Last month, the U.S. Department of Health and Human Services notified clinics that it would begin enforcing a ban on abortion referrals “immediately.” The announcement, directed at facilities that receive Title X funds, was quickly followed by one from Planned Parenthood of Illinois, saying it will turn down Title X funds going forward. “Our doors are open,” said Julie Lynn, the organization’s external affairs manager, at a news conference, “and we’re here for our patients.”
The move was followed up the same week by a statement from Gov. Pritzker that the state would step in to fund most of those clinics itself. “President Trump’s gag rule undermines women’s health care and threatens the providers that millions of women and girls rely on, and we will not let that stand in the state of Illinois,” said the governor’s statement. The Department of Public Health will provide state funding to the 28 clinics that were slated to receive Title X funds. Maryland and Massachusetts had taken a similar step legislatively in anticipation of the ban being enforced.
Only weeks earlier, abortion had been established as a fundamental right in Illinois with the enactment of the Reproductive Health Act. The act repealed state laws – most of them never enforced – that required spousal consent and waiting periods, restricted abortion facilities and late-term abortions, and outlined procedures for criminal charges against abortion providers.
The federal ban, called the “Protect Life Rule” by supporters, had been a campaign promise by candidate Trump. He had issued, by executive order, a similar ban on foreign aid funding as one of his first acts in office. A proposed rule for Title X facilities was published in June 2018, and a final rule issued February 22. The rule requires “clear financial and physical separation” between Title X-funded clinics and facilities where abortion is performed, and it prohibits staff at these clinics from referring patients for abortion. The referral prohibition has led to it being called a gag rule.
The rule “blocks patients from accessing vital preventative care like birth control, cancer screenings, and HIV testing,” said PPIL CEO Jennifer Welch in a statement. “It forces doctors to withhold information about abortion care from their patients … even if that information could save their lives.”
The rule is reminiscent of anti-abortion laws of the 1800s, which made it illegal to even tell someone about the procedure. The Comstock Laws, first enacted in 1873, prohibited producing or publishing information pertaining to the procurement of abortion or the prevention of conception or venereal disease, even to medical students. The last of the state versions of these laws was not struck down in its entirety until 1972.
Apart from limiting free speech and intruding into a healthcare provider’s relationship with a patient, the rule creates an impossible situation in practical terms. A clinic cannot duplicate its physical location, staff, bookkeeping, and overall operations in order to keep one form of care separate from all the others it provides. In essence, this would be like telling a school that mathematics had to be taught across the street, or telling a restaurant that glasses of water could be provided curbside, but not at the table.
Planned Parenthood operates more than 600 clinics, including 17 of the 28 in Illinois affected by the rule, which together would have stood to lose an estimated $2.4 million.
Title X subsidizes family planning and preventive services for low-income families. It grew out of federal subsidies to help low-income families obtain birth control as part of President Lyndon Johnson’s War on Poverty in 1965. The current program, Title X of the Public Health Service Act (Public Law 91-572), passed the Senate unanimously and the House overwhelmingly in 1970, and was signed into law by President Richard Nixon.
These new rules for Title X-funded clinics present threats in tandem with proposed changes to regulations that enforce Section 1557 of the Affordable Care Act, which protects populations vulnerable to discrimination on the basis of race, color, national origin, age, disability, and sex. The proposed changes define sex by the biological definition rather than gender, as under the previous interpretation, despite courts having now upheld protections for transgender people for nearly two decades. Additionally, the proposed rules would loosen standards for language assistance provided to people with limited English proficiency and for hearing aids provided to people with disabilities, creating a significant challenge for people to get the care that they need. Robert H. Muriel, Director of the Illinois Department of Insurance, joined 17 other state insurance commissioners in opposing the proposed rule changes.
SB 1321 treats Medicaid problems
The bipartisan Medicaid Omnibus bill was signed into law August 5th, making improvements for payments to providers and streamlining eligibility for Medicaid members. Between 11% and 26% of Medicaid claims made by providers in Illinois have been denied, according to estimates from the Department of Healthcare and Family Services and the Illinois Hospital Association. Delayed payments have also created challenges for providers. This law creates a dispute resolution process and requires payment within 30 days.
On behalf of consumers, the law aims to ensure more automatic renewal of Medicaid eligibility, as WBEZ reported. The hope is to begin to address the churn of members on and off Medicaid, which resulted from the redetermination process and a long backlog of applications. The bill brought together compromises from payers, providers, and advocates in support of a stronger Medicaid system.
CMS on 1332 waivers
On July 15, the Centers for Medicare & Medicaid Services released new guidance for use of Medicaid 1332 waivers. The new materials build upon the agency’s previous 1332 efforts to undermine the Affordable Care Act.
CMS now presents four scenarios – termed “concepts” – for states to apply the ACA’s premium tax credit subsidy into mechanisms “to stabilize health insurance markets and address market distortions created by the PPACA in many states.” They suggest that a state could 1) replace the federal tax credit structure with a more flexible one, for example by broadening the eligibility criteria, or cap the subsidy outright rather than allowing it to match rising premium costs; 2) subsidize plans that do not include all 10 essential health benefits; 3) pass the subsidies into defined-contribution, consumer-directed health expense accounts that could be used to pay premiums or healthcare expenses; or 4) create a state-operated reinsurance program or high-risk pool.
As noted by Health Affairs, all but one of the 1332 waivers approved thus far have been state-based reinsurance programs. Despite their effectiveness in reducing individual market premiums, “CMS continues to try to woo states to use Section 1332 waivers to restructure their health insurance markets,” the article observed. Meanwhile, the House has passed a bill that, if enacted, would nullify the earlier guidance.
Texas v. Azar
Last month, the Fifth Circuit Court of Appeals heard oral arguments in the case of Texas v. Azar, the lawsuit brought by state attorneys general challenging the Affordable Care Act. The suit argued that by setting the penalty for not having health insurance at $0 (as part of the Tax Cuts and Jobs Act of 2017), Congress not only undermined the individual mandate but rendered the entire Affordable Care Act unconstitutional. The legal basis of this argument has been questioned, and healthcare watchers were surprised when Judge Reed O’Connor of the Northern District of Texas agreed, finding the individual mandate “essential” to the ACA. His ruling struck down the Affordable Care Act in its entirety; the law has continued to be in force pending appeal, as no injunction was issued. As noted by Families USA and elsewhere, striking down the law would cause “devastating problems [to] reverberate throughout the health care system and the nation’s economy.”
The tangled case has had two states (Maine and Wisconsin) withdraw as plaintiffs; 17 states (led by California) and the U.S. House of Representatives admitted into the proceeding as “intervener-defendants”; and the administration declining to defend current law. In Illinois, Attorney General Kwame Raoul, State Sen. Laura Fine, and Citizen Action IL have come out with strong statements and are following the issue closely.
Because the doctrine of severability generally holds that if some provisions of a law are found unconstitutional, the rest will remain valid, observers did not expect the appeals court to uphold the Northern District’s ruling. But tension mounted as the three-panel court showed some interest in the arguments being presented. A ruling did not quickly follow, however, and Azar remains one of the numerous factors hanging over us and contributing to an uneasy summer.
Photo from May 1, 2017, Chicago march by Christine Geovanis from Chicago
– DSC_0648, CC BY 2.0, via Wikimedia Commons
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