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Feds Deny Women's Health Renewal

Language intended to exclude Planned Parenthood may jeopardize entire program

By Jordan Smith, Fri., Dec. 23, 2011

In a letter dated Dec. 12, the U.S. Department of Health & Human Services' Centers for Medicare & Medicaid Services denied Texas' application to renew the successful Women's Health Program, citing the state's impermissible narrowing of the provider base to exclude Planned Parenthood from any participation.

The WHP is a Medicaid-waiver program that offers low-income and uninsured women ages 18-44 who wouldn't otherwise be eligible for Medicaid an opportunity, unless pregnant, to receive preventative health and family planning care. The program, devised by lawmakers in 2005, was conceived as a way to save the state money and to prevent unwanted pregnancies. It has so far done just that: In 2009, according to the state's Health & Human Services Commission, the program averted 10,300 Medicaid-paid births, saving the state roughly $46 million in all funds. Indeed, the program is paid for by a 90-10 match from the feds – for every $1 the state kicks in, the feds throw in $9. In other words, it's a great deal for Texas, especially when you consider that 56% of all Texas births are paid for by Medicaid; in 2009 alone, that cost the state $2.7 billion.

But the future of the program is now in jeopardy. At issue is new language crafted to eliminate Planned Parenthood from providing any WHP services. This is no small issue, given that in 2008 PP was the single largest provider of such services. But because some PP clinics provide legal abortion services – though none with tax money – lawmakers directed HHSC to ask the feds to reauthorize the program, but with new language that redefines the word "affiliate" in an effort to squeeze PP out of the loop. Because the WHP is a waiver program, it is up to the feds to consider whether the language fits with legal restrictions for funding under Title XIX, which funds Medicaid.

The prevailing wisdom coming from providers and health care advocates was that targeting and excluding a specific provider – in this case PP – based on its providing legally protected abortion services to private-pay clients would not pass legal muster. Indeed, in the Dec. 12 letter, the Centers for Medicare & Medicaid Services concludes that the new "affiliate" language does just that. The feds "will not approve the State's request for authority to deviate from the requirements of [Medicaid] in order to restrict beneficiary choice of family planning providers," CMS Director Cindy Mann wrote.

Although the initial WHP waiver contained a provision excluding abortion providers from participation, that measure was never enforced as a wedge to exclude PP. Last year, Sen. Robert Deuell, R-Greenville, asked Attorney General Greg Abbott if it would be legal to enforce that provision and to exclude PP; Abbott agreed that it would. As such, state health officials this spring began a process of rewriting the definition of the word "affiliate" in order to eliminate PP as a health care provider choice for women; under the new definition, being affiliated with an abortion provider means any connection – so PP clinics that don't offer abortion care would nonetheless be banned since they are essentially members of the same umbrella nonprofit.

According to stats provided to the Health & Human Services Commission's Medical Care Advisory Committee this summer by commission staff, almost 30% of then-current program clients – just less than 130,000 in May alone, according to HHSC – are served by PP clinics. Although Kay Ghahremani, deputy director of Medicaid policy development for HHSC, told the committee that 98% of clients live within 10 miles of another provider, she had no information about whether the remaining providers had the ability to pick up tens of thousands of clients that would lose their provider should the prohibition on PP stand (based solely on May enrollment numbers, that would be roughly 39,000 women). According to an August report from HHSC, last year 80,430 women accessed WHP services at family-planning clinics, including PPs, while just over 9,000 women were seen at federally qualified health centers, one-stop medical shops that Deuell routinely champions as being the best place for women in need of preventative health and family-planning services and a replacement for the women's health care system that relies so heavily on PP for services.

Seeing the WHP crash and burn would not be good for Texas women. With the number of enrollees increasing significantly each year – from a total of 91,683 clients served in 2007 to 183,537 in 2010, and expected to top that this year – the program is both a health care and financial success. And with the Legislature's draconian cuts to the state's family-planning budget for the current biennium – stripping roughly two-thirds of the budget historically used to provide low-income and uninsured women with access to gynecological exams, cancer screenings, and birth control, among other services – the WHP was seen by many as a light in an otherwise dark landscape, a potential way for women cut from the traditional family-planning program to obtain much-needed services. According to a 2008 Guttmacher Institute report, approximately 1.5 million women in Texas are in need of these health services; before the family planning cuts made in April, the state was on average serving roughly 15% of those women. With the budget cuts in place, tens of thousands of women stand to lose access to health care. Should the WHP dissolve, potentially nearly 200,000 will also lose coverage.

According to the CMS letter, the agency remains open to working with Texas to ensure that the WHP will be renewed, and has agreed to allow the program to continue through the end of March 2012 – it was set to expire, pending renewal, on Dec. 31. Whether Texas will be willing to compromise on the "affiliate" language in order to see the program live on is unclear. Accord­ing to HHSC spokeswoman Stephanie Good­man, the agency is disappointed by the CMS decision, "which is inconsistent with federal law that gives states the authority to establish qualifications for Medicaid providers," she wrote in an email. "HHSC will continue to work with CMS to continue this important program and enforce the state's right to establish provider qualifications for the program that reflect the values of our state."

Indeed, it seems that Gov. Rick Perry agrees that the state should be able to evict from the program any provider with which lawmakers have political differences, regard­less of that provider's ability to provide the medical services sought. According to a statement released last week, Perry apparently agrees that by denying women their choice of providers, the state is helping to protect unborn children. "We are committed to protecting life in Texas, and state law prohibits giving state dollars to abortion providers and affiliates – a fact the Obama Administration ignores," he said. "I strongly urge the administration to do the right thing and grant this waiver, so Texas women can access critical preventative health services, including breast and cervical cancer screenings, rather than making them pay the price for its pro-abortion agenda."

The news did not sit well with other lawmakers, including San Antonio Democratic Rep. Mike Villarreal, who has been an advocate for the WHP and who hopes that the state will work with CMS to ensure the program lives on. "Instead of playing politics with women's health, state leaders need to use this time to find a way to continue the critical health services that Texas women rely on," he said.

Number of Women's Health Program Enrollees

200791,683
2008144,040
2009151,989
2010183,537

The federal government has denied the state's effort to renew its successful Women's Health Program, which serves a growing number of low-income clients each year, because of Texas lawmakers' decision to exclude Planned Parenthood from participating in the program.

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