GAB Decision 375
January 25, 1983 Georgia Department of Health Assistance; Docket No.
82-209 Ford, Cecilia; Garrett, Donald Settle, Norval
The Georgia Department of Medical Assistance (State) appealed a
decision by the Health Care Financing Administration (Agency)
disallowing federal financial participation (FFP) claimed by the State
under Title XIX of the Social Security Act (Medicaid). The Agency
disallowed $167,392 in FFP claimed by the State for abortion services
performed during the periods December 7, 1979 to February 18, 1980 and
September 30, 1980 to March 31, 1982. The State appealed the entire
disallowance. Upon receipt of the State's appeal, the Board determined
that the sole issue raised in this appeal was virtually identical to
that present in Board Decisions Nos. 260 and 305. In Joint
Consideration-Abortion Funding, Decision No. 260, February 26, 1982, the
Board found that the clear language of the Hyde Amendment /1/ restricted
the agency's authority to expend federal funds for the abortions in
question and that the restriction was not overcome by court orders which
did not direct the Agency to make payments. In Ohio Department of
Public Welfare, Decision No. 305, May 28, 1982, the Board, in addition
to reaffirming Decision No. 260, held that, even where a state arguably
may have been required by federal regulation to give notice prior to
reducing Medicaid abortion services, (2) FFP was not available because
of the Hyde Amendment's restrictions. Based on those decisions, the
Board ordered both parties to show cause why the Board should not uphold
this disallowance based on its earlier analysis. For the reasons
outlined below, we uphold the Agency disallowance determination.
I. Background
The State has provided the following background to this appeal:
In May 1979, the State was named as a defendant in a lawsuit,
originally brought in United States District Court, which challenged
State statutory restrictions on the funding of abortion services for
Medicaid recipients. Doe v. Busbee, 471 F. Supp. 1326 (N. D. Ga.
1979). The State indicated that, at the time of the suit, its laws
limited Medicaid reimbursement for abortions to situations where (1) the
life of the mother would be endangered if the fetus were carried to
term; (2) severe and long-lasting physical health damage to the mother
would result if pregnancy were carried to term; or (3) the mother was a
victim of rape or incest, and the incident was reported promptly. These
provisions paralleled the then-existing provisions of the Hyde
Amendment. (State's Brief, pp. 2-3)
On June 4, 1979, the District Court entered a preliminary injunction
which enjoined the State from refusing to provide Medicaid reimbursement
for all medically necessary abortions. Shortly after the injunction was
issued, the State sought to join the Department of Health, Education and
Welfare (now Health and Human Services) (Department) based upon the
State's risk of incurring inconsistent obligations. The Court denied
the defendant's motion for joinder. On December 7, 1979, the District
Court granted plaintiff's motion for summary judgment, and permanently
enjoined the State from restricting Medicaid reimbursement for medically
necessary abortions insofar as such restrictions were inconsistent with
Title XIX, notwithstanding restrictions present in the Hyde Amendment.
The State appealed to the United States Court of Appeals for the Fifth
Circuit. In December 1980, the Fifth Circuit granted the State's motion
to remand the case to the District Court for reconsideration in light of
the Supreme Court decisions in Harris v. McRae, 448 U.S. 297 (1980), and
Williams v. Zbaraz, 448 U.S. 358 (1980), which held that a state is not
required under Title XIX to fund medically necessary abortions for which
Congress has withheld FFP pursuant to the Hyde Amendment. In January
1981, the District Court vacated its December 1979 order and dismissed
the plaintiff's complaint. (State's Brief, pp. 2-4)
II. Analysis
The State responded to the Board's Order to Show Cause by requesting
the following relief: (1) that the Boar stay proceedings in this appeal
(3) pending the outcome of the court appeals which have resulted from
Board Decision No. 260, or (2) that the Board reverse the disallowance.
We deny the State's request for a stay and uphold the disallowance.
A. The Stay
At this time, both the Commonwealth of Massachusetts and the State of
Illinois are appealing Board Decision No. 260. /2/ The State urged the
Board to stay this appeal based on several federal court decisions which
the State claims support the proposition that a tribunal may enter a
stay of an action before it, pending resolution of independent
proceedings which bear heavily on the case-in-chief, for tthe sake of
judicial and administrative economy, especially where the issues are
identical. (State's Brief, pp. 6-7) The Agency relied upon the Board's
rationale in Decision No. 260 as the basis for the disallowance and
argued that the Board should decide the appeal without delay.
We do not agree with the State that administrative economy would be
served by granting a stay in this appeal. The State has not presented
any rationale to support its request other than to note circumstances
under which a stay may be appropriate. An adverse decision in this
appeal would not affect any right the State has to appeal the Board's
decision to federal district court. Given the current status of this
appeal and the State's potential judicial remedies, we believe that to
issue a stay for an indefinite period of time would be more of a burden
than a benefit to the administrative process in which the appeal is
involved.
B. The Disallowance
The Board's Order to Show Cause directed both the State and the
Agency to show cause why the Board should not uphold this disallowance
on the basis of its Decisions Nos. 260 and 305.
In response to the Order, the State sought to distinguish its case
from Decision No. 260 by pointing out that it sought to join (albeit
unsuccessfully) the Department as a defendant in Doe v. Busbee, supra.
while the States in Decision No. 260 did not even request joinder. The
State cited Decision No. 260 which stated that "the fact that the State
did not request (joinder of the Department) has to be at least a
contributing factor (to the courts not ordering the Department to
reimburse the states)." Decision No. 260, p. 13. (4)
The language from Decision No. 260, relied on by the State, was not
the basis of that decision and referred to the specific factual
situations in those appeals, in which the states did not even request
that the Department be joined. The Board did not intend to imply that
if a court rejected a state's request to join the Department, the
Departmentt would nevertheless be bound by the court's ruling. The fact
remains that, in this appeal, the District Court did not order the
Department to provide FFP for payments made by the State for abortion
services. Thus, the legal issue raised in this appeal is not
substantially different than the issue raised in the appeals before the
Board in Decision No. 260, and the State has persented no presuasive
argument why we should not uphold this disallowance.
III. Conclusion
The issue present in this appeal has been extensively analyzed in
Decisions Nos. 260 and 305. Neither party has demonstrated any
substantial reason why our analysis in that decision should not control
here. Therefore, we uphold the Agency decision to disallow $167,392 in
FFP claimed by the State. /1/ The Hyde Amendment restricted the
availability of funding for medically necessary abortions and
has been a rider to appropriations acts for the Department of Health,
Education and Welfare (now HHS) since 1977. When first enacted as a
rider to the FY 1977 appropriations it read: "None of the funds
contained in this Act shall be used to perform abortions except where
the life of the mother would be endangered if the fetus were carried to
term." Pub. L. 94-439, section 209, September 30, 1976. A later version
extended funding for abortions in cases of rape and incest where
approriately reported, or where two physicians determined that severe
and long-lasting physical health damage to the mother would result if
the pregnancy were carried to term. Pub. L. 95-205, section 101,
December 9, 1977; Pub. L. 95-480, section 210 October 18, 1978. Other
versions omitted the third category of severe and long-lasting physical
health damage. Pub. L. 96-86, section 118, October 12, 1979; Pub. L.
96-123, section 109, November 20, 1979. There is no dispute here
regarding the various differences; therefore, we use the term Hyde
Amendment in a generic sense. /2/ Commonwealth of Massachusetts
v. Schweiker, C.A. No. 82-1197-N (D. Mass. 1982); State of Illinois v.
United States Department of Health and Human Services, C.A. No. 82C-4170
(N.D. Ill. 1982).
OCTOBER 22, 1983