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Complaint Charging Florida Medicaid Program with Sex Discrimination
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Filed October 5, 2001
In The Circuit Court of The Second Judicial Circuit,
In and For Leon County, Florida
The Women of the State of Florida, as represented by Monica Navarrete; A Choice for Women; Edward Watson, M.D.; and Women's Emergency Network,
Plaintiffs,
v.
Florida Agency for Health Care Administration
Defendant.
Complaint
Plaintiffs, by and through their undersigned attorneys, bring this Complaint against Defendant, and in support thereof aver the following:
1. This is a civil action under the Florida Constitution challenging the discriminatory exclusion of medically necessary abortions from Florida's Medicaid program, a program that exists to provide medically necessary health services to the State's low-income residents.
2. Specifically, Plaintiffs challenge three regulations promulgated by defendant Agency for Health Care Administration (ACHA), Fla. Admin. Code r. 59G-4.150 (in-patient hospital services); Fla. Admin. Code r. 59G-4.160 (out-patient hospital services); Fla. Admin. Code r. 59G-4.230; (physician services), as well as the Florida Medicaid Physician Coverage and Limitations Handbook, January 2001, at 2-3, and the Florida Medicaid Provider Reimbursement Handbook at 7-37 through 7-39, both of which are incorporated by reference into the three regulations.
These regulations and handbooks (collectively, "the funding ban") prohibit Medicaid funding for abortions except when to prevent the danger of death to the pregnant woman or when the pregnancy is the result of rape or incest.
3. These regulations carve out a discrete exception to the Florida Medicaid program's provision of virtually all medically necessary health services to the eligible poor, including all medical services needed to preserve men's reproductive health. Indeed, the only categories of medical services excluded from Florida's Medicaid program are abortions and certain organ transplants.
4. The funding ban jeopardizes the health and lives of Medicaid eligible women seeking abortions by denying them needed medical services when their pregnancies threaten their health. These women are forced to either delay medically necessary abortions while they attempt to raise funds for the procedure, or to carry health-threatening pregnancies to term. Women who do manage to raise the funds for an abortion do so at great costs to themselves and their families, often forgoing basic necessities to pay for the service. Other women in these circumstances turn to unsafe, illegal or self-induced abortions.
5. The funding ban discriminates on the basis of sex by: denying low-income women access to health care services on the same terms as to low-income men; reinforcing an outmoded stereotype of women as primarily childbearers who should be willing to sacrifice their own health in order to produce children; and causing poor women, but not poor men, to endure rather than prevent impairments to their health, which impairments hinder those women's ability to participate fully in the workforce, political life, the family and society.
6. Further, the creation of the funding ban by Defendant and its predecessors contravenes State statutes requiring Medicaid coverage for medically necessary services related to pregnancy and forbidding sex discrimination in the Medicaid program. Accordingly, the funding ban is an invalid exercise of delegated legislative authority.
Jurisdiction
7. This court has jurisdiction under Art. V, ?? 5 & 20 of the Florida Constitution, and pursuant to Fla. Stat. Ann. ? 26.012(2)(c) and (3), which provides that the Circuit Courts shall have exclusive original jurisdiction "in all cases in equity" and that the Circuit Courts may issue injunctions.
Parties
A. Plaintiffs.
8. Plaintiff Monica Navarrete is a twenty-nine year old woman residing in Dade county, Florida. On information and belief, Ms. Navarrete is eligible for Medicaid benefits as a "medically needy recipient." She has two children. Ms. Navarrete is pregnant and desires to undergo an abortion. Ms. Navarrete's abortion is medically necessary under the terms of the Medicaid program for the following reasons. As a child, Ms. Navarrete experienced seizures and was diagnosed with epilepsy. As she grew older, she stopped having seizures and was taken off her epilepsy medicine. During a previous pregnancy, Ms. Navarrete's seizures recurred, causing the death of her fetus. As a result, the last time Ms. Navarrete became pregnant, her physicians placed her on Dilantin, an anti-seizure medication. She was able to continue her pregnancy and gave birth to her baby. After her baby was born, physicians discovered that the baby suffered from osteogenesis imperfecta, a condition which makes him very vulnerable to broken bones. Her baby has since suffered broken bones and is having difficulty learning to walk. Physicians have informed Ms. Navarrete that osteogenesis imperfecta may be a genetic condition and may also be caused by her taking Dilantin during pregnancy, as high levels of Dilantin cause bone softening. Unless Ms. Navarrete terminates her pregnancy, she will have to choose between forgoing her anti-seizure medication at the risk of her health and losing her pregnancy and taking Dilantin at the risk of causing her baby to be born with osteogenesis imperfecta. By terminating her pregnancy, Ms. Navarrete can best ensure her ability to preserve her own health and take care of her two children, one of whom is already suffering from a serious medical condition.
