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Title X (Public Health Service Act) Family
Planning Program
Angela Napili
Information Research Specialist
December 16, 2011August 28, 2012
Congressional Research Service
7-5700
www.crs.gov
RL33644
CRS Report for Congress
Prepared for Members and Committees of Congress
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Title X (Public Health Service Act) Family Planning Program
Summary
The federal government provides grants for voluntary family planning services through the
Family Planning Program, Title X of the Public Health Service Act, codified at (42 U.S.C. Section
§§ 300 to Section 300a-6. The program, enacted300a-6).
Enacted in 1970, it is the only domestic federal program
devoted solely to family planning and
related preventive health services. Title X is administered
through the Office of Population Affairs (OPA) under the Office of the Assistant Secretary for
Health
Affairs (OPA) in the Department of Health and Human Services (DHHS).
HHS). Although the
authorization of appropriations for Title X ended with FY1985, funding for the
program has
continued to be provided through appropriations bills for the Departments of Labor,
Health and Human Services, and Education, and Related Agencies (Labor-HHS-Education).
Within DHHS, Title X receives its funding through the Health Resources and Services
Administration (HRSA) account.
P.L. 112-10, the Department of Defense and Full-Year Continuing Appropriations Act, 2011,
provided $299.400 million for Title X in FY2011. The conference report for H.R. 2055, the
Military Construction and Veterans Affairs, and Related Agencies Appropriations Act, 2012,
would provide $296.838 million for Title X in FY2012. H.R. 2055 would continue
and Education, and Related Agencies (Labor-HHS-Education).
FY2012 funding for Title X is $293.870 million, 2% less than the FY2011 funding level of
$299.400 million. The Consolidated Appropriations Act, 2012 (P.L. 112-74) continues previous
years’ requirements that Title X funds not be spent on abortions, that all pregnancy counseling be
nondirective, and that funds not be spent on promoting or opposing any legislative proposal or
candidate for public office. Grantees would continue to be required to certify that they encourage
“family participation” when minors seek family planning services, and certify that they counsel
minors on how to resist attempted coercion into sexual activity. The billlaw also clarifies that family
planning providers are not exempt from state notification and reporting laws on child abuse, child
molestation, sexual abuse, rape, or incest.
The President’s FY2013 Budget requests $296.838 million for Title X, 1% more than the FY2012
funding level. The Senate-reported FY2013 Labor-HHS-Education Appropriations bill, S. 3295,
would provide $293.870 million. The draft appropriations bill approved by the House
Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related
Agencies would provide zero funding for Title X in FY2013.
The law (42 U.S.C. §300a-6) prohibits the use of Title X funds in programs where abortion is a
method of family planning. According to OPA, family planning projects that receive Title X funds
are closely monitored to ensure that federal funds are used appropriately and that funds are not
used for prohibited activities such as abortion. The prohibition on abortion does not apply to all
the activities of a Title X grantee, but only to activities that are part of the Title X project. A
grantee’s abortion activities must be “separate and distinct” from the Title X project activities.
Several bills addressing Title X have been introduced in the 112thCongress112th Congress. H.R. 217 and S. 96
would prohibit Title X grants to abortion-performing entities. H.R. 408 and S. 178 would
eliminate the Title X program. H.R. 1099 would prohibit federal spending on any family planning
activity. H.R. 1135, H.R. 1167, and S. 1904 would require an overall spending limit on meanstested welfare programs, defined to include family planning. S. 814 would require online
disclosure of audits conducted under Title X on any entity receiving Title X funds. H.R. 5650
would prohibit Title X grantees and contractors from discriminating against a health care entity
on the basis of whether it separately provides or refers for abortions, provides employees
coverage of abortions, or provides or requires training in performing abortions. H.R. 1 would
have eliminated funding for Title X for FY2011. H.R. 1 and H.Con.Res. 36 would have restricted
federal funding to the Planned Parenthood Federation of America (PPFA) and its affiliates for
FY2011.
The House-introduced FY2012 Labor-HHS-Education Appropriations bill, H.R. 3070, would
prohibit
would have prohibited the bill’s funds from being used for Title X. H.R. 3070 would also restricthave also
restricted the bill’s
funding to Planned Parenthood Federation of America funding to PPFA and its affiliates unless they certify that the
organization will
not perform abortions.
