TALLAHASSEE — A new Florida abortion law seeks to ban Medicaid funding for family-planning services at clinics that also offer elective abortions — such as clinics run by Planned Parenthood — but the federal government appears unlikely to allow that part of the law to take effect.
Gov. Rick Scott on March 25 signed the sweeping abortion legislation (HB 1411), which was sponsored by Rep. Colleen Burton and Sen. Kelli Stargel, both Lakeland Republicans.
Among its many provisions, the legislation would prohibit state agencies, local governmental entities and Medicaid managed-care plans from using public funds to contract with organizations that own, operate or are otherwise affiliated with licensed abortion clinics. Medicaid money cannot be used for elective abortions, though it is used for family-planning services.
But Elizabeth Nash of the Guttmacher Institute, which researches abortion issues and supports abortion rights, said the federal government has not allowed other states to put into effect bans on Medicaid funding for facilities that also provide abortions.
"You cannot exclude a provider from Medicaid because you don't like the services they provide," Nash said.
Marissa Padilla, a spokeswoman for the U.S. Centers for Medicare & Medicaid Services, said her agency notified the Scott administration to that effect.
"CMS spoke with Florida officials reminding them of the state's obligation to ensure Medicaid beneficiaries continue to have access to services provided by any willing provider," she said.
Also, in a 2011 bulletin, a top federal health official, Cindy Mann, said states do not have the authority to ban certain types of Medicaid funding. Under federal law, Mann wrote, Medicaid beneficiaries may not obtain government-funded abortions except in cases of rape, incest, or a threat to the life of the woman, but they may obtain medical services from any qualified provider.
"Medicaid programs may not exclude qualified health care providers — whether an individual provider, a physician group, an outpatient clinic, or a hospital — from providing services under the program because they separately provide abortion services (not funded by federal Medicaid dollars, consistent with the federal prohibition) as part of their scope of practice," Mann wrote.
The Centers for Medicare & Medicaid Services, which is part of the U.S. Department of Health and Human Services, rejected Indiana's request for a funding ban similar to Florida's in 2011.
"We assume this decision is not unexpected," then-CMS Administrator Donald Berwick wrote to Indiana state officials on June 1, 2011. "As the Indiana Legislative Services Agency indicated in its April 19, 2011 fiscal impact statement, 'While states are permitted to waive a recipient's freedom of choice of a provider to implement managed care, restricting freedom of choice with respect to providers of family planning services is prohibited.' "
Burton said she and Stargel were aware when their bill passed that the Florida Agency for Health Care Administration would have to apply to the federal government for what is known as a Medicaid "waiver" to implement the funding-ban portion of the bill.
"We knew that," Burton said. "And we've said it in committees — I've said it on the floor of the House — that we are aware that this portion of the bill requires a waiver from the federal government."
Burton also said that without seeing the Indiana and Florida laws side by side, any relationship between the two could be an apples-and-oranges comparison.
"Every state does things differently," she said. "Certainly we are aware of historically what may or may not have happened … with applications that we were not privy to all the details on in other states. So we just are waiting for AHCA to go ahead and move on behalf of the state of Florida, and then see what happens here in Florida."
Scott spokeswoman Jackie Schutz, however, would not confirm that the administration was considering such a waiver.
"The bill doesn't take effect until July 1, and we're working with our agencies on it, and looking at our options," Schutz said.
Planned Parenthood's funding has long drawn fierce debate between Republicans and Democrats in Tallahassee and across the country. The votes on the abortion bill in Florida's GOP-dominated House and Senate largely fell along party lines, with Republican leaders making plain their backing for the measure, including the funding ban.
Rep. Lori Berman, a Lantana Democrat who opposed the funding ban and the overall bill, said she doesn't think the state can get a federal waiver to carry out the funding ban.
"They're talking about getting a special waiver that doesn't even exist and has never been granted for anyone," Berman said.