9. Plaintiff A Choice for Women ("ACW"), which is located in Miami, Florida, provides a wide spectrum of reproductive health care including abortion, pregnancy tests, contraceptive services and referrals, pap smears, annual examinations, ultrasound, testing for sexually transmitted diseases, breast examinations, and non-directive options counseling (including adoption referrals and referrals for prenatal care). ACW provides approximately 3,500 abortions per year. Approximately ten percent of ACW's patients are Medicaid eligible. In this action, ACW asserts its own interests and the interest of its Medicaid eligible patients.
10. Plaintiff Edward Watson, M.D. is a physician who provides reproductive health services at ACW, of which he is part-owner. He is licensed to practice medicine in Florida. Dr. Watson provides a broad spectrum of reproductive health services at ACW, including abortion, annual examinations, pap smears, ultrasound, contraception and contraceptive counseling, non-directive options counseling (including referrals for prenatal care and adoption), breast examinations, testing for sexually transmitted diseases, and tubal ligations. Dr. Watson provides the majority of abortions performed at ACW. In this action, Dr. Watson asserts his own interests and the interests of his Medicaid eligible patients.
B. Defendant.
11. Defendant, State of Florida, Agency for Health Care Administration ("AHCA"), promulgated the regulations challenged in this case, and it is the state agency responsible for the administration of Florida's Medicaid program pursuant to Section 20.42, Florida Statutes.
Class Action Allegations
12. Pursuant to Rule 1.220(b)(1)(B) and (b)(2) of the Florida Rules of Civil Procedure, plaintiff Monica Navarrete brings this action on behalf of herself and all others similarly situated, namely all women in the state of Florida who are, have been, or will be pregnant and Medicaid-eligible during the pendency of the litigation; and who have decided or will decide in the consultation with their physicians, to have abortions that are medically necessary but not life-saving, as those terms are defined in Florida's Medicaid program.
13. The plaintiff class is so numerous that separate joinder of each member is impracticable. On information and belief, it is estimated that the plaintiff class consists of several thousand women.
14. The claims of Plaintiff Navarrete raise questions of law and fact common to the plaintiff class. The questions of law include whether Defendant's exclusion of medically necessary abortions from a program of otherwise comprehensive health services, including all reproductive health services for men, violates plaintiffs' constitutional rights under the Florida Constitution. Common questions of fact include the medical need for some abortions, the cost of abortions in Florida, the financial status of members of the Plaintiff class, the risk to Plaintiffs' health due to delaying or forgoing abortions, and the impact on Plaintiffs' lives and health of carrying risky pregnancies to term against their wishes.
15. The claims of plaintiff Navarrete are typical of the claims of the plaintiff class, in that they arise from the same acts and omissions of Defendant, namely Defendant's denial of Medicaid coverage for abortions while simultaneously offering Medicaid coverage for virtually all other medically necessary health services, including all services needed to preserve men's reproductive health.
16. Plaintiff Navarrete can fairly and adequately protect and represent the interests of each member of the plaintiff class. In asserting her own rights under the Florida constitution to Medicaid-funded abortions, Plaintiff Navarrete will simultaneously assert the rights of all members of the plaintiff class. In addition, the attorneys for the class have substantial experience in constitutional and class action litigation, and will strenuously protect the interests of all members of the class.
17. Adjudications concerning Navarrete would as a practical matter be dispositive of the interests of other members of the putative class, in that plaintiffs seek declaratory and injunctive relief applicable to the class as a whole.
18. In denying Medicaid coverage for medically necessary abortions while simultaneously offering Medicaid coverage for virtually all other medically necessary services including such services needed to preserve men's reproductive health and all other pregnancy related services, including childbirth, Defendant has acted on grounds generally applicable to all members of the class, thereby making appropriate final injunctive and declaratory relief concerning the class as a whole.