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Title X (Public Health Service Act) Family Planning Program
Contents
Title X Program Administration and Covered ServicesGrants .................................................................................... 1
FundingAdministration........................................................................................................................... 1
Family Planning Services Grants .............................................................................................. 1
Services ......................... 3
FY2012 Funding........................................................................................................................ 3
FY2012 Budget Request 1
Client Charges .............................................................................................................. 3
S. 1599, Departments of Labor, Health and Human Services, and Education, and
Related Agencies Appropriations Act, 2012 .................................................................... 4
H.R. 3070, Departments of Labor, Health and Human Services, and Education,
and Related Agencies Appropriations Act, 2012.............................................................. 4
H.R. 2055, Military Construction and Veterans Affairs, and Related Agencies
Appropriations Act, 2012 ....... 2
Client Characteristics .......................................................................................................... 2
Grantees and Clinics............................................................................................................ 3
Family Planning Training and Research Grants ........................................................................ 3
FY2013 Funding.............................................................................................................................. 3
Budget Request.......................................................................................................................... 3
Senate Activity........................................................................................................................... 4
House Activity................................................................................................................ 5
Continuing Resolutions ........... 5
Continuing Resolution............................................................................................................... 5
FY2011FY2012 Funding.............................................................................................................................. 6
Institute of Medicine Evaluation...................................................................................................... 8
AbortionThe Patient Protection and Affordable Care Act and Title X......................................................... 10
Abortion and Title X................................................................................................... 9................... 13
Teenage Pregnancy and Title X ..................................................................................................... 1115
Confidentiality for Minors and Title X .......................................................................................... 1116
Planned Parenthood and Title X .................................................................................................... 1217
Provider Conscience Rule.............................................................................................................. 1318
Overview ................................................................................................................................. 13
2008 Final Rule 18
2008 Rule....................................................................................................................... 14.......... 19
2011 Rule Rescission............................................................................................................... 1620
Legislation in the 112th Congress................................................................................................... 1722
Abortion Restrictions............................................................................................................... 1722
Elimination of Title X Funds ................................................................................................... 1822
Public Disclosure of Audits ..................................................................................................... 1823
Nondiscrimination on the Basis of Abortion Provision with Non-Title X Funds.................... 24
Limits on Means-Tested Welfare Spending............................................................................. 1924
Restrictions on Funding to Planned Parenthood...................................................................... 1924
Maternity Care Home Demonstration ..................................................................................... 2025
HIV/AIDS Provider Loan Repayment Program...................................................................... 25
Tables
Table 1. Title X Family Planning Program Appropriations ............................................................. 78
Appendixes
Appendix. Summary of Title X of the Public Health Service Act ................................................. 2126
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Title X (Public Health Service Act) Family Planning Program
Contacts
Author Contact Information........................................................................................................... 2227
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Title X (Public Health Service Act) Family Planning Program
Title X Program Administration and Covered
ServicesGrants
Administration
Title X is administered by the Office of Population Affairs’ (OPA’s) Office of Family Planning
(OFP), under the Office of the Assistant Secretary for Health in the Department of Health and
Human Services (DHHSHHS). Although the program is administered through OPA, funding for Title
X X
activities is provided through the Health Resources and Services Administration (HRSA) in
DHHS. HHS.
Authorization of appropriations expired at the end of FY1985, but the program has
continued to
be funded through appropriations bills for the Departments of Labor, Health and
Human Services,
and Education, and Related Agencies (Labor-HHS-Education).
OPA administers three types of project grants under Title X: family planning services;1 family
planning personnel training;2 and family planning service delivery improvement research grants.3
Family Planning Services Grants
Services
Ninety percent of Title X funds are used for clinical services.4 Grants for family planning services
fund family planning and related preventive health services,
such as natural family planning
methods; infertility services; services to adolescents; breast and
cervical cancer screening and
prevention; sexually transmitted disease (STD) and HIV prevention
education, counseling,
testing, and referral; preconception counseling; and counseling on
establishing a reproductive life
plan. Among the program’s FY2012 priorities is providing
one for providing preventive health services “in
accordance with nationally recognized standards of care.”45 The
services must be provided
“without coercion and with respect for the privacy, dignity, social, and
religious beliefs of the individuals being served.”5
Priority for the provision of services is to be given to persons from low-income families, who
may not be charged for care.6 Clients from families with income between 100% and 250% of the
federal poverty guideline (FPL) are charged on a sliding scale based on ability to pay. Clients
from families with income higher than 250% FPL are charged fees designed to recover the
reasonable cost of providing services.7
Title X clinics provide confidential screening, counseling, and referral for treatment. In this
regard, OPA has indicated that the program is committed to maintaining the integration of HIV1
individuals being served.”6
Title X clinics provide confidential screening, counseling, and referral for treatment. In this
regard, OPA has expressed a commitment to integrating HIV-prevention services in all family
planning clinics.7 OPA provides supplemental grants to help Title X projects implement the
1
Catalog of Federal Domestic Assistance (CFDA), Program number 93.217, http://www.cfda.gov.
CFDA, Program number 93.260.
3
CFDA, Program number 93.974.
4
HHS, Health Resources and Services Administration, Fiscal Year 2013 Justification of Estimates for Appropriations
Committees, p. 348, http://www.hrsa.gov/about/budget/budgetjustification2013.pdf.
