Medina v Planned Parenthood Could Have Implications With Medicaid Funding: Jennifer Evans, JD

Jennifer Evans, JD, health care lawyer and stakeholder at Polsinelli Law Firm, discussed the implications of the Medina v Planned Parenthood, including how this decision could affect health care providers should Medicaid funds be allowed to be withheld from certain clinics or individual providers.

This transcript was lightly edited for clarity; captions are auto-generated.

Transcript

What are the domino effects of the Medina v Planned Parenthood ruling?

It's the right question to be asking. I think there are expectations, or maybe worries, even by health care provider organizations across the country who see this in 2 parts [or] 3 even. The first part would be, "Hey, if you're named Planned Parenthood entity, you've got a bit of a target on your back in terms of Medicaid agencies or state governors really having the ability to kick you out of the Medicaid program." So that's no. 1.

No. 2, kind of the less granular concern, is that any entity...the way the South Carolina executive order was phrased—and it wasn't legislative, it was an executive order—basically said that physicians who are affiliated and clinics who furnished abortion services would be terminated, and that was the language they used in the executive order from South Carolina Medicaid. That has implications beyond South Carolina Medicaid under the federal framework for Medicaid enrollment of providers, whereas if you're terminated, it's a term of art. Whether or not South Carolina meant to use it as a term of art, or whether or not the Supreme Court meant to amplify that term of art, is maybe something that will be litigated going forward. But just take it on its face: if you get terminated in 1 Medicaid program, the expectation is that other Medicaid programs will terminate you as well, just based on the first state's evaluation. That has pretty serious implications if an individual provider, for example, is enrolled in more than 1 Medicaid program, or if a legal entity is enrolled. That's kind of the big-picture concern that we have.

When I looked at the opinion, I was distressed that the terms of art were being thrown about a bit casually, whether it be termination or even exclusion. And exclusion goes even further in terms of the impacts that other jurisdictions, including Medicare program, are expected to take with regard to an entity who's excluded. That's a concern.

Then, the remaining large-scale concern is, what is the remedy for that for providers? Justice [Neil] Gorsuch suggested that if a provider is terminated from a Medicaid program, they can follow the state appeals process to seek reinstatement. But, I mean, look, if the state rule is you can't be enrolled if you furnish a type of clinical care that the state disfavors, and then you appeal to that same state and saying, "Hey, I don't think I was thrown out in a fair way," you're going to be stuck in a loop. And I think the justices suggested we'll bring that up to the Supreme Court. I don't know why they would reach a different decision under the circumstances.

Of course, I can't predict any of those things, but the decisions said states have historically been given the authority to regulate health care providers from a health and safety perspective, and that's true. Historically, we have viewed that to really reflect whether or not your license is current, whether or not you have continuing training education credits, [and] whether or not your facility meets the safety requirements in order to be licensed. It has not been more of a political judgment. It's been sort of along the lines of, if you have the training and the safety protocols and [are] able to furnish a medically necessary service.

This is opening up a different level of analysis and validating a different level of analysis that, even though a service may be medically necessary, even though a service may be desired by the individual who's choosing what care they need to have, and the provider may have the skills to furnish that service, the state is saying, "We don't like that service. We disfavor that service. Consequently, you're not allowed to do it here under the Medicaid program." Why would they make a different choice? It's hard to imagine. That felt like a remediless ruling from a practical perspective.