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Friday, June 17, 2011

Ind. Courts - More on: Chevron and federal administrative agency v. state agency

Updating this ILB entry from June 15th, Ken Kusmer of the AP reports on a brief filed last evening by the US DOJ weighing in on the dispute. From the story:

Justice Department attorneys said U.S. District Judge Tanya Walton Pratt should grant Planned Parenthood’s request for an injunction because the law blocks Medicaid recipients’ freedom to choose the provider of their choice. * * *

“The public interest strongly supports preserving the freedom of choice that Congress conferred,” the brief said.

It was unclear how the last-minute filing would affect the timing of Pratt’s ruling. She has said she intended to rule by July 1.

Planned Parenthood attorney Ken Falk said the brief caught him by surprise.

“I had no idea this was coming,” Falk told the Associated Press Thursday evening.

The brief was consistent with earlier actions by federal administrators for Medicaid, the state-federal health insurance program for low-income and disabled people. Medicaid Administrator Donald Berwick sent a letter to his Indiana counterpart on June 1 saying federal law states beneficiaries can obtain general health services from any qualified provider and the mere fact that Planned Parenthood performs abortions separately does not disqualify it.

Indiana Solicitor General Thomas Fisher, in a final brief filed earlier this week, said the Berwick letter was not final and authoritative because Indiana can appeal his decision. Indiana opposes the injunction because, even though Medicaid doesn’t pay for abortions in most cases, the program may provide indirect funding by subsidizing some of Planned Parenthood’s overhead costs.

However, the Justice Department brief said the letter was indeed authoritative because the Department of Health and Human Services, which administers the Medicaid program, was applying its “longstanding interpretation of the complex and technical Medicaid statute” with the letter, which rejected changes to Indiana’s Medicaid plan to account for the new state law.

“HHS has long taken the position that a state’s criteria for qualification must be related to the provider’s ability to render services and properly bill for those services,” the 23-page brief said.

ILB: The brief itself is 23 pages, and it is accompanied by a 29-page Exhibit setting out the 2004 disapproval of a Maryland plan amendment by the CMS administrator. Here is the entire 52-page filing.

Posted by Marcia Oddi on June 17, 2011 09:41 AM
Posted to Indiana Courts