5
U.S. Department of Health and Human Services (DHHSHHS), Office of Population Affairs, Fiscal Year 2012 Program
Priorities, http://www.hhs.gov/opa/title-x-family-planning/title-x-policies/program-priorities/. OPA also instructed
providers that clinical protocols should reflect recognized standards of care in “OPA Program Instruction Series, OPA
09-01: Clinical Services in Title X Family Planning Clinics – Consistency with Current Practice Recommendations,”
letter from Evelyn M. Kappeler, acting director, Office of Population Affairs, to Regional Health Administrators,
Regions I-X, April 28, 2009, http://www.hhs.gov/opa/title-x-family-planning/initiatives-and-resources/documents-andtools/opa-09-01.html.
5
CFDA, Program number 93.217. See also 42 C.F.R. §59.5.
6
42 C.F.R. §59.2 defines “low-income family” as having income at or below 100% of the Federal Poverty Guidelines
(FPL). The regulation states that “‘Low-income family’ also includes members of families whose annual family income
exceeds this amount, but who, as determined by the project director, are unable, for good reasons, to pay for family
planning services. For example, unemancipated minors who wish to receive services on a confidential basis must be
considered on the basis of their own resources.”
7
42 C.F.R. §59.5.
2
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6
CFDA, Program number 93.217. See also 42 C.F.R. §59.5.
7
HHS, Office of Population Affairs (OPA), HIV Prevention and Integration in Family Planning, http://www.hhs.gov/
opa/title-x-family-planning/initiatives-and-resources/hiv-prevention-and-integration/.
2
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Title X (Public Health Service Act) Family Planning Program
prevention services in all family planning clinics.8 OPA provides supplemental funding for grants
to help Title X projects implement the Centers for Disease Control and Prevention’s “Revised
Recommendations for HIV Testing of
Adults, Adolescents, and Pregnant Women in Health Care
Settings.”9
In 2010, Title X grantees reported that 8% of their clients were male.10 Common services that
family planning agencies offer to males include condom provision, STD counseling,
contraceptive counseling, and STD treatment and testing.11
Ninety percent of Title X funds are used for clinical services.12 In 2010, there were 89 Title X
family planning services grantees. Such grantees included 49 state, local, and territorial health
departments; and 40 nonprofit organizations, such as hospitals, community health centers, family
planning councils, Planned Parenthood affiliates, and universities.13 Title X grantees can provide
family planning services directly or they can delegate Title X monies to other agencies to provide
services. Although there are no matching requirements for grants, regulations specify that no
clinics may be fully supported by Title X funds.14 In 2010, Title X provided services through
4,389 clinics located in the 50 states, the District of Columbia, and the U.S. territories.15 Settings.”8
Title X services offered to males include condoms, education and counseling, STD testing and
treatment, HIV testing, and, in some cases, vasectomy services.9
Client Charges
Priority for services is given to persons from low-income families, who may not be charged for
care.10 Clients from families with income between 100% and 250% of the federal poverty
guideline (FPL) are charged on a sliding scale based on their ability to pay. Clients from families
with income higher than 250% FPL are charged fees designed to recover the reasonable cost of
providing services.11
Client Characteristics
In 2010, Title X-funded clinics served 5.225 million clients, primarily low-income women and
adolescents.16 69% of clients Of those clients, 8% were male,12 69% had incomes at or below the federal poverty level;
level, and 90% had incomes
at or below 200% of the federal poverty level.1713 For more than half
of clients, Title X clinics are
their “usual” or only continuing source of health care.1814 In 2010,
67% of Title X clients were
uninsured.19
8
DHHS, Office of Population Affairs (OPA), HIV Prevention and Integration in Family Planning,
http://www.hhs.gov/opa/title-x-family-planning/initiatives-and-resources/hiv-prevention-and-integration/.
9
uninsured.15
8
Centers for Disease Control and Prevention (CDC), “Revised Recommendations for HIV Testing of Adults,
Adolescents, and Pregnant Women in Health-Care Settings,” MMWR Recommendations and Reports, vol. 55, no. RR14 (September 26, 2006), pp. 1-17, http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5514a1.htm. See also CDC, HIV
Testing in Healthcare Settings, http://www.cdc.gov/hiv/topics/testing/healthcare/.
10
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, RTI International, Research Triangle Park, NC, September 2011, p. 89
HHS, OPA/Office of Family Planning, Male Services, http://www.hhs.gov/
opa/pdfs/fpar-2010-national-summary.pdf.
11
“Services for Men at Publicly Funded Family Planning Agencies, 1998-1999,” Perspectives on Sexual and
Reproductive Health, vol. 35, no. 5, September/October 2003. For more background see DHHS, OPA/Office of Family
Planning, Title X Male Involvement Prevention Services, http://www.hhs.gov/opa/title-x-family-planning/initiativesand-resources/male-services/ .
