Federal Appeals Court Rejects Kansas’ Attempt To End Medicaid Funding For Planned Parenthood

Feb 21, 2018
Originally published on February 22, 2018 3:22 am

This story was updated at 4:12 p.m. to include the comments of Planned Parenthood Great Plains' president and CEO.

Kansas improperly sought to end Medicaid funding for Planned Parenthood, a federal appeals court ruled Wednesday, rejecting the state's claims that the organization illegally trafficked in fetal parts and committed other wrongdoing.

Upholding a lower court's injunction barring the state from terminating its Medicaid contract with Planned Parenthood, the 10th U.S. Circuit Court of Appeals said that states may not cut off healthcare providers from Medicaid “for any reason they see fit, especially when that reason is unrelated to the provider’s competence and the quality of the healthcare it provides.”

The court cited the Medicaid law’s free-choice-of-provider provision, which gives Medicaid patients the right to seek family planning services from the “qualified” providers of their choice.

In a statement, Planned Parenthood Great Plains President and CEO Brandon Hill hailed the decision as "a huge win for Kansas Medicaid patients."

"The court is now the fifth of six circuits to uphold patients’ right to receive health care from their preferred qualified provider," he said. "Kansas' termination of PPGP’s Medicaid contract was baseless and politically motivated. The 10th Circuit’s decision sends a strong message that state officials should not play politics with Medicaid — or the health care and well-being of Kansans."

Kansas officials were not immediately available for comment. 

The case dates to May 2016, when Kansas informed two Planned Parenthood affiliates —  Overland Park-based Planned Parenthood Great Plains (then called Planned Parenthood of Kansas and Mid-Missouri) and Planned Parenthood of the St. Louis region, which served a small number of patients in Kansas — that it planned to cut off their Medicaid funding.

The state cited three grounds for its decision: video evidence purporting to show that other Planned Parenthood affiliates entered into illegal agreements to procure fetal tissue after abortions; an alleged failure to comply with solid waste disposal inspections; and concerns over Medicaid claims submitted by other Planned Parenthood affiliates in neighboring states.

In his State of the State speech earlier that year, then-Kansas Gov. Sam Brownback had pledged to defund Planned Parenthood. Brownback accused Planned Parenthood of trafficking in “baby body parts,” even though several days earlier the Kansas Board of Healing Arts had found no merit to the charge.

Both Planned Parenthood affiliates sued the next day, contending the threatened cutoff by the Kansas Department of Health and Environment was unlawful and based on spurious grounds. At the time, Planned Parenthood Great Plains served several hundred Medicaid patients — adults with monthly income of no more than $768 who were pregnant, disabled or parents.

In July 2016, U.S. District Judge Julie Robinson blocked the department from cutting off the affiliates’ Medicaid funding, ruling that the move likely violated federal law. The department then appealed, setting the stage for the 10th Circuit’s ruling.

“All agree that states have considerable discretion in establishing provider qualifications,” 10th Circuit Judge Gregory Phillips wrote, referring to the Medicaid law. ... “But that authority entitles Kansas to set qualifications only for professional competency and patient care.”

The panel was unconvinced by the three grounds advanced by Kansas for ending Planned Parenthood’s Medicaid funding. It said Planned Parenthood’s refusal to allow waste inspectors to take photographs of its operations while patients were there was reasonably related to patient safety and privacy. And in any case, it said, Planned Parenthood granted the inspectors complete access and invited them to complete a visual inspection of the clinic in question.

As for the state’s claim that Planned Parenthood affiliates violated state and federal law barring the sale of fetal tissue for profit, the court noted that no Planned Parenthood affiliate had been convicted or punished for any wrongdoing. Beyond that, Phillips wrote, Planned Parenthood Federation of America (PPFA), the ostensible subject of the edited videos purporting to show it trafficked in fetal parts, does not exercise control over its affiliates.

“In fact,” the court wrote, “because many PPFA affiliates don’t offer abortions — and Kansas provides nothing to show that PPFA could or would require them to do so — we cannot attribute PPFA’s alleged abortion-related conduct to PPFA affiliates absent evidence that specifically implicates the affiliates.”

Finally, the court rejected Kansas’ claim that allegations of Medicaid fraud by other Planned Parenthood affiliates around the country were somehow evidence of fraud by Planned Parenthood Great Plains and Planned Parenthood of the St. Louis Region.

The case now goes back to Robinson’s court for a trial on the merits – unless Kansas decides not to pursue the matter. 

Kansas’ decision to end Medicaid funding for the affiliates came just weeks after the then-director of the federal Centers for Medicare and Medicaid Services (CMS), Vikki Wachino, warned in a letter sent to all 50 state Medicaid agencies that they could not cut off funding to medical providers simply because they also offer abortion services.

Dan Margolies is a senior reporter and editor for KCUR. You can reach him on Twitter @DanMargolies.

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