Statutory Framework
19. Medicaid is a joint federal-state entitlement program that provides medical assistance to the poor. 42 U.S.C. ? 1369B. Federal law sets out mandatory and optional categories to services funded under Medicaid. 42 U.S.C. ?? 1396a, 1396d(a).
20. Under the Hyde amendment, federal funds can be used to reimburse only those abortions necessary to save a woman's life, and in cases where the pregnancy results from rape or incest. See Consolidated Appropriations?FY 2001, Sec. 508 and 509, Pub. L. No. 106-554, 114 Stat. 2763 (2000). However, a state may provide additional Medicaid services, including abortion services, if it does so at its own expense.
21. Section 409.901, Fla. Stat., et seq. is the enabling statute for Florida's participation in the federal Medicaid program. The statute provides, inter alia, that Defendant "shall pay for services necessary to enable a recipient voluntarily to plan family size or to space children. These services include information, education, drugs and supplies, and necessary medical care and follow-up". ?409.905(3). The statute also provides that Defendant "shall pay for services and procedures rendered to a recipient by, or under the personal supervision of, a person licensed under state law to practice medicine or osteopathy. These services . . . shall be medically necessary for the treatment of an injury, illness or disease. . . ." ? 409.905(9). The statute further defines "covered injury or illness" as any "pregnancy . . . for which Medicaid is, or may be, obligated to provide, or has provided, medical assistance." ? 409.901(8).
Pursuant to these directives, Florida Medicaid provides its indigent citizens with virtually all non-experimental, medically necessary health care. ?? 409.902, 409.905, 409.906, Fla. Stat. (1995 & Supp. 1999). "Medically necessary" services are those that are:
1. . . . necessary to protect life, to prevent sickness or significant disability, or to alleviate severe pain;
2. . . . individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs;
3. . . . consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational;
4. . . . reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; and
5. . . . furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider.
Fla. Admin. Code R. 59G-1.010(166)(a).
22. Medically necessary abortions fall within these definitions of covered services.
23. Despite these statutory directives, AHCA promulgated the funding ban, which prohibits Medicaid reimbursement for abortion services unless: (a) a woman has a physical condition that would place her "in danger of death unless an abortion is performed;" (b) an abortion is needed "to save the life of the mother;" or (c) the pregnancy results from rape or incest. Florida Medicaid Physician Coverage and Limitations Handbook, January 2001, at 2-3
24. Florida Medicaid pays for virtually all medically necessary health services. The only medically necessary procedures that the program fails to cover are abortions and certain organ transplants. Florida Medicaid Physician Coverage and Limitations Handbook, January 2001, at 2-3 through 2-21.
25. Florida Medicaid pays for all medically necessary services related to men's reproductive health, including the provision of Viagra for impotency.
26. No health service utilized only by men is excluded from Florida's Medicaid program.
Factual Allegations Common to All Counts
27. Under the funding ban, Medicaid reimbursement for abortions and related procedures is available only if the life of the mother would be endangered if the fetus were carried to term, or in cases where the pregnancy is a result of rape or incest. Accordingly, Plaintiff Navarrete cannot obtain Medicaid reimbursement for the cost of the abortion she is seeking. Due to this lack of funds, she has been forced to forgo paying her utility bills and seek aid from charitable organizations in order to gather funds to try to obtain an abortion.
28. Dr. Watson and ACW provide abortion services and other medical care to a number of women who are Medicaid eligible and for whom an abortion is medically necessary. These women face delays in obtaining, or are simply unable to obtain, abortions because of their inability to afford the cost of an abortion, and the unavailability of Medicaid reimbursement for the abortion and related procedures. As a result, these women suffer increased health risks and other costs.
29. Unintended pregnancy is a serious public health problem in Florida, and Medicaid eligible women have a higher risk of unintended pregnancy than women in higher income categories.
30. Medicaid eligible women who are unable to obtain medical funding to terminate medically complicated pregnancies are forced to carry to term, find alternative funding, or resort to unsafe or self-induced abortion. Typically, these women have great difficulty paying for an abortion and must draw upon money reserved for food, rent, clothing, and other family essentials to pay for the procedure. Some of these women are homeless, in abusive relationships, addicted to drugs or alcohol, or young women in dysfunctional families in which they may be subject to sexual and/or physical abuse. Moreover, most of these women, regardless of their familial or personal circumstances, must delay the procedure in order to raise the money, which increases the risks of the procedure to their health.