12
DHHS, HRSA, Fiscal Year 2012 Justification of Estimates for Appropriations Committees, p. 360,
http://www.hrsa.gov/about/budget/budgetjustification2012.pdf.
13
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, p. 7.
14
42 C.F.R. §59.7(c).
15opa/title-x-family-planning/initiatives-andresources/male-services/.
10
42 C.F.R. §59.2 defines “low-income family” as having income at or below 100% of the Federal Poverty Guidelines
(FPL). The regulation states that “‘Low-income family’ also includes members of families whose annual family income
exceeds this amount, but who, as determined by the project director, are unable, for good reasons, to pay for family
planning services. For example, unemancipated minors who wish to receive services on a confidential basis must be
considered on the basis of their own resources.”
11
42 C.F.R. §59.5.
12
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, p. 7. A searchable directory of Title X providers is at OPA Clearinghouse, Family Planning
Database, http://www.opaclearinghouse.org/search/.
16
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, pp. 8-9.
17RTI International, Research Triangle Park, NC, September 2011, pp. 8-9,
http://www.hhs.gov/opa/pdfs/fpar-2010-national-summary.pdf.
13
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, p. 22.
18
DHHS14
HHS, Health Resources and Services Administration, Fiscal Year 20122013 Justification of Estimates for
Appropriations Appropriations
Committees, p. 358348. See also Figure 2.3, “The large majority of women who obtain care at a family
(continued...)
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Title X (Public Health Service Act) Family Planning Program
Grants for family planning personnel training are to be used to train staff and “to improve
utilization and career development of paraprofessional and paramedical manpower in family
planning services, particularly in rural areas.”20 Staff are trained through 10 regional general
training programs and 3 national training programs.21 Family planning service delivery
improvement research grants are to be used to develop studies to improve the delivery of family
planning services. These research grants target projects that enhance effectiveness and efficiency
of the service delivery system.
More information on the Title X program, including regional contacts, can be found at
http://www.hhs.gov/opa/title-x-family-planning/.
Funding
FY2012 Funding
FY2012 Budget Request
The President’s FY2012 Budget requests $327.356 million for Title X, the same as the FY2011
Budget Request. It would be a 3% increase over the FY2010 level of $317.491 million, and a 9%
increase over the FY2011 level of $299.400 million. According to the HRSA Justification, the
proposed FY2012 funding level would support family planning services for 5.247 million persons
(24,000 more persons than the FY2010 target). The program’s FY2012 goals include preventing
at least 1,850 cases of infertility through Chlamydia screening, and preventing 1.008 million
unintended pregnancies.22
The FY2012 HRSA Justification states that family planning clinics will be encouraged to use
electronic health records and electronic practice management systems and that the program will
continue to try to increase competition for funds, targeting areas that currently lack access to
family planning services. The Justification states that the program will continue to try to improve
clinic efficiency in response to rising costs for pharmaceuticals, providers, and screening and
diagnostic technologies.23 The FY2012 target for cost per client served is $280.66, with the goal
of maintaining the cost per client below the medical care inflation rate. The Justification also
(...continued)
planning center consider it their usual source of care,” in Rachel Benson Gold, Adam Sonfield, and Cory L.
Richards, et al., Next Steps for America’s Family Planning Program: Leveraging the Potential of Medicaid and Title X
in an Evolving Health Care System, Guttmacher Institute, New York, 2009, p. 14, http://www.guttmacher.org/pubs/
NextSteps.pdf.
19
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, pp. 21, 23.
20
CFDA, Program number 93.260.
21
DHHS, Health Resources and Services Administration, Fiscal Year 2012 Justification of Estimates for
Appropriations Committees, p. 358.
22
DHHS, HRSA, Fiscal Year 2012 Justification of Estimates for Appropriations Committees, pp. 359-360.
23
DHHS, HRSA, Fiscal Year 2012 Justification of Estimates for Appropriations Committees, p. 360.
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Title X (Public Health Service Act) Family Planning Program
states that clinics will be encouraged to expand the availability of long-acting reversible
contraceptive methods.24
The FY2012 HRSA Justification describes plans to continue a contract with the Institute of
Medicine (IOM) to form a Standing Committee to advise the Title X program. The Standing
Committee will examine the role of family planning and reproductive health in health reform and
will address recommendations made in the independent IOM report, A Review of the HHS Family
Planning Program: Mission, Management, and Measurement of Results (2009). (The IOM report
is discussed further in the section “Institute of Medicine Evaluation.”)
