Thursday July 15, 2010

HHS Moves to Block Abortion Funding in High-Risk Pools Following Controversy

By Peter J. Smith

WASHINGTON, D.C., July 15, 2010 ( – Facing allegations that federal high-risk insurance pools administered through the states may cover elective abortion, the U.S. Department of Health and Human Services now states that its guidelines will make sure Hyde amendment restrictions apply to these programs in the spirit of President Obama’s executive order.

However, until the press investigated the allegations, at least one federal plan in New Mexico was ready to subsidize elective abortions, and further revelations show that the executive order itself is silent on the matter of restricting abortion coverage under these high-risk pools.

The controversy surrounds the federal Pre-existing Condition Insurance Plans (PCIPs), a $5 billion HHS program to help those with pre-existing medical conditions unable to afford health insurance, until the health care reform law takes full effect in 2014. The HHS is directly administering the program in 21 states, while 29 states and the District of Columbia will administer the PCIPs through their own programs.

The National Right to Life Committee (NRLC) alleged that the PCIPs were going to enable the funding of elective abortion in Pennsylvania (PA) and New Mexico (NM), and possibly more states. Of the three plans that NRLC could analyze, only South Carolina had restrictions on elective abortions.

The allegations sparked a furor that provoked the HHS into clarifying Wednesday that the agency intends to apply Hyde Amendment restrictions to the PCIPs. This, however, was only after they amended an earlier statement purporting that the health care reform law and the executive order prohibited PCIPs from covering elective abortion.

“As is the case with FEHB [federal employee health benefit] plans currently, and with the Affordable Care Act and the President’s related Executive Order more generally, in Pennsylvania and in all other states abortions will not be covered in the Pre-existing Condition Insurance Plan (PCIP) except in the cases of rape or incest, or where the life of the woman would be endangered,” said HHS Spokeswoman Jenny Backus.

“Our policy is the same for both state and federally-run PCIP programs,” she continued. She added that HHS plans to reiterate this policy in guidelines for state and federal operators of the plan, and that all contracts include “a requirement to follow all federal laws and guidance.”

Rep. Bart Stupak (D-Mich.), one of the original co-authors of House language for health care reform that would have mandated a broad prohibition of federal funds subsidizing abortion except for rape, incest, or life of the mother, accused NRLC of “politicizing life issues in an effort to undermine health care reform.”

“The President’s Executive Order makes clear that federal funds may not be used for abortion under the Affordable Care Act – including the pre-existing condition insurance pools currently being implemented in Pennsylvania and states across the country,” said Stupak in a statement provided to (LSN) Wednesday.

But Mary Harned, legal counsel for Americans United for Life (AUL), explained to LSN that Obama’s executive order only applies Hyde-like restrictions to the state-run exchanges that go into effect in 2014 in the first and section sections, and the community health centers in the third section.

“But nothing in the executive order would actually apply the Hyde amendment to any other new federal funds created by health-care reform, including the funds that go into these high-risk pools,” said Harned. “The Hyde amendment does not apply to this funding, and the executive order does not correct that problem.”

Harned said the health care reform needed “a broad prohibition of federal funding for abortion” which was included in the Stupak-Pitts amendment of the House version, but never made it into the final law approved by Congress.

Rep. Joe Pitts (R-Penn.) has offered a bill called the Protect Life Act (HR 5111), which would apply the Stupak-Pitts language to health care reform. However, the bill lacks Stupak’s support, and he continues to insist that Obama’s order suffices.

LSN attempted to get further explanation from Stupak on Thursday, but received no reply as of press time.

No Abortion Restrictions on PCIPs Until Controversy

However, the facts show that until the press began investigating NRLC’s claims, at least New Mexico was prepared to subsidize elective abortion in administering the federal PCIP, for which it received $37 million from HHS.

An individual buying a PCIP through the New Mexico Medical Insurance Pool (NMMIP) would have to pay a $500 deductible, after which 80% of his or her expenses (with 100% of preventative services covered) would be paid for by the federal plan.

LSN obtained the benefits summary of the New Mexico Federal High Risk Pool, which lists “Routine Maternity/Elective Termination of Pregnancy” under the section “Hospital/Facility Services.” After the deductible, the pool would pay for 80% of services that include “routing delivery, pre- and post-natal care, anesthesia, assistant, diagnostic tests, and elective abortion.”

LSN placed a call with the NMMIP to clarify how the federal government would be involved in paying for the optional coverage, but was not able to reach a state representative by press time.

But an Associated Press report shows that the NMMIP had not tailored its package to meet federal guidelines as of Wednesday, validating NRLC’s concerns, because they received no guidance on the issue from HHS.

NMMIP’s deputy director Michelle Grisham initially told the AP Wednesday that they were going to leave the package as is, and then a little later in the day told the AP that they were “in the process of correcting the package so it will not have elective abortion coverage.”

Grisham told the AP their contract with HHS stated they must follow all federal regulations and guidelines, but lacked what the AP described as “a clear-cut mention of abortion coverage.”

The NMMIP started enrolling people on July 1. Benefits become effective on August 1.

NRLC first warned that the HHS guidelines for the $160 million Pennsylvania program also could provide a loophole, because they did not define the term “elective abortion.”

LSN attempted twice to get state officials with the Pennsylvania Insurance Department to clarify how they would define elective abortion.

Spokeswoman Kimberly Bathgate first stated in an e-mail, “our pending contract with Health and Human Services (HHS) makes it clear that we will ‘operate the Program in compliance with federal law and the forthcoming final federal regulations.’ This has always meant that the existing federal ban on abortion funding would be followed, with the restrictions that permit abortion services in the instance of rape, incest or endangering the mother.”

However when LSN followed up that there were concerns as to whether Hyde language actually applies “to all of the bill’s programs and provisions,” Deputy Press Secretary Melissa Fox would only refer to the Wednesday HHS statement.

“It is certainly clear that they were not imposing any abortion restrictions until now, until it became a matter of controversy,” said Douglas Johnson, NRLC’s legislative director.

“They were not applying any kind of guidance that would keep states from submitting such a plan [approving abortion coverage], and they weren’t denying approval when a state did submit such a plan.”

Johnson added that a silver lining from the controversy will be state’s having to conform to HHS national guidelines, since it is a federal program that is just administered by the states.

“But there are many other programs and authorities in the 2,000 page law [PPAC Act] that can be utilized to expand or fund abortion, and we are going to have to be vigilant on each one of those,” concluded Johnson, saying these battles could play out over months, or years, unless Congress acts to amend the law significantly.

LSN writer/editor Kathleen Gilbert contributed to this story.


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