HB 228-FN – AS AMENDED BY THE HOUSE

18Jan2012… 0237h

2011 SESSION

11-0007

01/10

HOUSE BILL 228-FN

AN ACT prohibiting the use of public funds for abortion services.

SPONSORS: Rep. Willette, Hills 6; Rep. Kappler, Rock 2; Rep. Bates, Rock 4; Rep. Cebrowski, Hills 18; Rep. Groen, Straf 1; Rep. J. Richardson, Merr 8

COMMITTEE: Health, Human Services and Elderly Affairs

AMENDED ANALYSIS

This bill clarifies public funding of abortions.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

18Jan2012… 0237h

11-0007

01/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eleven

AN ACT prohibiting the use of public funds for abortion services.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Whole Woman’s Health Funding Priorities Act. Amend RSA by inserting after chapter 126-U the following new chapter:

CHAPTER 126-V

WHOLE WOMAN’S HEALTH FUNDING PRIORITIES ACT

126-V:1 Legislative Findings and Purpose.

I. Limited federal and state public funding exists for family planning and preventive health services for women generally, and for maternal and fetal patients in particular. Fiscal constraints mandate that the state allocate available funding efficiently. The principal means by which the state may fulfill its duty to manage these funds is to ensure that funds are distributed by priority to the most efficient point-of-service health care providers. The general court finds that public and private providers of primary and preventive care utilize public funds more effectively than providers of health care services that are specialized to particular medical services or discrete patient populations. Consequently, it is the intention of the general court through this act and any rules and policies adopted under this act to prioritize the distribution and utilization of public funds for family planning, reproductive health care, and maternal/fetal care to such public and private primary and preventive care providers.

II. Prioritization of public health care funding to primary and preventive care also reflects sound health care policy. Individuals who have a primary care clinician are more likely to access health care services, leading to more favorable long-term outcomes. Health care costs are lowered when primary and preventive care is provided by such primary care clinicians in a setting that addresses the whole person by emphasizing counseling, screening, and early detection of leading causes of morbidity and mortality including diabetes, hypertension, obesity, cardiovascular and renal diseases, and asthma. Indirect costs such as lost worker productivity and employer health care costs are also reduced. Most importantly, individual citizens will lead longer, healthier, and happier lives as a result of having less fragmented health care.

III. It is also the public policy of this state to ensure delivery of comprehensive preconception and prenatal care for maternal and fetal patients in order to reduce maternal and fetal morbidity and mortality. The United States Centers for Disease Control and Prevention states, “Comprehensive preconception and prenatal care includes encouraging women to stop smoking, refrain from using alcohol and other drugs, eat a healthy diet, take folic acid supplements, maintain a healthy weight, control high blood pressure and diabetes, and reduce exposure to workplace and environmental hazards. In addition, screening and providing services to prevent intimate partner violence and infections (e.g., HIV, STI and viral hepatitis) help to improve the health of the mother and the baby.” Delivery of these critical services is best accomplished through a single point-of-service provider such as a primary care provider, and directed by a primary care clinician who has knowledge of the patient’s medical history and personal, familial, and environmental health factors. The utilization of public funding to maximize effective delivery of holistic prenatal and maternal health care conflicts with medical intervention models that emphasize the provision of services to discrete patient sub-populations, including women of child-bearing age, to address discrete patient conditions, or provide particular therapies.

IV. The general court also declares that it shall be the policy of this state that federal public funds shall not be provided for the direct or indirect costs, including, but not limited to, administrative costs or expenses, overhead, employee salaries, rent, and telephone and other utilities of non-federally qualified abortions, abortion referral, or abortion counseling, and these activities shall not be subsidized, either directly or indirectly, by federal public funds.

126-V:2 Definitions. In this chapter:

I. “Abortion” means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with the knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child. Such use, prescription, or means is not an abortion if done with the intent to:

(a) Save the life or preserve the health of the unborn child;

(b) Remove a dead unborn child cause by spontaneous abortion; or

(c) Remove an ectopic pregnancy.

II. “Department” means the department of health and human services.

III. “Federally qualified abortion” means an abortion qualified for federal reimbursement under the Medicaid program, 42 U.S.C.A. section 1396 et seq., and as amended hereafter.

IV. “Federally qualified health center” means a health care provider that is eligible for federal funding under 42 U.S.C. section 1396d(1)(2)(B).

V. “Hospital” means a primary or tertiary care facility licensed pursuant to RSA 151.

VI. “Public funds” means state funds from whatever source, including without limitation state general revenue funds, state special account and limited purpose grants and/or loans, and federal funds provided under Title X of the Public Health Service Act (42 U.S.C. section 300 et seq.) and Title V (42 U.S.C. section 701 et seq.), Title XIX (42 U.S.C. section 1396 et seq.) and Title XX (42 U.S.C. section 1397 et seq.) of the Social Security Act.

VII. “Rural health clinic” means a health care provider that is eligible for federal funding under 42 U.S.C. section 1395x(aa)(2).

