You probably saw the latest headlines about Planned Parenthood. On Monday, Texas health officials—applauded by Governor Greg Abbott—announced that they’re seeking to exclude Planned Parenthood from the state’s Medicaid program.
The state sent notice of termination letters to the major Planned Parenthood affiliates in the state, writing that the group will soon be barred from providing women’s health services under Medicaid. The move follows the release of undercover videos made by an anti-abortion group, which accuses Planned Parenthood of selling aborted fetuses. (If that last sentence didn’t make much sense to you, I strongly suggest reading Dan Solomon’s post from yesterday that explains how exactly we got to this point.)
The news led groups on both sides of the abortion debate to launch a volley of press releases—and probably more than a few fundraising emails.
But despite all the bluster, there’s good reason to believe that Texas will have a tough time actually booting Planned Parenthood out of Medicaid. In fact, the deeper you delve into this issue, the more the whole thing looks like political grandstanding.
Consider the following facts:
1. This isn’t about abortion.
OK, it’s kind of about abortion. The political context is all about the decades-long struggle over abortion rights and more recently about the secret videos of Planned Parenthood staffers and clinics.
But the issue of whether Texas can cut Planned Parenthood out of Medicaid isn’t really about abortion, because Medicaid money doesn’t pay for elective abortions—no taxpayer money does. Planned Parenthood keeps its abortion facilities separate, physically and financially, from family-planning services and cancer screenings paid for by Medicaid; patients seeking abortions go to clinics that are separate from where Medicaid recipients receive care.
So Texas must center its argument not on abortion or the recent videos, but on whether Planned Parenthood clinics are competent providers of services to people on Medicaid. That’s mostly because….
2. Texas can’t arbitrarily kick Planned Parenthood out of Medicaid.
Texas’s elected leaders may not like Planned Parenthood, but they can’t cut the group off for no reason. Federal law states that any willing and competent provider should be eligible to serve Medicaid patients. The government can’t pick and choose based on political favoritism.
Louisiana is trying to expel Planned Parenthood from Medicaid based largely on the recent anti-abortion videos, and the feds are having none of it. In a court filing, federal officials wrote that Louisiana was attacking Planned Parenthood for “reasons unrelated to the ability of that provider to perform Medicaid covered services or to properly bill for those services.” And that Louisiana’s effort wasn’t just at odds with the law, but is “not even a plausible reading of the statute.”
Doesn’t sound promising for Bobby Jindal.
The lesson is that Texas will need some good reasons. It must show that Planned Parenthood—after many years of adequate care—doesn’t competently provide women’s health services. And Texas officials probably won’t make the final call because…
3. The feds have leverage.
Texas administers its Medicaid program, but the federal government, which puts up about 60 percent of the money overall, has final say.
The notices of termination that the state sent on Monday laid out a process for removing the Planned Parenthood from Medicaid. But federal health officials will eventually get involved.
At that point, Texas will have to prove that Planned Parenthood has engaged in wrongdoing so serious that it can no longer remain in the program.
And the feds hold the ultimate sledgehammer: If they determine that Texas is violating Medicaid law, they could withdraw all federal matching funds for Medicaid from the state. How much is that? Try more than $17 billion per year.
That’s obviously the nuclear option, but it does mean if officials with the federal Centers for Medicare and Medicaid Services determine that Texas can’t legally kick out Planned Parenthood, then Texas must fall in line—or lose all its federal Medicaid money.
In fact, a somewhat similar scenario played out a few years ago, when Texas banned Planned Parenthood from one small piece of Medicaid—called the Women’s Health Program. The feds objected, arguing that Texas couldn’t arbitrarily kick a provider out of the program. Texas did it anyway, and the feds made good on their threat by ending federal matching funds for that sliver of Medicaid. In that instance, it wasn’t that much money—relatively speaking—about $40 million. Texas made up the money with state dollars, and went on its merry way without Planned Parenthood in the Women’s Health Program.
But Texas can’t go it alone this time. There’s too much money at stake. We don’t have $17 billion lying around—not without tax increases. Nor can Texas feasibly just forego the money. If you’re wondering why, state lawmakers actually studied the possibility back in 2010 and the results were ugly. If it withdrew from Medicaid, Texas would lose billions in economic stimulus, with devastating effects on doctors and hospitals. Not to mention the loss of health coverage for millions. Medicaid pays for about two-thirds of nursing home residents in Texas and more than half of the births.
Losing federal Medicaid dollars would be a political and economic disaster. That ain’t happening. (And if it does, we’ve got much bigger problems to deal with.) So the state really doesn’t have much leverage here.
If this effort is going to be anything more than political posturing, Texas must present some legitimate evidence of wrongdoing against the Planned Parenthood affiliates in Texas. But then there’s the issue that…
4. Based on what we know, the state’s case seems a little thin.
This one comes with a major caveat: We don’t know exactly what evidence the state possesses. The letters reference “reliable information indicating a pattern of illegal billing practices by Planned Parenthood affiliates across the State.” And that may well be. If state officials have uncovered evidence of widespread Medicaid fraud at Planned Parenthood clinics, then Texas may well succeed in cutting the organizations out of the program—and deservedly so.
But the specifics offered by the state so far don’t exactly blow you away. In their letters to Planned Parenthood, Texas officials contend that the organization is “no longer capable of performing medical services in a professionally competent, safe, legal, and ethical manner.”
The allegations center on Planned Parenthood Gulf Coast (PPGC), based in Houston, just one of the major Planned Parenthood affiliates in the state. (There are no specific allegations in the letters against other groups, such as Planned Parenthood of Greater Texas, which serves D-FW, Austin and Waco, or Planned Parenthood South Texas. They’re apparently guilty by association.)
The state contends that PPGC has engaged in Medicaid fraud. These allegations largely stem from a 2009 whistleblower suit by a former clinic worker who accused PPGC of fraudulent billing. PPGC settled the case in 2013, though admitted no wrongdoing. The Texas Attorney General’s office—headed at the time by one Greg Abbott—announced that the case was closed.
So the state’s argument—at least as laid out in the letters of termination—is based on six-year-old allegations against one Planned Parenthood affiliate—a case the Texas AG’s office closed more than two years ago. That seems kind of thin.
Is that enough to convince federal health officials or a federal court that a major provider of health services to thousands of Texas women should be booted from Medicaid? State officials seemingly will have a tough time winning that argument— unless they’ve obtained some new, damning evidence of widespread fraud by Planned Parenthood. In other words, the fate of Planned Parenthood in Medicaid will be decided on the merits, not the politics.
Meanwhile, everyone can continue to grandstand, and fire off fundraising appeals.