Health, Health Care Financing, Coverage and Reimbursement Policy

Rule R414-1B

Prohibition of Payment for Certain Abortion Services

Notice of Proposed Rule

(Amendment)

DAR File No.: 33008
Filed: 09/30/2009 05:24:55 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this change is to clarify one of the exceptions in the rule that allows a Medicaid provider to use public funds to pay for an abortion. The other purpose is to specify the penalty for authorizing the use of public funds when one of the three funding exceptions to perform an abortion is not met.

Summary of the rule or change:

This change clarifies the "damage to a major bodily function" exception in the rule that allows a Medicaid provider to use public funds to pay for an abortion. It further specifies the penalty for state employees who authorize the use of public funds to pay for an abortion that does not meet one of the three funding exceptions. It also includes other minor revisions.

State statutory or constitutional authorization for this rule:

• Section 26-18-3
• Section 26-1-5
• Section 76-7-331

Anticipated cost or savings to:

the state budget:

There is no expected impact to the state budget due to this clarification. Existing policy on the use of public funds to pay for an abortion has always required use of this definition.

local governments:

There is no budget impact to local governments because they do not fund or provide abortion services to Medicaid clients.

small businesses:

There is no expected impact to small businesses. Existing policy on the use of public funds to pay for an abortion has always required use of this definition. No provider is predicted to lose any funding.

persons other than small businesses, businesses, or local governmental entities:

There is no expected impact to other businesses. Existing policy on the use of public funds to pay for an abortion has always required use of this definition. No provider is predicted to lose any funding.

Compliance costs for affected persons:

There are no compliance costs to a single person or entity predicted due to this clarification of existing policy. Compliance should be enabled due to this clarification.

Comments by the department head on the fiscal impact the rule may have on businesses:

This proposed rule clarifies a definition that should avoid confusion and not lead to denial of any service that was previously reimbursed.

David N. Sundwall, MD, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Health Care Financing, Coverage and Reimbursement Policy
288 N 1460 W
SALT LAKE CITY, UT 84116-3231

Direct questions regarding this rule to:

• Craig Devashrayee at the above address, by phone at 801-538-6641, by FAX at 801-538-6099, or by Internet E-mail at cdevashrayee@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/16/2009

This rule may become effective on:

11/23/2009

Authorized by:

David Sundwall, Executive Director

R414. Health, Health Care Financing, Coverage and Reimbursement.

R414-1B. Prohibition of Payment for Certain Abortion Services.

R414-1B-1. Introduction and Authority.

This rule is to assure compliance with the prohibition on using public funds for certain abortion services as provided in [Utah Code ]Section 76-7-331. It is authorized by [Utah Code ]Sections 26-1-5 and 26-18-3.

 

R414-1B-3. Certification.

(1) Each Medicaid provider that bills the Utah Department of Health for services related to an abortion billing code at any time after May 3, 2004 , must certify that public funds it receives from the Department are not used to pay or otherwise reimburse, either directly or indirectly, any person, agency, or facility for the performance of any induced abortion services unless:

(a) in the professional judgment of the pregnant woman's attending physician, the abortion is necessary to save the pregnant woman's life;

(b) the pregnancy is the result of rape or incest reported to law enforcement agencies, unless the woman was unable to report the crime for physical reasons or fear of retaliation; or

(c) in the professional judgment of the pregnant woman's attending physician, the abortion is necessary to prevent permanent, irreparable and grave damage to a major bodily function of the pregnant wom[e]an provided that a caesarian procedure or other medical procedure that could also save the life of the child is not a viable option. Damage to a major bodily function refers only to injury or impairment of a physical nature and may not be interpreted to mean mental, psychological, or emotional harm, illness, or distress.

(2) The certification shall be ongoing and apply to all future claims unless the provider notifies the Department in writing of a change in its certification status.

(3) Nothing in this rule shall increase Medicaid coverage for abortion services beyond what is required under federal law.

 

R414-1B-4. Standards for Certification.

(1) Each provider who submits a certification is responsible to be informed of the abortion funding restrictions found in [Utah Code s]Section 76-7-[326]331 and to assess whether it receives public funds for any abortion that is not excepted in [subsections (a), (b), or (c) of Utah Code s]Subsection 76-7-[326]331(2) (a)(b), or (c).

(2) A provider is not using public funds to directly or indirectly fund prohibited abortion services if it certifies that:

(a) it uses non-public funds to make up any difference between the reimbursement it receives from all payors for services identified by abortion billing codes, other than those services identified in Subsection R414-1B-3(1), and the costs incurred by the provider for those procedures; or

(b) it has adopted another method, based on generally accepted accounting principles, that provides a good faith basis for supporting the certification.

(3) Each provider that submits a certification meeting the requirements of this rule shall maintain records to support the certification and make those records available to the Department on request consistent with participation as a Medicaid provider.

 

R414-1B-5. State Officer or Employee Authorization of Funds for Abortion.

Any officer or employee of the state who knowingly authorizes the use of funds shall be dismissed from that person's office or position and the person's employment shall be immediately terminated.

 

KEY: Medicaid, abortion, physicians, hospitals

Date of Enactment or Last Substantive Amendment: [October 6, 2004]2009

Authorizing, and Implemented or Interpreted Law: 26-1-5; 26-18-3;76-7-331