S. 1599, Departments of Labor, Health and Human Services, and Education,
and Related Agencies Appropriations Act, 2012
On September 22, 2011, the Senate Appropriations Committee reported S. 1599, the Departments
of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act,
2012. It would provide $299.400 million for Title X, the same as the FY2011 level. The bill
would continue previous years’ requirements that Title X funds not be spent on abortions, that all
pregnancy counseling be nondirective, and that funds not be spent on “any activity (including the
publication or distribution of literature) that in any way tends to promote public support or
opposition to any legislative proposal or candidate for public office.” Grantees would also be
required to certify that they encourage “family participation” when minors decide to seek family
planning services, and to certify that they counsel minors on how to resist attempted coercion into
sexual activity. The bill also clarifies that family planning providers are not exempt from state
notification and reporting laws on child abuse, child molestation, sexual abuse, rape, or incest.25
In S.Rept. 112-84, the committee report accompanying S. 1599, the Senate Appropriations
Committee stated that it encourages HRSA to allocate resources to OPA from the Patient
Protection and Affordable Care Act (PPACA). These resources would be used for technical
assistance to help grantees prepare for PPACA implementation, “including the expansion of
Medicaid, technology upgrades and participating essential community providers.” The committee
also stated that it was aware of the 2009 Institute of Medicine review of the program. Finally, the
committee stated that it supports the OFP’s efforts to review and update Title X program guidance
and administrative directives.26
H.R. 3070, Departments of Labor, Health and Human Services, and Education,
and Related Agencies Appropriations Act, 2012
On September 29, 2011, the chair of the House Appropriations Labor-HHS-Education
Subcommittee introduced H.R. 3070, the Departments of Labor, Health and Human Services, and
Education, and Related Agencies Appropriations Act, 2012. It was referred to the House
Appropriations Committee.
24
DHHS, HRSA, Fiscal Year 2012 Justification of Estimates for Appropriations Committees, pp. 359-361.
S. 1599, as introduced, Title II, Health Resources and Services Administration, §209, and §210.
26
S.Rept. 112-84, p. 58.
25
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Title X (Public Health Service Act) Family Planning Program
H.R. 3070, as introduced, would prohibit any funds appropriated in the bill from being used to
carry out Title X of the Public Health Service Act. The bill also includes language from previous
years’ appropriations laws: Title X grantees would be required to certify that they encourage
“family participation” when minors decide to seek family planning services and that they counsel
minors on how to resist attempted coercion into sexual activity. The bill also clarifies that family
planning providers are not exempt from state notification and reporting laws on child abuse, child
molestation, sexual abuse, rape, or incest.27
H.R. 3070 would also prohibit the act’s funds from being made available “for any purpose” to the
Planned Parenthood Federation of America (PPFA) or any of its affiliates and clinics, unless they
certify that PPFA affiliates and clinics will not perform an abortion and will not provide any funds
to any other entity that performs an abortion. There are exceptions for rape, incest, and certain
physician-certified cases where the woman is “in danger of death unless an abortion is
performed.” The DHHS Secretary would be required to “seek repayment of any Federal
assistance received by Planned Parenthood Federation of America, Inc., or any affiliate or clinic
of Planned Parenthood Federation of America, Inc., if it violates the terms of the certification
required by this section.” H.R. 3070 was referred to the House Committee on Appropriations.
H.R. 2055, Military Construction and Veterans Affairs, and Related Agencies
Appropriations Act, 2012
On December 15, 2011, the conference report for H.R. 2055, the Military Construction and
Veterans Affairs, and Related Agencies Appropriations Act, 2012, was filed.28 It would provide
$296.838 million for Title X in FY2012, 1% less than the FY2011 level.29 The bill would
continue previous years’ requirements that Title X funds not be spent on abortions, that all
pregnancy counseling be nondirective, and that funds not be spent on “any activity (including the
publication or distribution of literature) that in any way tends to promote public support or
opposition to any legislative proposal or candidate for public office.” Grantees would also be
required to certify that they encourage “family participation” when minors decide to seek family
planning services and that they counsel minors on how to resist attempted coercion into sexual
activity. The bill also clarifies that family planning providers are not exempt from state
notification and reporting laws on child abuse, child molestation, sexual abuse, rape, or incest.30
Continuing Resolutions
Congress has provided temporary FY2012 funding under three continuing resolutions. P.L. 11233, the Continuing Appropriations Act, 2012, provided funding through October 4, 2011. P.L.
112-36, the Continuing Appropriations Act, 2012, provided funding through November 18, 2011.
P.L. 112-55, the Consolidated and Further Continuing Appropriations Act, 2012, provides funding
27
H.R. 3070, as introduced, §209, §210, and §222.
H.Rept. 112-331. On December 14, 2011, H.R. 3671, the Consolidated Appropriations Act, 2012, was introduced; it
contained the same provisions as H.R. 2055 regarding Title X.
