This is in response to your request for an opinion regarding the above-referenced subject. As you know, Congress included as a general provision of the Departments of Labor, Health and Human Services, and Education and Related Agencies Appropriations Act of 1994, language regarding the funding of abortions. Pub. L. 103-112, § 509, 107 Stat. 1082, 1113 (1993). This Section provides as follows:

None of the funds appropriated under this Act shall be expended for any abortion except when it is made known to the Federal entity or official to which funds are appropriated under this Act that such procedure is necessary to save the life of the mother or that the pregnancy is the result of an act of rape or incest.

Id. (Emphasis added.) The underlined language represents a change from the "Hyde Amendment," Departments of Labor, and Health, Education and Welfare, Appropriations Act of 1977, Pub. L. No. 94-439, § 209, 90 Stat. 1418, 1434 (1976).

The Medicaid program is a joint federal-state program for which the state receives substantial federal financial participation. Federal oversight of the Medicaid program is assigned to the Health Care Financing Administration (HCFA), a part of the Department of Health and Human Services. Enclosed is a copy of HCFA Medicaid Bureau Letter dated December 28, 1993, to State Medicaid Directors from Sally K. Richardson, Director of Medicaid Bureau. That letter implements the above-quoted provision of the appropriation bill. The HCFA directive provides as follows:

As with all other mandatory medical services for which Federal funding is available, States are required to cover abortions that are medically necessary. By definition, abortions that are necessary to save the life of the mother are medically necessary. In addition, Congress this year added abortions for pregnancies resulting from rape and incest to the category of medically necessary abortions for which funding is provided. Based on the language of this year's Hyde Amendment and on the history of Congressional debate about the circumstances of victims of rape and incest, we believe that this change in the text of the Hyde Amendment signifies Congressional intent that abortions of pregnancies resulting from rape or incest are medically necessary in light of both medical and psychological health factors. Therefore, abortions resulting from rape or incest should be considered to fall within the scope of services that are medically necessary.

Letter of December 28, 1993 (emphasis added).

The Georgia Medical Assistance Act of 1977, 1977 Ga. Laws 384, established the Department of Medical Assistance (DMA) and authorized it "to adopt and administer a state plan for medical assistance in accordance with Title XIX of the federal Social Security Act." O.C.G.A. § 49-4-142(a). Federal law requires that state medicaid agencies pay for medically necessary services. 42 U.S.C. § 1396; Doe v. Busbee, 481 F. Supp. 46, 49 (N.D. Ga. 1979). Because HCFA has in its December 28, 1993, letter defined abortions covered under this appropriations act as "medically necessary," Georgia must pay for those services or risk the loss of federal funds. Such a disallowance would be inconsistent with O.C.G.A. § 49-4-142(a), which authorizes the Department of Medical Assistance "to establish such rules and regulations as may be necessary or desirable in order to execute the state plan and to receive the maximum amount of federal financial participation available in expenditures made pursuant to the state plan." See also O.C.G.A. § 49-4-157; 1977 Op. Att'y Gen. 77-64.

You have further asked whether specific language may be put into place to assure that only women who are actually victims of rape or incest are added to the coverage of medically necessary abortions. The HCFA directive of December 28, 1993, would appear to allow the state to place reasonable parameters for reporting or documentation of the victim's circumstances. In this regard, HCFA has provided:

The definition of rape and incest should be determined in accordance with each State's own law. States may impose reasonable reporting or documentation requirements on recipients or providers, as may be necessary to assure themselves that an abortion was for the purpose of terminating a pregnancy caused by an act of rape or incest. States may not impose reporting or documentation requirements that deny or impede coverage for abortions where pregnancies result from rape or incest. To insure that reporting requirements do not prevent or impede coverage for covered abortions, any such reporting requirement must be waived and the procedures considered to be reimbursable if the treating physician certifies that in his or her professional opinion, the patient was unable, for physical or psychological reasons, to comply with the requirement.

See Letter December 28, 1993; see also Doe v. Busbee, 471 F. Supp. 1326 (N.D. Ga. 1979).

Prepared by:

Senior Assistant Attorney General