Analysis: Shooting First, Asking Questions Later

If Planned Parenthood has been billing Texas Medicaid for services it hasn’t been rendering, it makes sense to cut off the money and go after the organization for whatever it stole, but it does seem like you would do the investigation first.

Planned Parenthood clinic in Austin, Texas.

If Planned Parenthood has been billing Texas Medicaid for services it hasn’t been rendering, as Gov. Greg Abbott and state health officials suggested this week, it makes sense to cut off the money and go after the organization for whatever it stole.

But it does seem like you would do the investigation and ask for the financial records before you shut everything down and put out a news release to brag about it.

Texas has apparently started a Department of Pre-Crime, like the fictional one depicted in Minority Report, the Philip K. Dick story that became a Steven Spielberg movie in 2002. Tom Cruise played a cop whose job was to arrest people who were about to commit crimes, which would be sort of a cool idea if you were always right.

Maybe the state of Texas has this one right. But it was curious to watch the order of things.

On Monday, the Office of Inspector General of the Texas Health and Human Services Commission announced that it would kick Planned Parenthood out of the Medicaid program for “acts of misconduct” that came to light in undercover videos filmed earlier in the year by anti-abortion activists. The state reimbursed the organization for $310,000 in 2015 and also disbursed $2.8 million in federal funds to Planned Parenthood clinics.

It wasn’t until Thursday that the office of the inspector general made its unannounced visits to Planned Parenthood centers in Dallas, Houston, San Antonio and Brownsville, presenting people there with subpoenas and requests to turn over Medicaid, billing and personnel documents. Planned Parenthood officials characterized the state’s action as “a fishing expedition.”

The government gave the target of a regulatory action three days' notice before collecting the records and other materials that are supposed to substantiate that action. From a purely procedural standpoint, that’s a little goofy. The folks from the inspector general’s office, under previous management, aggravated vendors and health care providers with a practice of withholding reimbursements on the basis of complaints and allegations — without waiting to see whether those things were actually true.

Now its presumptions of guilt appear to have escalated. Planned Parenthood might well have done something that would justify cutting it out of the program. But even if all of those records exonerate the organization, the government got in its licks.

As a regulatory exercise, it appears to be a bit of a mess. As a political exercise, it’s working nicely so far.

If the allegations against Planned Parenthood are true, the government should offer up the evidence before it starts the public shaming. That’s how regulators handle it when oil and gas producers spill chemicals, when industrial companies get tangled in workers’ compensation scams, when fertilizer facilities blow up in residential areas, when insurance companies come under scrutiny, or when someone doesn’t pay the right amount of taxes.

If the allegations aren’t true, the exercise keeps Planned Parenthood on its heels, where its political foes want it.

On its face, the investigators are out to determine whether allegations made in those undercover videotapes were true, and whether Planned Parenthood violated any laws or regulations. The organization’s clinics that provide abortions are already barred from receiving Texas Medicaid funds for any services.

Here’s what regulators asked for in subpoenas delivered on Thursday: “All records for each patient where both of the following events occurred: (a) the provider billed Texas Medicaid or any other Health and Human Services program for any service between Nov. 1, 2010 through Sept. 30, 2015, and, for that same patient; (b) the provider performed or provided an abortion and removed or preserved any part of the aborted fetus to be used for any research purpose.”

Officials with Planned Parenthood Gulf Coast say they last participated in fetal tissue research in 2010 as part of a study done by the University of Texas Medical Branch. The videos that sparked the investigation include recordings of staff from that office answering inquiries about making fetal tissue available for research.

“The Inspector General says he has evidence showing that Planned Parenthood altered the abortion procedure in order to obtain fetal tissue. This violates federal law, as well as state law,” Abbott said in a posting on his campaign website this week. “I hope for a legal challenge here, because I want to get these Planned Parenthood officials under oath and get them to swear about the practices that they were conducting in the State of Texas.”

And in his Monday letter to the organization, Inspector General Stuart Bowen wrote that his office has “information suggesting that fraud and other related program violations” took place at Planned Parenthood clinics that provide Medicaid services.

He was not specific about the Medicaid violations, nor was Abbott. And three days later, they came around to ask for records that might confirm their claims.

They hit their political target. Now they have to justify taking the shot.

Disclosure: Planned Parenthood was a corporate sponsor of The Texas Tribune in 2011. A complete list of Tribune donors and sponsors can be viewed here.