions the State 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 said that the
State had not shown that the Agency had an obligation to provide FFP
during the notice period which superceded the specific prohibition in
the appropriations bills against using HHS funds to pay for abortions.
II. Payments Pursuant to Court Order.
The State argued that it paid for the abortions pursuant to a federal
court order and that under 42 CFR 431.250(b)(2) FFP is allowed for
services provided within the scope of the Federal Medicaid program and
made under court order. The State did not here raise any new arguments
concerning this issue, but instead referred to briefs submitted in
previous appeals to the Board.
Since the State did not present any new arguments on why the Board
should not rule as it did in previous cases, we uphold the disallowance
of FFP in abortion payments the State made pursuant to the court order,
based on the analysis in Decision No. 260.
III. Payments During Notice Period.
As in its previous appeals, the State argued that it should receive
FFP for a period of time after the injunction was lifted because it was
required by regulations to provide notice and hearings. The State here
argued further that regulations at 42 CFR 431.250(a) and (f)(3) allowed
FFP for expenditures relating to a State's compliance with HHS mandated
fair hearings procedures. /5/
(4) We are not persuaded by this argument. The Agency's authority to
expend funds for abortions was specifically limited by the restrictions
in the Hyde Amendment even though the State was required before reducing
services to provide notice and, in some cases, hearings. 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. Further,
even though regulations at Sec. 431.230 generally allow for funding
during the hearing process, the Agency can not by regulation fund
abortion services for which funding is prohibited in appropriations
legislation. As we discussed in Decision No. 260, with respect to
regulations allowing FFP for court ordered payments, the Agency's
regulations and general policy to provide FFP in these circumstances are
inapplicable here because the Agency does not have the authority to
overcome the specific strictures of the appropriations limitations in
the Hyde Amendment. See, Decision No. 260, pp. 13-14; see, also,
Decision No. 305.
Conclusion
Based on the foregoing, and on the analysis in Decisions No. 260 and
No. 305, the Board concludes that the Agency disallowances of $17,902 in
FFP must be upheld. As we said in our previous decisions, 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. 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 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 these cases. 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/ The period from February 19 to September
18, 1980 is not at issue here. The Agency provided FFP for all
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. McRae v. Califano,
491 F. Supp. 630 (E.D. N.Y. 1980). n3 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 payments for services continued pending a
hearing decision. /4/ The State participated in a conference on
abortion funding issues held in those cases but Ohio's appeals were not
decided in Decision No. 260 because the State had not yet had an
opportunity to present its case when the decision was issued.
/5/ The State also argued that it should receive FFP because it was
required to provide notice as a result of a joint resolution of Congress
which further reduced abortion coverage for fiscal year 1981. Pub. L.
96-369 Secs. 102, 110, October 1, 1980. That resolution said that FFP
would be available for abortions in cases of rape where the rape was
reported within 72 hours. Previously, FFP was available where the rape
was reported within 60 days. The Agency argued that this change was not
relevant here because it was not the basis for disallowance. The Agency
said the disallowance was based on regulations at 42 CFR 411.203 to
441.206 and related "to the changes . . . that were at issue in the
lawsuit that was finally resolved by the U.S. Supreme Court in September
1980 . . . ." Telephone Conference Transcript, p. 4. Since the State
has not shown that any claims for FFP were denied based on the October
1, 1980 restrictions, we agree that it is not relevant to this decision.
OCTOBER 22, 1983