29
H.R. 2055/H.Rept. 112-331, Division F, Departments of Labor, Health and Human Services, and Education, and
Related Agencies Appropriations Act, 2012, Title II would provide $297.400 million for the Title X program. Division
F, Title V, §527 would apply an across-the-board rescission of 0.189% to most Labor-HHS-Education items including
Title X.
30
H.R. 2055/H.Rept. 112-331, Division F, Title II, §209, and §210.
28
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Title X (Public Health Service Act) Family Planning Program
through December 16, 2011. For most federal programs, including Title X Family Planning, these
continuing resolutions continue funding under the same authority and conditions as for FY2011,
but with a 1.503% across-the-board reduction in the rate of operations.
FY2011 Funding
P.L. 112-10, the Department of Defense and Full-Year Continuing Appropriations Act, 2011,
provided Title X with $299.400 million in FY2011, 6% less than the FY2010 funding level.31 The
funds were subject to the same conditions as in FY2010.32 These conditions were laid out in P.L.
111-117, the Consolidated Appropriations Act, 2010. The conditions included that Title X funds
not be spent on abortions, that all pregnancy counseling be nondirective, and that funds not be
spent on “any activity (including the publication or distribution of literature) that in any way
tends to promote public support or opposition to any legislative proposal or candidate for public
office.”33 Grantees were also required to certify that they encourage “family participation” when
minors decide to seek family planning services, and to certify that they counsel minors on how to
resist attempted coercion into sexual activity.34 The appropriations law also clarified that family
planning providers are not exempt from state notification and reporting laws on child abuse, child
molestation, sexual abuse, rape, or incest.35
The Consolidated Appropriations Act, 2010, contained a clause, known as the Weldon
Amendment, stating that “None of the funds made available in this Act may be made available to
a Federal agency or program, or to a State or local government, if such agency, program, or
government subjects any institutional or individual health care entity to discrimination on the
basis that the health care entity does not provide, pay for, provide coverage of, or refer for
abortions.”36 Some have argued that the Weldon Amendment conflicts with regulations that
31
Sec. 1810 provides $300 million for Title X in FY2011. Sec. 1119 applies a 0.2% across-the-board rescission to most
non-defense items including Title X.
32
P.L. 112-10, §1104. Prior to P.L. 112-10, there were seven FY2011 continuing appropriations laws that continued
funding for Title X at the FY2010 rate of operations and under the same conditions as in FY2010. P.L. 111-242
continued funding through December 3, 2010; P.L. 111-290 continued funding through December 18, 2010; P.L. 111317 continued funding through December 21, 2010; P.L. 111-322 continued funding through March 4, 2011; P.L. 1124 continued funding through March 18, 2011; P.L. 112-6 continued funding through April 8, 2011; and P.L. 112-8
continued funding through April 15, 2011.
33
P.L. 111-117, Division D, Departments of Labor, Health and Human Services, and Education, and Related Agencies
Appropriations Act, 2010, Title II, Department of Health and Human Services, Health Resources and Services
Administration, 123 Stat. 3239-3240.
34
P.L. 111-117, Division D, Departments of Labor, Health and Human Services, and Education, and Related Agencies
Appropriations Act, 2010, Title II, Department of Health and Human Services, General Provisions, §209, 123 Stat.
3256.
35
P.L. 111-117, Division D, Departments of Labor, Health and Human Services, and Education, and Related Agencies
Appropriations Act, 2010, Title II, Department of Health and Human Services, General Provisions, §210, 123 Stat.
3256-3257.
36
P.L. 111-117, Division D, Departments of Labor, Health and Human Services, and Education, and Related Agencies
Appropriations Act, 2009, Title V, General Provisions, §508(d), 123 Stat. 3280. The Weldon Amendment was
originally adopted as part of the FY2005 Labor-HHS-Education appropriations law, and has been attached to each
subsequent Labor-HHS-Education appropriations law: P.L. 108-447, Division F, §508(d), 118 Stat. 3163 (FY2005);
P.L. 109-149, §508(d), 119 Stat. 2879 (FY2006). Under P.L. 110-5, §2, 121 Stat. 8, FY2007 appropriations were
subject to the same conditions as during FY2006. P.L. 110-161, Division G, §508(d), 121 Stat. 1844 (FY2008). P.L.
111-8, Division F, §508(d), 123 Stat. 803 (FY2009). The Weldon Amendment also appears in proposed FY2012
Labor-HHS-Education appropriations bills: H.R. 3070 at §507(d) and in S. 1599 at §508(d).
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require Title X family planning services projects to give pregnant women the opportunity to
receive information, counseling, and referral upon request for several options including
“pregnancy termination.”37 In the February 23, 2011, Federal Register, DHHS stated of potential
conflicts, “The approach of a case by case investigation and, if necessary, enforcement will best
enable the Department to deal with any perceived conflicts within concrete situations.”38 This
issue is discussed further in “Provider Conscience Rule” below.
