The Family Planning Association of Maine is appealing an order by the Maine Department of Health and Human Services to repay over $180,000 in reproductive health care services that the state says were improperly billed. The lawsuit stems from a DHHS audit of MaineCare records from 2006 to 2010, which concluded that FPAM improperly billed Medicaid $184,000 for “abortion-related services” in violation of Medicaid law. Family Planning operates a health care clinic that performs abortion procedures in Augusta. 

“Maine DHHS is committed to conducting audits to ensure compliance with all laws and rules governing the taxpayer-funded programs administered by the Department,” said Maine DHHS Commissioner Mary Mayhew in a statement. “Audits of Medicaid providers are a key component of that work and required under the federal Medicaid program.”

Under state law, MaineCare may only cover abortions if necessary to save the life of the mother or if the pregnancy is the result of rape or incest. Federal law also prohibits federal funding from being used to cover abortions. However, Maine DHHS has determined  that reproductive health care services provided to women on the same day as they had an abortion must be “abortion-related” regardless of whether they are directly related to the procedure. 

The DHHS audit of 100 MaineCare members who received transvaginal ultrasounds determined that Family Planning billed MaineCare for “ancillary abortion services” and the birth control shot Depo-Provera. The DHHS auditor concluded that the main reason for the visit was pregnancy because the medical records referenced previous pregnancy tests, ultrasounds, and the last menstrual period. Following the audit’s release in 2011, Family Planning filed for an informal review of the audit’s findings, which was completed by DHHS last October. Family Planning then requested an administrative hearing, which was held in April. A final decision to order the charitable nonprofit to pay back the reimbursements was delivered on September 31. 

FPAM argues that the DHHS decision was politically biased and based on a reinterpretation of MaineCare rules. 

“Immediately upon taking office, the LePage administration targeted abortion providers,” states Family Planning’s appeal filed in Kennebec County Superior Court on October 2.

The Maine Attorney General’s Office has confirmed that it will be representing the LePage administration in the lawsuit. 

In its court filing, FPAM states that prior to LePage’s tenure,  under the two previous governor’s administrations DHHS had “consistently interpreted MaineCare rules to cover reimbursement for clinically necessary reproductive health care services provided to pregnant women, regardless of whether those women subsequently had abortions.” 

However, after LePage took office in 2011, FPAM argues that the department reinterpreted the rules to equate  “clinically necessary reproductive healthcare services” provided to pregnant women on the same day as an abortion as  “abortion-related services.” As a result, the organization contends that the LePage administration has retroactively imposed a rule that was not enforced during the period that was audited. 

“The Final Decision is arbitrary, capricious, and characterized by abuse of discretion, in that [DHHS has] attempted to reverse a long-standing official interpretation of the MaineCare Benefits Manual without going through administrative rule making,” the lawsuit alleges. 

FPAM also accuses Maine DHHS of disclosing publicly the names of MaineCare beneficiaries who had abortions. The suit alleges that DHHS first released the names of the women in July during an administrative hearing. After the organization objected, a hearing officer amended the decision to redact the names. But DHHS allegedly published the names of the women online when Commissioner Mayhew issued the final decision on September 3. The names were again redacted after FPAM objected. The organization called the actions a “clear and direct violation of laws and rules governing MaineCare.”