31. The cost of an abortion in Florida ranges from approximately $300 to $1300. Abortions in hospitals cost a great deal more. Related costs, such as transportation, childcare, missed work, and aftercare, increase the basic costs for many members for the plaintiff class.
32. One study in a state with a comparable funding ban found that approximately 20% of Medicaid eligible women who seek abortions are unable to obtain the procedure due to their inability to raise funds. Another study indicates that in states with comparable funding bans, approximately 22% of the Medicaid eligible women who obtain second trimester abortions would have obtained less risky and less costly first trimester abortions had Medicaid funds been available.
33. Delay in the performance of an abortion increases the health risk that women face in connection with the procedure. The risk of mortality (death) from an abortion performed at thirteen to fifteen weeks is nine times greater than for an abortion performed at 8 weeks or earlier. As to morbidity (major health complications), there is a 20% increase in risk with each week after the eighth week of pregnancy. Nevertheless, abortions up to at least 21 weeks gestational age are safer than carrying a pregnancy to full term.
34. Examples of conditions which may make an abortion medically necessary include: hypertension, diabetes, renal disease, cancer, and heart disease.
35. Funding medical services for women who choose to become mothers, while denying coverage for medically necessary abortion to those who decide to terminate a pregnancy, is a state policy that reinforces stereotypes that the "good" and "natural" role for women is motherhood. This state-created stereotype undermines economic and educational equality efforts for women in Florida.
36. When physicians inform Medicaid eligible women that the state will cover their medical costs only if they forgo abortion, women are made to feel that abortion is a disfavored and disrespectable choice, even when the procedure is necessary to preserve their mental or physical health.
37. Moreover, even when a physician and his or her patient agree that an abortion is medically necessary, the denial of funding under the regulations undermines the physician's medical judgment and advice and pressures patients to reject such advice in favor or the funded option of carrying to term and motherhood.
38. Pregnancy related medical services are funded under Florida Medicaid. The purpose, intent, and effect of the regulations excluding abortion from coverage is to dissuade women to sacrifice their own health in order to carry a pregnancy to term.
Count I
Sex Discrimination
39. All allegations of paragraphs 1 through 38 are realleged as if fully set out herein.
40. The Florida Constitution's equal protection clause, article I, section 2, as amended by the State equal rights amendment in 1998, provides that: "All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty [and] to pursue happiness?"
41. The funding ban violates Plaintiffs' right to equal protection because it discriminates against women by subjecting them to more onerous eligibility standards for some services than men, and by perpetuating an outmoded stereotype of women's primary and proper role as childbearers.
COUNT II
Invalid Exercise of Delegated Authority
42. All allegations of paragraphs 1 through 42 are realleged as if fully set out herein.
43. The funding ban promulgated by Defendant and its predecessors contravenes a state statute and therefore constitutes an invalid exercise of Defendant's delegated authority.
44. The funding ban excludes medically necessary abortions despite the fact that Florida statutes ?? 409.905(3) and 409.901(5) explicitly require Medicaid coverage of medically necessary pregnancy-related services.
1. 1. WHEREFORE, plaintiffs respectfully pray that this Court:
A. Declare the challenged regulations and handbooks unconstitutional on their face as a matter of law to the extent that they prohibit Medicaid funding for medically necessary abortions;
B. Declare that Medicaid funds shall be available for abortions on the same basis as Medicaid funds are available for any other medically necessary care for persons eligible under Medicaid funding guidelines;
C. Enter a permanent injunction against Defendant prohibiting enforcement of the challenged regulations and handbooks to the extent that they prohibit Medicaid funding for medically necessary abortions;
D. Require Defendant to dispense to Plaintiffs the amounts of money improperly withheld by the State for medically necessary abortions performed on members of the plaintiff class during the pendency of this case;
E. Award such further relief as this Court may deem just and appropriate.
Respectfully Submitted,
ACLU Foundation of Florida
314 West Jefferson Street
Tallahassee, Florida 32301
(904) 425-1050
Florida Bar No. 0125540
Bonnie Scott Jones*
The Center for Reproductive Law & Policy
120 Wall Street, 14th Floor
New York, NY 10005
(917) 637-3600
Attorneys for Plaintiffs
*Application for Pro Hac Vice Admission to be filed
