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Thursday, December 15, 2005

Ind. Decisions - Court of Appeals hears oral arguments in Planned Parenthood of Indiana v. Steve Carter, et al

A Court of Appeals panel yesterday heard oral arguments in Planned Parenthood of Indiana v. Steve Carter, et al. You can listen to them here via the Courts' Oral Aruments Online service. The description on the Court site:

Planned Parenthood of Indiana, on its own behalf and on behalf of its patients, appeals the denial of its motion for preliminary injunction against Steve Carter, in his official capacity as Attorney General of the State of Indiana, and Allen K. Pope, in his official capacity as Director, Indiana Medicaid Fraud Control Unit.
The AP has coverage of the arguments today, in a story by Ken Kusmer, available here via the Louisville Courier Journal. Some quotes:
The state argued in court yesterday that Planned Parenthood of Indiana should be required to turn over Medicaid records sought by the attorney general's office.

In a hearing before the Indiana Court of Appeals, the state maintained that the office is entitled to see medical records of Medicaid recipients under age 14. * * * At stake is whether a federal statute on Medicaid fraud can compel health-care providers to turn over records that could identify girls and boys under age 14 who are sexually active. Indiana law regards sex with a child under 14 as child abuse, no matter the age of the other person.

State law also compels anyone with knowledge of child abuse to report it to child welfare officials or police.

Planned Parenthood's attorney, Ken Falk of the Indiana Civil Liberties Union, said his client complies with the reporting law. But even if it didn't, it would be guilty only of failure to report, not neglect. "Failure to report is not neglect because you're not the injurer of the child," Falk said, and is not covered by the federal Medicaid fraud law.

Indiana Solicitor General Thomas M. Fisher said the point was whether Planned Parenthood can invoke the constitutional right against unlawful search and seizure on behalf of its clients.

"Aren't they on the horns of a dilemma here?" asked Judge Edward W. Najam Jr., referring to Planned Parenthood. The agency faced a choice of either violating its patients' rights or losing Medicaid funding for not complying with disclosure rules, he reasoned.

Indianapolis Star has this report today. Some quotes:
The Indiana Court of Appeals on Wednesday considered whether the state may seize patient records from Planned Parenthood of Indiana clinics, with the judges pressing the state lawyer about what might be gained by the seizures. They also asked Planned Parenthood's attorney for the basis of claims that the seizures would violate the law. * * *

The group's bid to stop the seizures -- the Medicaid unit has sought more than 80 records -- was rejected by Marion Superior Court Judge Kenneth H. Johnson. He found that the seizures were permissible, ruling that society has an overriding interest in protecting children. The plaintiffs were then granted a stay by the Court of Appeals pending that panel's review of Johnson's ruling.

During Wednesday's oral arguments, Falk said Planned Parenthood reports possible abuse orally, a report that may or may not be noted in clinic records. Judge Michael Barnes wondered aloud how useful the records might be in uncovering abuse, given that a note of a report could be tough to verify. By taking the records, Barnes asked Fisher, "how are you ahead?"

Replied the attorney: "We would have investigated an (abuse) complaint." Fisher said that as a Medicaid provider, Planned Parenthood signed a sweeping agreement to cooperate with state investigations. This prompted a question from Judge Edward W. Najam Jr.: "Is it your contention that if you sign this agreement, then it's Katie bar the door -- a blank check?"

Falk said that as far as he can tell, the Indiana fraud unit's efforts to seize records to determine whether a group is reporting abuse is "unique in America." He said he has reviewed 140 cases nationally involving Medicaid units and could not find a similar case. "The Medicaid Fraud Control Unit has certainly gone too far," he said.

For background, see these ILB entries: 3/24/05 ("Local dispute over patient records makes national news"); 3/24/05 (Local dispute makes NPR); 4/19/05 ("Battle over medical files goes to court"); 4/23/05 ("Girls have right to expect privacy").

Posted by Marcia Oddi on December 15, 2005 08:18 AM
Posted to Ind. App.Ct. Decisions