June 17, 2011 — The Department of Justice on Thursday filed a brief in support of Planned Parenthood of Indiana's request for an injunction to block a provision in an Indiana law that halts state grants and contracts to organizations that provide abortion services with their own money, the AP/Miami Herald reports. In the brief, federal attorneys requested that U.S. District Judge Tanya Walton Pratt, who is overseeing the lawsuit, halt the law because it prevents Medicaid beneficiaries from choosing their health care providers. "The public interest strongly supports preserving the freedom of choice that Congress conferred," the brief said (Kusmer, AP/Miami Herald, 6/16).
Pratt previously rejected a request by PPIN and the American Civil Liberties Union of Indiana -- which is representing PPIN in the case -- to issue an immediate injunction to block enforcement of the measure. The funding ban, which took effect May 10, effectively prohibits Medicaid reimbursements for services provided in clinics affiliated with PPIN. For years, federal law has prohibited the use of federal Medicaid funds to pay for abortion services. Prior to enactment of the law, PPIN could receive reimbursement from Medicaid for the non-abortion-related services it provides.
Earlier this month, CMS Administrator Don Berwick sent a letter to Patricia Cassanova, director of Indiana's Office of Medicaid Policy and Planning, warning that "Medicaid programs may not exclude qualified health care providers from providing services that are funded under the program because of a provider's scope of practice." He continued, "Such a restriction would have a particular effect on beneficiaries' ability to access family planning providers." The Indiana law "would eliminate the ability of Medicaid beneficiaries to receive services from specific providers for reasons not related to their qualifications to provide such services," the letter said. Berwick added, "We assume this decision is not unexpected" (Women's Health Policy Report, 6/15).
According to the AP/Miami Herald, the brief reaffirmed the position the federal government took in Berwick's letter. The brief argued that the letter was authoritative because CMS was applying its "longstanding interpretation of the complex and technical Medicaid statute" in rejecting Indiana's proposal to cut off Medicaid funds for certain providers. "HHS has long taken the position that a state's criteria for qualification must be related to the provider's ability to render services and properly bill for those services," the brief explained.
Ken Falk, an ACLU-Indiana attorney representing PPIN, said the brief surprised him, adding, "I had no idea this was coming." According to the AP/Miami Herald, it is unclear how the Justice Department's filing will affect the timing of Pratt's ruling (AP/Miami Herald, 6/16). Pratt originally said she would rule before July 1, but indicated this week that she hopes to rule by Monday (Women's Health Policy Report, 6/15).