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Alaska Medicaid-funded abortion regulation proposal unconstitutional?

Suzanna Caldwell
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Proposed regulations for abortion payments for Medicaid patients might be unconstitutional, according to an opinion by the Alaska Legislative Affairs Agency.

The opinion, issued by Legislative Counsel Jean Mischel on Thursday, says portions of the proposed regulations appear to be inconsistent with provisions that “establish the duties of the department, the express purpose of the medical-assistance program and the concept of 'medically necessary.'”

In addition, the proposed regulations may violate the equal protection and privacy clauses of the state constitution.

Last month the Alaska Department of Health and Social Services said the department planned to revise its procedures on how doctors who provide abortions to Medicaid patients submit forms to be reimbursed by either the state or the federal government.

Department spokeswoman Cathy Stadem refused to comment on the findings Friday, saying it would not address the issue until after the public comment period ends July 30.

The state has said the new regulations would improve provider submission of the required form to avoid payment errors.

The change in submitting payment worried abortion providers, including Planned Parenthood, who said the change would alter what constitutes a medically necessary abortion and change what has long been the terms by which Medicaid pays for abortions.

Medicaid is a joint state-federal-funded program that provides health insurance for low income and disabled adults. If the federal government is asked to pick up the cost of an abortion, the provider must certify that the abortion was performed because of rape, incest, or because the life of the mother is at risk.

While the feds can impose those standards, a 2001 Alaska Supreme Court decision said the state cannot selectively deny necessary care to eligible women merely because the threat to their health arises from pregnancy. The coverage must be neutral, it says, meaning the state can't agree to pay for one medically necessary procedure -- like knee surgery -- and deny another medically necessary procedure because of pregnancy.

The proposed regulation adds the phrase “because the health of the mother is endangered by the pregnancy.”

In a separate letter to DHSS commissioner William Streur, state Sen. Hollis French, D-Anchorage, chair of the administrative regulation review committee, said “endangered” restricts the phrase “medically necessary” when a woman is wishing to terminate a pregnancy, not when she wishes to continue it, putting it in conflict with the 2001 supreme court ruling.

The regulation would also change the paperwork.  Under current regulations, providers make a note on a patient's chart indicating that certain conditions had been met for funding. Under proposed regulations, providers would have to fill out a separate form.

Planned Parenthood spokeswoman Clover Simon said the findings validate what her organization has said all along.

“The findings are very consistent with what we believe to be true, and we're happy to see that they are agreeing with our legal analysis,” she said. “This speaks to the fact that in Alaska women are protected, whether they have the means to pay for an abortion or not.”

Contact Suzanna Caldwell at suzanna(at)alaskadispatch.com