Table 1. Title X Family Planning Program Appropriations
(in millions)
FY
Appropriation
FY
Appropriation
FY
Appropriation
1971
$6.0
1985
$142.5
1999
$215.0
1972
$61.8
1986
$136.4
2000
$238.9
1973
$100.6
1987
$142.5
2001
$253.9
1974
$100.6
1988
$139.7
2002
$265.0
1975
$100.6
1989
$138.3
2003
$273.4
1976
$100.6
1990
$139.1
2004
$278.3
1977
$113.0
1991
$144.3
2005
$286.0
1978
$135.0
1992
$149.6
2006
$282.9
1979
$135.0
1993
$173.4
2007
$283.1
1980
$162.0
1994
$180.9
2008
$300.0
1981
$161.7
1995
$193.3
2009
$307.5
1982
$124.2
1996
$192.6
2010
$317.5
1983
$124.1
1997
$198.5
2011
$299.4
1984
$140.0
1998
$203.5
2012
a
Source: FY1971-FY2005: Department of Health and Human Services, Office of Population Affairs, Funding
History, http://www.hhs.gov/opa/title-x-family-planning/title-x-policies/title-x-funding-history/; FY2006: Senate
Appropriations Committee, S.Rept. 109-287 , p. 325; FY2007: Consolidated Appropriations Act, 2008 Committee
Print of the House Committee on Appropriations on H.R. 2764/P.L. 110-161, p. 1793, http://www.gpoaccess.gov/
congress/house/appropriations/08conappro.html; FY2008-FY2009: “Explanatory Statement Submitted by Mr.
Obey, Chairman of the House Committee on Appropriations, Regarding H.R. 1105, Omnibus Appropriations
Act, 2009,” Congressional Record, daily edition, vol. 155, no. 31 (February 23, 2009), p. H2378. FY2010: P.L. 111117, 123 Stat. 3239. FY2011: P.L. 112-10, §1810 and §1119.
37
42 C.F.R. 59.5(a)(5). Examples of this argument appear in “Weldon Amendment,” Congressional Record, daily
edition, vol. 151, no. 51 (April 25, 2005), p. S4222; and “Federal Refusal Clause,” Congressional Record, daily
edition, vol. 151, no. 52 (April 26, 2005), p. S425. The National Family Planning and Reproductive Health Association
(NFPRHA), many of whose members provide Title X services, filed a lawsuit challenging the Weldon Amendment in
the U.S. District Court for the District of Columbia. The court found that “While Weldon may not provide the level of
guidance that NFPRHA or its members would prefer, may create a conflict with pre-existing agency regulations, and
may impose conditions that NFPRHA members find unacceptable, none of these reasons provides a sufficient basis for
the court to invalidate an act of Congress in its entirety.” Upon appeal, the U.S. Court of Appeals for the District of
Columbia Circuit found that the plaintiff lacked the standing to challenge the Weldon Amendment. See National
Family Planning and Reproductive Health Association, Inc., v. Alberto Gonzales, et al., 468 F.3d 826 (D.C. Cir. 2006),
and 391 F. Supp. 2d 200, 209 (D.D.C. 2005).
38
DHHS, “Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws,” 76 Federal
Register 9973, February 23, 2010.
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a.
The FY2012 funding level has not yet been finalized. The President’s FY2012 Budget requested $327.4
million. S. 1599 would provide $299.4 million for FY2012. H.R. 3070 would provide no funding for Title X in
FY2012. The conference report for H.R. 2055 would provide $296.8 million for Title X in FY2012.
Institute of Medicine Evaluation
At the request of OFP, the Institute of Medicine (IOM) of the National Academy of Sciences
independently evaluated the Title X program and made recommendations in A Review of the HHS
Family Planning Program: Mission, Management, and Measurement of Results (2009).39
IOM found that family planning—“helping people have children when they want to and avoid
conception when they do not—is a critical social and public health goal,” and that the “federal
government has a responsibility to support the attainment of this goal.” IOM noted, for example,
that family planning can prevent unintended and high-risk pregnancies, thereby reducing fetal,
infant, and maternal mortality and morbidity. IOM also stated that the appropriate use of
contraception can reduce abortion rates and cited “ample evidence that family planning services
are cost-effective.”40
IOM recommended that OFP develop and implement a multiyear evidence-based strategic plan.41
IOM also made specific recommendations to improve program management and administration.
