DAR File No. 39341

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.: 39341
Filed: 05/01/2015 04:33:29 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this change is to update and clarify payment criteria for abortion services.

Summary of the rule or change:

This amendment updates and clarifies payment criteria for abortion services in accordance with state and federal law. It also updates coding for abortion services, removes redundant language from the rule, and makes other technical changes.

State statutory or constitutional authorization for this rule:

• Section 26-1-5
• Section 76-7-331
• 42 CFR 441 Subpart E
• Section 26-18-3

Anticipated cost or savings to:

the state budget:

There is no impact to the state budget because this change only clarifies payment criteria for abortion services.

local governments:

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

small businesses:

There is no impact to small businesses because this change only clarifies payment criteria for abortion services.

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

There is no impact to Medicaid providers and to Medicaid recipients because this change only clarifies payment criteria for abortion services.

Compliance costs for affected persons:

There are no compliance costs to a single Medicaid provider or to a Medicaid recipient because this change only clarifies payment criteria for abortion services.

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

There is no impact to business because the rule makes no substantive change as to the criteria for payment for such services.

David Patton, PhD, 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
CANNON HEALTH BLDG
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:

06/15/2015

This rule may become effective on:

07/01/2015

Authorized by:

David Patton, Executive Director

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

R414-1B. [Prohibition of ]Payment for [Certain]Limited 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 the Hyde Amendment Codification Act, 42 CFR 441, Subpart E, and Section 76-7-331. [It]This rule is authorized by Section[s] 26-1-5 and Section 26-18-3.

 

R414-1B-2. Definitions.

(1) "Abortion billing code" means [the]those [following ]codes used to bill for services that are directly or indirectly related to an abortion and are found in the current editions of the:

(a) [59840, 59841, 59850, 59851, 59852, 59855, 59856 and 59857 as shown in the ]Current Procedural Terminology (CPT) manual of the American Medical Association[, 2003 edition]; and

(b) [69.01, 69.51, 74.91 and 75.0 as shown in the ]International Classification of Diseases (ICD):[, 9th Edition, Volumes 1 and 2,] Clinical Modification, [Volume 3 Procedures]or Procedural Coding System (PCS).

(2) "Certification" or "Certify" means submitting to the Division of [Health]Medicaid and Health [Care ]Financing, Utah Department of Health, a Department-approved document signed by one authorized to act on behalf of a Medicaid provider.

(3) "Public funds" means money of the state, its institutions or its political subdivisions used to pay or otherwise reimburse a person, agency, or facility and money received under Title XIX of the federal Social Security Act. "Public funds" does not include (i) clinical revenue generated from nongovernmental payors; or (ii) gift or donor funds from third party nongovernmental sources.

(4) "Services" means all covered services reimbursable under the Medicaid State Plan and that are limited by federal guidelines set forth by the federal Social Security Act, Title 42 of the Code of Federal Regulations, Section R414-1-5, and Utah Medicaid Provider Manuals.

 

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 and all requirements of 42 CFR 441, Subpart E have been satisfied; or

(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 woman 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 Section 76-7-331 and to assess whether it receives public funds for any abortion that is not excepted in Subsection 76-7-331(2)(a) or (b)[, or (c)].

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

(a) it uses non-public funds to make up any difference between the reimbursement [it]the provider 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]the provider has adopted another method, based on generally accepted accounting principles, [that]which 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.

]R414-1B-5. Prohibition of Payment for Certain Abortions with Medicaid Funds.

(1) A Medicaid provider may not use Medicaid funds for the abortion billing codes referenced in Section R414-1B-2 unless:

(a) in the professional judgment of the pregnant woman's attending physician, the abortion is necessary to save the pregnant woman's life and all requirements of 42 CFR 441, Subpart E have been satisfied;

(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.

(2) A Medicaid provider may not construe the certification requirements of Section R414-1B-3 to mean that Medicaid may reimburse for an abortion billing code beyond the exceptions listed in Subsection R414-1B-5(1)(a) and (b).

 

KEY: Medicaid, abortion, physicians, hospitals

Date of Enactment or Last Substantive Amendment: [November 25, 2009]2015

Notice of Continuation: March 18, 2014

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