Massachusetts Department of Public Welfare, DAB No. 366 (1982)

GAB Decision 366

December 15, 1982 Massachusetts Department of Public Welfare; Docket
No. 82-203 Ford, Cecilia; Garrett, Donald Settle, Norval


The Massachusetts Department of Public Welfare (Commonwealth)
appealed a decision by the Health Care Financing Administration (HCFA)
to disallow $408,229 in federal financial participation (FFP) claimed by
the Commonwealth under Title XIX of the Social Security Act. HCFA
determined that, for the 21 month period January 1, 1979 through
September 30, 1980, the Commonwealth received FFP reimbursement for
5,209 abortion services which were not performed in accordance with
federal guidelines. The Commonwealth admits that the underlying facts
of this disallowance are identical to those which were the basis of
Board Decision No. 260. * However, this disallowance concerns claims for
a different time period. For the reasons outlined below, we uphold the
HCFA decision.


I. Background

HCFA drew a statistical sample of the abortion services for which the
Commonwealth claimed FFP durin 30, 1980. HCFA's analysis of the sampled
services revealed that all the abortions were performed under the
circumstances of "Other Medically Necessary Abortion" as documented on
HCFA's certification forms. HCFA determined that such abortions did not
meet the conditions of the "Hyde Amendment," a condition attached by
Congress to Departmental appropriation acts to limit abortion funding.
Based upon this analysis, HCFA concluded that all 5,209 abortion
services were not reimbursable.

The Commonwealth asserted that it was enjoined from refusing to pay
for abortions for eligible recipients by order of the U.S. Court of
Appeals for the First Circuit. Further, the Commonwealth argued that
the Agency was also bound by the court order and could not deny the
Commonwealth's claim for FFP.

The Agency argued that the court's ruling neither ordered it to
participate in payments to providers of the disputed services, nor
suspended regulatory restrictions applicable to Federal funding of
abortions.

The Commonwealth previously appealed these same issues in Board
Docket 81-14. The Board upheld that disallowance in Board Decision No.
260.

(2) In that decision, the Board found that the clear language of the
Hyde Amendment restricted the Ageny's (HCFA's) authority to expend
federal funds for the abortions in question and that this restriction
was not overcome by court orders which did not direct the Agency to make
payments. (Decision No. 260, February 26, 1982. p. 2) In the case
before us, the Commonwealth requested that the Board take one of the
following actions: (1) "decline jurisdiction" pending the outcome of
the Commonwealth's appeal of Board Decision No. 260; (2) issue a
summary decision based on Board Decision No. 260; or (3) reverse this
disallowance.

II. Analysis

The Board issued an Order to Show Cause on Novermber 12, 1982,
directing both the Commonwealth and HCFA to show cause why the Board
should not uphold this disallowance based on its Decision No. 260.

In response to the Order, the Commonwealth concurred that the issues
in this appeal were identical to those in Board Decision 260, and did
not offer any new argument which would cause us to reexamine that
decision. Although the Commonwealth reaffirmed its disagreement with
the result in Decision No. 260, the Commonwealth presented no arguments
why a summary decision should be not issued in this case.

HCFA, too, stated that this appeal should be decided on the basis of
Board Decision No. 260.

III. Conclusion

Both parties have agreed that the facts underlying this appeal are
identical to those present in Decision No. 260, and neither party has
demonstrated any substantial reason why our analysis in that decision
should not control here. Therefore, we uphold the HCFA decision to
disallow the $408,229 claimed by the Commonwealth, based on our analysis
in Decision No. 260 (which we incorporate in this decision). * Board
Decision No. 260 is currently on appeal to the United States District
Court for the District of Massachusetts. Commonwealth of Massachusetts
v. Richard Schweiker, et al., Civil Action No. 82-1197-N.

OCTOBER 22, 1983