This week the US Supreme Court declined to hear a case that would have given them an opportunity to overturn a lower court ruling that found that Medicaid agencies can’t exclude providers offering preventive reproductive health services like annual health screens, contraceptive coverage and cancer screening because they also offer abortion services. Lower federal courts had ruled that while states have broad authority to ensure that Medicaid health care providers are qualified, that power has limits.
The case isn’t about elective abortion services per se (the Hyde Amendment from 1977 makes it clear that federal funds can’t be used to pay for abortions except in cases of rape, incest, or life endangerment). The question is whether providers can be excluded from Medicaid contracts for preventive services like annual health screens, contraceptive coverage and cancer screening because they also separately offer abortion services outside of their public dollar contracts.
The Supreme Court’s decision to decline the case will have implications here in Arizona. In 2016, Governor Ducey signed a bill giving the director of the AHCCCS the power (at his or her discretion) to disqualify any provider that doesn’t fully segregate the public dollars they get and ensure that none of those funds went toward providing elective abortions- including overhead expenses like rent, lights and A/C.
While that law is still on the books (as ARS 36-2930.05), it hasn’t been implemented. After a lawsuit was filed back in ’16, attorneys for AHCCCS agreed not to implement the law and stipulated that AHCCCS won’t try to cut family planning dollars from Planned Parenthood or any other organization because it hasn’t fully segregated out the costs of abortion services to the satisfaction of the director. The implementation hold agreed to in the stipulation was until Rules (Administrative Code) could be adopted- which they estimated would take about 2 years.
In exchange, the attorneys for the providers agreed to drop their lawsuit challenging the legality of the measure until there are actual rules in place. I checked on the AHCCCS and Secretary of State’s website and can’t find any Rules fleshing out the criteria- but I might have missed them.
In any event- the fact that the US Supreme Court this week declined to hear a case similar to Arizona’s suggests that- at least for now- the status quo remains… and Arizona’s Managed Care Organizations that contract with AHCCCS are free to contract with Planned Parenthood or other providers even though they may not be segregating expenses as required in ARS 36-2930.05.Of course- that could change at any time if the Supreme Court changes their mind and agrees to hear a similar case in the future.
