Texas Planned Parenthood Supporters Decry New Rules for Women's Health Program

Supporters of the current Women's Health Program expressed concern yesterday that new rules for a revamped, state-run program would cause the provider base to dwindle, would interject government into the doctor-patient relationship, and could potentially leave thousands of poor women without access to basic health care or family planning services.

But unless the political will in the Governor's Mansion changes – and tips a consequent shift in the Health and Human Services Commission, which must sign off on the rules – it seems likely that the new rules will take effect later this year – by Nov. 1, if all goes according to HHSC's timeline. Under the new WHP, the state will pay the tab for services, doctors will be forbidden from discussing abortion with their patients, and Planned Parenthood will be excluded as a provider. And that worries Alexis Lohse a college student and working mother of two. "I have five college classes, two part-time jobs, two kids, a busy husband, lots of plans, and one health care provider," Planned Parenthood, she said in testimony before two associate commissioners of the Department of State Health Services, which hosted a Tuesday hearing on the proposed rules that was packed to standing room only. Thanks to her enrollment in the current federal-state partnership WHP, this summer Lohse received her first well-woman checkup in four years. If the state implements the new rules Lohse isn't sure what she'll do. "Who I choose as my healthcare provider is not the Legislature's business," she said.

At issue is the very future of the WHP. The program was designed as a Medicaid-waiver program, with the federal government kicking in 90% of close to $40 million in annual funding to provide low-income women, who wouldn't otherwise be eligible for Medicaid services unless pregnant, access to basic health care and family planning services. The program was intended to complement the traditional family planning program, historically paid for with a mix of federal funds, as a means of expanding healthcare access, and to reduce the number of unintended pregnancies in the state. More than half of all births in Texas are paid for by Medicaid. Currently, more than 1 million Texas women are in need of basic and reproductive health services.

Notably, women involved in the WHP cannot already be pregnant, but the state has nonetheless moved to cut PP out of the WHP because the nonprofit clinics that serve WHP clients – clinics that do not provide abortion services – have been deemed by the state to be affiliates of PP clinics that do provide abortions. The state also says that PP clinics "promote" abortion, which is also forbidden under the WHP. The irony of the state's position was not lost on Austin Dem Rep. Donna Howard who said that the decision to cut PP out of the program is "a very vile thing to me," and seems nothing more than "another solution in search of a problem."

The original WHP included a prohibition on allowing abortion providers from seeing clients, but that prohibition was not used as a wedge to force PP out of the mix (because then-HHSC Commissioner Albert Hawkins thought that to do so would be unlawful, at least in part because PP clinics had legally de-affiliated their family planning clinics from their abortion-providing clinics as a result of a 2005 lawsuit). When the state told the federal Centers for Medicare & Medicaid that it would exclude PP, CMS said it would not be able to give Texas any more money because the PP ban would violate federal law to restrict a woman's choice among qualified medical providers. The fiscal issue is concerning to state Sen. Kirk Watson (among other lawmakers in attendance), who noted during his testimony that under the original program, in 2010 the state kicked in less than $7 million to fund the WHP, and saw an estimated savings of approximately $88 million. That, he said, is good fiscal policy; going it alone, while the state suffers from budget shortfalls, isn't so wise. "This is a very costly action that is being contemplated by these rules," he said.

In 2010, PP clinics saw nearly 50% of all WHP clients; without PP in the mix, nearly 50,000 women will be left to find another provider. And whether there will be enough providers to see all the women eligible for services – or the more than 205,000 women who were enrolled in the program in 2011 , or even the roughly 106,000 women who actually availed themselves of WHP services last year – is entirely unclear (as is whether the state could afford to cover the costs if every eligible woman actually sought services). The state has said that women disenfranchised by the exclusion of PP would be able to find an alternate provider within 2.5 miles of where they live, but whether those providers would be able to absorb all the new clients needing a medical home is also unknown. According to Abby Johnson, the former PP clinic employee turned fervent anti-PP activist, almost 80% of women in WHP are referred by PP to other providers for for follow-up services because PP clinics do not provide "comprehensive" health services, she said at the hearing. And beyond PP, there are "close to 3,000" WHP providers for women to choose from, she said. But several speakers, including Austin PP's Sarah Wheat, noted that there is no data to suggest the remaining providers will be able to accept the thousands of new clients currently availing themselves of PP services. According to HHSC, in 2010 there were just 569 WHP providers serving 10 or more clients (the count excludes laboratories, which don't actually see clients); last year that number dropped to 549. During 2011, family planning clinics – including PP clinics – saw nearly 79,000 WHP clients.

And as a result of drastic cuts made last year to the traditional family planning budget, which served just under 212,000 additional women in 2010, a number of those family planning providers have shuttered operations. According to a survey administered by UT researchers studying the effect of the budget cuts on women's health outcomes, 33 family planning clinics have closed, while an additional 39 have reduced their hours, professor Joseph Potter with UT's Population Research Center said.

Still, whether PP should be excluded from the WHP is not up for consideration by HHSC. In an email to the Chronicle, HHSC spokeswoman Stephanie Goodman wrote that the point of the hearing was not to talk about whether PP will be excluded, but how to move forward without them. "The hearing will be on the proposed rules and how to implement state law banning abortion providers and affiliates from the Women's Health Program," she wrote on Aug. 22. "It will not be on whether to exclude them. State law is clear on that point, and we have a duty to enforce it." (Although a three-judge panel of the 5th U.S. Circuit Court of Appeals has essentially given the state the thumbs up to do just that, overturning a district court injunction blocking the PP ban, the state's PP affiliates yesterday filed with the Circuit for a rehearing by the entire court. You can find more about the legal wrangling over the proposed WHP rules here and here.)

Aside from the exclusion of PP, a number of speakers expressed concern that the rule banning any discussion of abortion between WHP providers and their patients represents an untenable intrusion into the doctor-patient relationship. That is what prompted state Sen. Sarah Davis, R-Houston, to speak up against the proposed rules. Davis learned the importance of that confidential relationship during her battle with breast cancer and she ran for office in order to help defend that relationship, she said. And if the WHP imposes on that relationship, doctors will not participate and women will not get the life-saving screenings they need. "Women's health is not about abortion, it is not about Planned Parenthood, it's about saving the lives of women," she said. This should "not be about politics," she said, it should be about good public policy.

The official public comment period on the new rules ended in August and the state is now compiling answers to those comments. The rules will not be finalized until adopted by newly-appointed HHSC Executive Commissioner Kyle Janek, an anesthesiologist and former state representative.