DSHS Finalizes Rules for State GR-Funded Women’s Health Program

As I wrote last week, HHSC announced that will wait to convert the Medicaid Women’s Health Program to a fully state-funded program. Still, the rules that would run the state-funded program exclude Planned Parenthood, jeopardizing access for so many eligible Texas women. It’s worth noting that yesterday, a Travis County judge ruled that Planned Parenthood can remain in the program for now. You can read more about that here.
CPPP had serious concerns about the program rules as initially proposed.  In addition to excluding Planned Parenthood, the largest provider of services in WHP, the proposed rule placed onerous restrictions on participating providers that would have dramatically reduced the number of providers who would participate in program, leaving eligible women without access to check-ups, family planning, and contraception.  The final rules removed the gag rule that would have kept doctors from talking about abortion with their patients, even women who are not enrolled in WHP.
One thing that didn’t change in the final rules is the exclusion of Planned Parenthood. Research shows providers that would remain in the program would not have the capacity to care for the tens of thousands of former Planned Parenthood clients.
Key changes to the final rules:
Changes to the rules as adopted for the DSHS fully GR-funded Texas Women’s Health Program

  • The fiscal note (cost projection) was updated to show the 5-year costs of program (the rules no longer assume an adult Medicaid expansion will replace WHP in 2014).  TWHP is projected to cost about $45 million in state GR per year.
  • §39.33(1) Definition of affiliate.  Amended to make clear that a doctor’s participation in a physician group practice where a member performs abortion doesn’t prevent other doctors in the practice from participating in TWHP.
  • § 39.33(8) Definition of elective abortion.  Expanded to include an exceptions: (1) where continuing the pregnancy puts the mom at risk of major physical harm, as certified by a doctor, and (2) in the case of severe fetal abnormality that is incompatible with life outside of the womb.  Doctors can perform abortions in these cases (also in cases of rape, incest, or risk of life of the mother) and participate in WHP.
  • §39.38(c).  Defining “promote.”  The gag rule was removed.  In the new rule, it appears that non-directive counseling and referral on abortion are now allowed, but providers cannot take affirmative action to secure an elective abortion for a WHP client (such as making the appointment or negotiating a fee).  Providers can give, “upon the patient’s request, neutral, factual information and nondirective counseling, including the name, address, telephone numbers, and other relevant information about a provider.”
  • §39.45 severability. The following “poison pill” language was added: “(d) Accordingly, to the extent that §39.33(1) [definition of affiliate] of this title, §39.38 [restrictions on participating providers] of this title, or this section [severability] is determined by a court of competent jurisdiction to be unconstitutional or unenforceable, or to the degree an official or employee of DSHS, the Health and Human Services Commission, or the State of Texas is enjoined from enforcing these sections, the department shall regard this entire subchapter as invalid and unenforceable and shall cease operation of the program.”  Translated, that means that if courts decide that Texas actions to exclude Planned Parenthood are unconstitutional, DSHS will end WHP.
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