Request By:
Peter D. Conn, Secretary
Department for Human Resources
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; Mark F. Armstrong, Assistant Attorney General
We are in receipt of your letter in which you ask us to review the legal opinion of the Office of Counsel of the Department for Human Resources (hereinafter referred to as "Department") on the impact of the decision rendered by the
Supreme Court of the United States in Beal v. Doe, 45 U.S.L.W. 4781 (U.S. June 20, 1977). Based upon its legal research which is set forth in your letter and attached hereto, the Office of Counsel of your Department obtained the legal conclusion that continued payments for nontherapeutic abortions with funds available under Kentucky's Medical Assistance Act, KRS 205.510 et seq. (and related statutes), is consistent with the decision in
Beal v. Doe, supra.
Pursuant to our review of the legal authorities cited by the Office of Counsel and our own independent search of the law, we are of the opinion that the decision of the Department to continue to make payments for nontherapeutic abortions with funds available under the state's Medical Assistance Act is consistent with the rule of
Beal v. Doe, supra. In
Beal v. Doe, supra, the Court held that Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. permits but does not require the several States to participate in the federal Medical Assistance Program (Medicaid) to fund the cost of nontherapeutic abortions. This decision must be read in conjunction with the policy of the state's Medical Assistance Act:
". . . [T]he policy of the Commonwealth to take advantage of all federal funds that may be available for medical assistance. To qualify for federal funds the secretary for human resources may by regulation comply with any requirement that may be imposed or opportunity that may be presented by federal law." KRS 205.520(3) (emphasis supplied) .
A plain reading of this statute reveals the intention of the legislature, cf.
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1961), that the Department seek all federal funds available for the state Medical Assistance Act.
Federal funds are available to pay for nontherapeutic abortions, see e.g. 42 U.S.C. § 1396 d(a)(4)(C). Indeed, it is only recently that the Congress has prohibited the use of federal money to pay for nontherapeutic abortions, see Departments of Labor and Health, Education and Welfare Appropriation Act, 1977, § 209, Pub. L. No. 94-439 (1976). Because the Secretary for Human Resources is authorized to obtain all available federal funds and because federal money to fund nontherapeutic abortions have been available, to continue to make payments for nontherapeutic abortions is clearly within the spirit of the Medical Assistance Act, cf.
City of Louisville v. Helman, Ky., 253 S.W.2d 598 (1953).
The correctness of the Department's interpretation of the state's Medical Assistance Act is buttressed by the fact that the federal act, 42 U.S.C. § 1396 et seq. (Medicaid) was enacted for the purpose of providing the same medical services to needy persons as are available to any other person, 42 U.S.C. § 1396a(10)(b). After the decision in
Roe v. Wade, 401 U.S. 113 (1973), nontherapeutic abortions were legalized and made available. To provide nontherapeutic abortions under the state's Medical Assistance Act was within fulfillment of ". . . an essential function, duty and responsibility of state government to provide medical care to its indigent citizenry. . ." KRS 205.520(1).
There is additional support for the legal conclusion that the Department is authorized by the state's Medical Assistance Act to make payments for nontherapeutic abortions. Pursuant to the authority of KRS 205.560, the department has enacted 904 KAR 1:009 to 904 KAR 1:015 which authorizes payments for physicians and outpatient services. Since their adoption in 1975, the Department has utilized these regulations as authority to make payments for nontherapeutic abortions. In view of the fact that the Medical Assistance Act and the regulations, cited supra, which were enacted thereunder are ambiguous on the issue here, the executive construction of the Department that payment for nontherapeutic abortions is authorized is entitled to great weight, cf.
Grantz v. Grauman, Ky., 302 S.W.2d 364 (1957).
One other observation may be made regarding these regulations and the executive construction placed upon them and the statutes by the Department. These regulations were adopted and made effective September 10, 1975, see e.g. 904 KAR 1:009. Since that time the legislature convened for the 1976 Regular Session and for the 1976 Extraordinary (Special) Session. In its Regular Session, the General Assembly amended certain portions of the state's Medical Assistance Act, see 1976 Ky. Rev. Stat. and Rules Serv. Ch. 119, at 260-261.
The Department has been making payments for nontherapeutic abortions under the Medical Assistance Act and the regulations adopted thereto and the legislature did not speak to the issue in the intervening sessions. This is persuasive that the Department's interpretation of the law is correct, cf.
City of Richmond v. Public Service Commission, Ky., 294 S.W.2d 513 (1956). Under these circumstances, the opinion of the Department's Office of Counsel that continued payments are lawful and consistent with
Beal v. Doe, supra, cannot be held clearly erroneous as a matter of law. Rather, whether such payments should be discontinued is a decision properly addressed to the General Assembly to be resolved in a legislative enactment.
SUMMARY: Based upon the legal authorities supplied by the Department's Office of Counsel in support of its conclusions of law, and our own independent search of the law, we are of the opinion that its legal conclusions are correct and the Department's decision to continue payments for nontherapeutic abortions from funds available under Kentucky's Medical Assistance Act is consistent with the rule of