By DAN MARGOLIES
Kansas has dropped its effort to terminate Planned Parenthood’s participation in Medicaid, ending a three-year-long court battle that the state lost at every turn.
The change in policy wasn’t announced publicly but rather came in the form of a joint stipulation to dismiss Planned Parenthood’s lawsuit challenging the state’s move.
The stipulation, which was filed in federal court on Friday, stated that the Kansas Department of Health and Environment (KDHE), which oversees the state Medicaid program, has notified Planned Parenthood of its decision to rescind the Medicaid terminations. The court approved the dismissal of the lawsuit on Monday morning.
Ashley All, a spokeswoman for Kansas Gov. Laura Kelly, said the state’s decision to end the litigation came after multiple court rulings against the previous administration.
“To continue with this costly litigation would be unwise and out of step with the priorities of Kansas,” All said. “Gov. Kelly is focused on expanding healthcare options to women, not limiting them.”
Still up in the air is the extent to which Kansas will be required to reimburse Planned Parenthood for the legal fees it incurred. Both sides have requested an additional 60 days to resolve the matter. The legal fees are likely to amount to several hundred thousand dollars, if not more, since the case has been litigated for three years and gone all the way up to the U.S. Supreme Court.
“We’re really pleased that this case has come to a resolution,” said Rachel Sweet, regional director of public policy and organizing for Planned Parenthood Great Plains in Overland Park, one of the two affiliates whose Medicaid funding Kansas sought to cut off.
“We believe that all Kansans deserve access to high-quality health care. and it shouldn’t matter where they live or how much money they make,” Sweet said. “If Medicaid is your insurance, you should be able to get the best care possible and we’re glad that this politically motivated fight is coming to a close.”
The legal saga dates to May 2016, when the administration of then-Gov. Sam Brownback notified Planned Parenthood Great Plains and the Planned Parenthood affiliate in St. Louis that it was terminating their Medicaid provider status.
Planned Parenthood Great Plains had several hundred Medicaid patients at the time – adults with monthly income of no more than $768 who were pregnant, disabled or parents. And though based in Missouri, Planned Parenthood in St. Louis operated a health center in Joplin, Missouri, near the Kansas state line, and served a small number of Kansas patients.
Both affiliates immediately sued KDHE, alleging the terminations were unlawful and based on spurious grounds. KDHE had cited the Overland Park’s alleged failure to cooperate with a solid waste disposal inspection and potentially fraudulent Medicaid claims submitted by the Planned Parenthood affiliates in Oklahoma and Texas as reasons for the terminations.
Planned Parenthood responded that it had cooperated with the solid waste disposal inspection, although it said it refused to allow inspectors to take photographs out of concern for patients and staff privacy and safety. And it said the affiliates in Oklahoma and Texas had no connection to the affiliates in Overland Park and St. Louis.
The move to end Planned Parenthood’s participation in Medicaid came not long after Brownback, in his State of the State address in January 2016, accused Planned Parenthood of trafficking in “baby body parts” and vowed to defund the organization.
Brownback made his remarks after anti-abortion activists in 2015 released a highly edited undercover video purporting to show that Planned Parenthood clinics illegally sold fetal tissue for profit.
A dozen states, including Kansas, launched investigations, but none of them – including Kansas – found evidence for the video’s claims. A Houston grand jury cleared Planned Parenthood of wrongdoing and indicted two of the makers of the video instead; those charges were later dismissed.
In July 2016, U.S. District Judge Julie Robinson blocked Kansas’ effort to cut off Planned Parenthood’s Medicaid funding, ruling the move likely violated federal law. A federal appeals court upheld her injunction in February 2018, finding the Medicaid law’s free-choice-of-provider provision gives Medicaid patients the right to seek family planning services from the “qualified” providers of their choice.
Kansas asked the U.S. Supreme Court to review that decision. But the court in December declined to hear the case, setting the stage for the lawsuit’s dismissal last week.
Kansas retained a high-powered East Coast law firm to represent it in the litigation. The firm, Consovoy McCarthy Park, was retained by President Donald Trumpearlier this month to fight House Democrats’ demand for six years’ worth of his tax returns.
The firm doesn’t come cheap. In the first three months after Kansas hired it, Consovoy billed Kansas more than $272,000, according to invoices obtained by KCUR under the Kansas Open Records Act. At that rate, assuming the firm continued to represent the state through last December, Kansas would have spent about $2.8 million in legal fees on the case.
Dan Margolies is a senior reporter and editor in conjunction with the Kansas News Service. You can reach him on Twitter @DanMargolies.
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