Another State Assault on Women's Health Care

Last Thursday, Feb. 23, Texas Health and Human Services Executive Commissioner Tom Suehs approved a new agency rule that would ban Planned Parenthood from participation in the Women's Health Program – a move that, based on federal standards, most likely means the end to a successful program that in 2010 alone provided more than 180,000 low-income Texas women with access to basic health care and family-planning services.

The WHP is a Medicaid-waiver program that offers basic preventative health and family-planning care to low-income and uninsured women ages 18-44 who, unless pregnant, wouldn't otherwise be eligible for Medicaid. It was devised as a way to provide needy women with health care and to reduce the number of unintended pregnancies paid for by Medicaid – a goal that health care providers say also reduces the number of abortions.

Reducing Medicaid-paid births in Texas is no small thing. More than half of the state's births are paid for by Medicaid – in 2009 alone, Medicaid births cost $2.7 billion. The WHP is paid for by a 90-10 match from the federal government: For every state dollar, the feds contribute $9. The WHP has grown quickly, from 91,683 women served in 2007 to 183,537 in 2010. (The final numbers for 2011 aren't yet in, but HHSC has estimated that they rose yet again.)

Now, it looks likely that the program will not be continued beyond March, meaning nearly 200,000 women stand to lose access to basic health care. At issue is a newly written provision designed to exclude any Planned Parenthood clinics from providing services under the WHP. Since the program's inception in 2007, Planned Parenthood has been the single largest provider of WHP services; according to HHSC, PP clinics across the state saw 46% of all Women's Health Program clients in 2010 – more than 84,000 women enrolled. But because some PP clinics provide abortions – though none of those participating in the WHP do so – state lawmakers directed state health officials to ask the federal Centers for Medicare & Medicaid Ser­vices to allow the state to reauthorize the program with new language that redefines the word "affiliate" to exclude any Planned Parenthood clinic. The feds must now consider whether this new language accords with the legal restrictions placed on funding under Title XIX, which supports Medicaid. Put simply, Title XIX prohibits discrimination against qualified providers like Planned Parenthood. And in a December 2011 letter to HHSC, federal officials said as much, allowing an extension of the program only through March 31 while officials negotiated the renewal.

With Suehs having approved the new rule, it appears the two sides have hit a stalemate – and there is no indication that the state is interested in negotiating to keep the program alive. "Federal law allows states to administer Medicaid and set the criteria for providers in the program. That's what Texas is doing," HHSC spokeswoman Stephanie Goodman wrote in an email. "We have a state law that our Attorney General says is constitutional, and it bans abortion providers from taking part in the Women's Health Program. We can't violate a valid state law just to please Washington." (In a brief statement Feb. 24, CMS officials said they are "in contact" with Texas officials, but "can't speculate at this point" on what will happen.)

The WHP waiver has always included a ban on allowing abortion providers to participate, and none of the WHP providers perform abortions. But last year, at the behest of Sen. Robert Deuell, R-Greenville, the HHSC rewrote the definition of "affiliate" to exclude all of the state's PP clinics from program participation.

Should the new rule be allowed to stand, thus excluding roughly 50 PP clinics, nearly half of all WHP clients would be left without access to the health care provider of their choice. In a series of emails, Goodman wrote that HHSC believes there will be plenty of providers out there to absorb those clients – though the agency has no data to demonstrate that is true. The agency will be reaching out to current WHP providers to ask them to enroll additional clients, as well as other basic Medicaid providers to ask if they would like to enroll WHP clients. Yet, if those providers haven't already joined the five-year-old program, it isn't obvious what would compel them to do so now, especially considering the low rate of reimbursement – the state reimburses providers just $65.70 for an office visit by a new WHP patient and just $38.56 for established clients, according to HHSC.

But the state's unlikely calculation is only relevant if CMS decides the new Texas affiliate rule passes federal legal review; the prevailing wisdom among many women's health providers is that it does not. The state "is asking to be able to discriminate against a qualified provider because they don't like their name," says Fran Hagerty, CEO of the Women's Health and Family Planning Association of Texas, which represents a number of providers across the state. "If they meet the federal qualifications, you can't indiscriminately discriminate against [them] ... But that's what Texas is asking them to do. And Texas knows it."

Nonetheless, that is just what HHSC is officially hoping will happen. "We hope CMS will reverse its position and allow the program to continue," Goodman wrote.