Date: 1995-03-31
Speaker: BRUCE C. VLADECK (democrat)
Chamber: S

Administrator. Health Care Financing Admninistration. Washington. DC.. DEAR BRUCE: I appreciate your taking the time to explain Sally Richardsons December 28. 1993 letter during our recent phone conversations. Your assurances that HCFA intends to follow the compliance process with regard to the new abortion mandate in an orderly. nonconfrontational manner is welcome. Nonetheless. I hope that after considering the points in this letter you will agree the prudent course of action would be for HCFA to rescind Sally Richardsons order. and reissue it as an optional policy change after appropriate consultation with the State Medicaid Directors in the- form of a true Executive Order. I share Ray Hanleys concerns about how this policy was announced. HCFAs method of issuing their interpretation of the 1993 Hyde Amendment ignored long standing principles of cooperation and consultation between HCFA and the states and threatens to seriously undermine this cooperative relationship. Not only did HCFA assume the responsibility to issue a questionable mandatory interpretation of previously .permissive language. HCFA also took upon itself to issue reportingand documentation requirements that have no basis in federal law. Further. HCFA completely ignored the box that this preemptive mandate immediately created for Utah and many other states. While HCFA has agreed to give the states time to resolve the dispute. your mandate has left the states vulnerable to legal action from other parties. Why HCFA would knowingly place states in this unconscionable catch22. completely escapes me and leaders in other states. Based on research to this point and careful consultation with local and national legal advisors. I continue to believe that HCFAs interpretation of congressional intent may be unsound. The Supreme Court has not decided this issue. having explicitly reserved judgment in William v. Zbaraz. 448 US. 358. 363 n.5 (1980). The Court has indicated that the intent to mandate abortion coverage should not be presumed. absent clear proof of that intent. Beal v. Doe. 432 U.S. 438. 44647 (1977). Contrary to popular belief. passage of a new federal law does not in and of itself trigger federal supremacy. There has to be clear evidence that Congress intended to override the laws of the 50 states. Sally Richardsons letter indicates that HCFAs interpretation regarding medical necessity is "(based on the language of this years Hyde Amendment and on the history of Congressional debate about the circumstances of victims of rape and incest." Your assistance in providing specific information to support this assertion is respectfully requested as Utah cannot locate any evidence to support Sally Richardsons claim. In fact. I have reviewed the language of the Hyde Amendment for each year from 1976 through 1993. I see nothing distinctive about the 1993 language that addresses congressional intent to change a permissive policy to a mandatory one. The State Medicaid Manual indicates that the States -may choose not to fund abortions to the extent they deem appropriate." State Medicaid Manual. Part 4. Section 4430. This has been federal policy from 1981 through 1992. I fail to see anything in the language of the 1993 version that dictates a change in that policy. Further. I have reviewed the legislative history surrounding the adoption of the 1993 version of Hyde and find nothing conclusive there either. Comments from congressional leaders and their staff in the last 2 weeks would also suggest that no clear proof of intent exists. I am therefore persuaded that a permissive interpretation remains consistent with congressional intent. I also fail to see how that interpretation frustrates national policy in the Medicaid program. Your January 5. 1994 letter to Ray Hanley argues that the absence of Bauman Amendment language since 1983 forces a mandatory interpretation. If this is so. why has the permissive language in the State Medicaid Manual remained unchanged? Further. your interpretation that the Hyde language preempts state law absent an express exception. is in direct conflict with the standard set forth by the Supreme Court in Beal. Have you any case law to support this position? The legislative history surrounding the adoption of the Bauman Amendment in 1981 makes it very clear that it was intended to clarify congressional intent that abortion coverage was permissive. Our research to date. has not uncovered any explicit indication of why it is absent after 1983. Your conclusion that its absence automatically compels an interpretation that coverage is mandatory is highly suspect. It can be plausibly argued. and case law supports the interpretation in appropriate cases. that the failure to repeat such language does not appear after 1983. we would appreciate your assistance in resolving this important question.