126-V:3 Prioritization of Public Funds to Health Care Entities. Subject to any applicable requirements of federal statutes, rules, regulations, or guidelines:

I. Any expenditures or grants of public funds for family planning services by the state made by the department shall be made in the following order of priority to:

(a) Public entities;

(b) Non-public hospitals and federally qualified health centers;

(c) Rural health clinics; and

(d) Non-public health providers that have as their primary purpose the provision of the primary health care services enumerated in 42 U.S.C. section 254b(a)(1).

II. The department shall not enter into a contract with, or make a grant to, any entity that performs non-federally qualified abortions or maintains or operates a facility where non-federally qualified abortions are performed.

126-V:4 Enforcement.

I. The attorney general shall have authority to bring an action in law or equity to enforce the provisions of this chapter, and relief shall be available in appropriate circumstances including recoupment and declaratory and injunctive relief, including without limitation suspension or disbarment.

II. Any entity eligible for the receipt of public funds, as defined in RSA 126-V:2, VI, shall possess standing to bring any action that the attorney general has authority to bring pursuant to the provisions of this section, provided, however, that an expenditure or grant of public funds made in violation of this chapter has resulted in the reduction of public funds available to it, and that any award of monetary relief shall be made to an appropriate public officer for deposit into one or more accounts maintained by the state for public funds enumerated in RSA 126-V:3.

III. In an action brought pursuant to this section, a prevailing plaintiff shall be entitled to an award of reasonable attorneys’ fees and costs.

126-V:5 Right of Intervention. The general court, by joint resolution, may appoint one or more of its members to intervene as a matter of right in any case in which the constitutionality of this law is challenged.

126-V:6 Severability. If any provisions of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provisions or applications, and to this end the provisions of this chapter are severable.

126-V:7 Effect on Appropriations. Any appropriation of public funds made by the department in violation of the provisions of this chapter shall be null and void, and the funds allocated pursuant to such appropriations shall be reallocated to eligible entities.

2 Effective Date. This act shall take effect 60 days after its passage.

LBAO

11-0007

Amended 03/20/12

HB 228 FISCAL NOTE

AN ACT prohibiting the use of public funds for abortion services.

FISCAL IMPACT:

The Department of Health and Human Services states this bill, as amended by the House (Amendment #2012-0237h), will have an indeterminable fiscal impact on state, county and local revenues and expenditures.

METHODOLOGY:

The Department of Health and Human Services states this bill will prohibit the Department from entering into a contract with any provider who performs non-federally qualified abortions. The Department indicates it has Medicaid provider agreements with the 26 acute care hospitals in the state and 25 of the hospitals provide non-federally qualified abortion services. The Department makes the following assumptions concerning the fiscal impact on the Medicaid program:

• If hospitals continued to offer non-federally qualified abortion services the Department would have to terminate their Medicaid provider agreements;

• A reduction in the number of hospitals providing services to Medicaid enrollees could result in violation of 42 USC 1396a(a)(30)(A), which requires state Medicaid programs to ensure access to services for Medicaid enrollees equal to the access enjoyed by individuals who are commercially insured;

• Federal Medicaid law, 42 USC 1396a(a)(23) mandates that Medicaid enrollees may obtain care from any willing provider. By excluding providers from the state Medicaid network, based on the range of services offered, would violate the federal provision;

• Violation of the federal Medicaid requirements would force the Centers for Medicare and Medicaid Services to impose financial and or other sanctions against the state including withholding some, or all, of the federal match for the Medicaid program; and

• The total federal Medicaid match is approximately $700 million.

In Fiscal Year 2012, the Department will receive $818,263 of federal Title X family planning funds. Of this amount, $514,827 is combined with $410,079 in state general funds to fund contracts that serve approximately 10,000 individuals through 10 agencies. Services include comprehensive reproductive health care, breast and cervical caner screening, HIV testing, STI testing and treatment, and health education. The agencies are listed in the following table:

Agency

Title X Federal Funds

General Funds

Ammonoosuc CHC

$45,057

$35,890

Belknap-Merrimack CAP

$98,947

$78,815

Child Health Services

$27,040

$21,538

Concord Hospital

$55,958

$44,573

Coos County CHC

$32,540

$25,919

Goodwin CHC

$68,293

$54,398

Indian Steam HC

$13,979

$11,135

Lamprey HC

$97,715

$77,884

Weeks CHC

$28,043

$22,337

White Mountain HC

$47,255

$37,640

Total

$514,827

$410,129

The remaining $303,436 of federal funds covers administration of the program including two full-time state employees.

The Department assumes one of the agencies would not be funded based on the priorities established in proposed RSA 126-V:3 and the funds allocated to that contract would be reallocated to a provider that satisfies the priorities or be allocated among the remaining providers above. The Department states federal Title X guidelines require that pregnant women be offered the opportunity to receive information and counseling on prenatal care and delivery, infant care, foster care or adoption, and pregnancy termination. The Department assumes the agencies would no longer provide counseling or referral for pregnancy termination, the program would not comply with the Title X requirement, and the federal funds would no longer be available. In addition, the Department assumes the general funds would be returned to the state, and family planning services would discontinue.

The fiscal impact on local and county revenue and expenditures cannot be determined, but there will be an impact as a result of the costs associated with the decrease in reproductive healthcare.