For example, IOM recommended that program funding be increased so that statutory
responsibilities can be met, that methods of allocating funds be examined and improved, that drug
purchasing sources be consolidated, that the administrative burden on clinics be reduced, that a
single method be adopted for determining eligibility criteria for services, that transparency be
increased, that workforce needs be assessed, and that program guidelines be evidence-based.42
Finally, IOM made recommendations to improve program evaluation. For example, IOM
recommended that OFP collect additional data on client and system characteristics, the process
and quality of care, and program outcomes. IOM recommended that OFP fund and use a
comprehensive framework for evaluating Title X, that OFP obtain scientific input on its
evaluation efforts, and that evaluation findings be communicated to grantees, clinics, and others.43
In response to the IOM report, DHHS has a contract with IOM to form a Standing Committee to
advise the Title X program. The Standing Committee is expected to help develop a
comprehensive strategic plan and will conduct additional studies on program infrastructure and
goals.44 According to the FY2012 HRSA Justification, the Standing Committee will advise the
39
Institute of Medicine (IOM), Committee on a Comprehensive Review of the HHS Office of Family Planning Title X
Program, A Review of the HHS Family Planning Program: Mission, Management, and Measurement of Results, ed.
Adrienne Stith Butler and Ellen Wright Clayton (Washington, DC: The National Academies Press, 2009),
http://www.nap.edu/catalog.php?record_id=12585.
40
IOM, A Review of the HHS Family Planning Program: Mission, Management, and Measurement of Results, pp. 4,
70.
41
IOM, A Review of the HHS Family Planning Program: Mission, Management, and Measurement of Results, p. 98.
42
IOM, A Review of the HHS Family Planning Program: Mission, Management, and Measurement of Results, pp. 140143.
43
IOM, A Review of the HHS Family Planning Program: Mission, Management, and Measurement of Results, pp. 166170.
44
DHHS, HRSA, Fiscal Year 2012 Justification of Estimates for Appropriations Committees, p. 358.
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Title X (Public Health Service Act) Family Planning Program
program on the following areas related to report recommendations: strategic planning, workforce
planning, improving data collection on program performance, and improving communication and
transparency.45
The President’s FY2011 Budget requested a $10 million (3%) increase over the FY2010 funding
level for Title X. The HRSA Justification stated that at least 90% of this increase would be used
to implement IOM’s recommendations, “specifically supporting the infrastructure that is currently
needed to meet the demand for care, including the ability to recruit and retain qualified staff, and
to better meet the needs for family planning services among low-income individuals, through
addressing the increasing cost of providing family planning services to low-income individuals,
including uninsured and under-insured.”46
Abortion and Title X
The law prohibits the use of Title X funds in programs where abortion is a method of family
planning.47 On July 3, 2000, OPA released a final rule with respect to abortion services in family
planning projects.48 The rule updated and revised regulations that had been in effect since 1988.49
The major revision revoked the “gag rule,” which restricted family planning grantees from
providing abortion-related information. The regulation at 42 C.F.R. Section 59.5 had required,
and continues to require, that abortion not be provided as a method of family planning. The July
3, 2000 rule amended the section to add the requirement that a project must give pregnant women
the opportunity to receive information and counseling on each of the following options: prenatal
care and delivery; infant care, foster care, or adoption; and pregnancy termination. If the woman
requests such information and counseling, the project must give “neutral, factual information and
nondirective counseling on each of the options, and referral upon request, except with respect to
any option(s) about which the pregnant woman indicates she does not wish to receive such
information and counseling.”50
According to OPA, family planning projects that receive Title X funds are closely monitored to
ensure that federal funds are used appropriately and that funds are not used for prohibited
activities such as abortion. The prohibition on abortion does not apply to all the activities of a
Title X grantee, but only to activities that are part of the Title X project. The grantee’s abortion
activities must be “separate and distinct” from the Title X project activities.51 Safeguards to
maintain this separation include (1) careful review of grant applications to ensure that the
45
DHHS, HRSA, Fiscal Year 2012 Justification of Estimates for Appropriations Committees, p. 360.
DHHS, HRSA, Fiscal Year 2011 Justification of Estimates for Appropriations Committees, p. 322
47
42 U.S.C. §300a-6. In addition, language in annual Departments of Labor, Health and Human Services, and
Education, and Related Agencies Appropriations bills have also prohibited the use of Title X funds for abortions (in
FY2010, this rider appeared in P.L. 111-117, 123 Stat. 3239). For background on abortion funding restrictions in
general, see CRS Report RL33467, Abortion: Judicial History and Legislative Response, by Jon O. Shimabukuro.
48
DHHS, OPA, “Standards of Compliance for Abortion-Related Services in Family Planning Services Projects,” 65
Federal Register 41270–41280, July 3, 2000, and DHHS, OPA, “Provision of Abortion-Related Services in Family
Planning Services Projects, “ 65 Federal Register 41281-41282, July 3, 2000.
49
42 C.F.R. Part 59, “Grants for family planning services.”
50
On December 19, 2008, DHHS published a provider conscience rule which, according to DHHS, is inconsistent with
the requirement that Title X grantees provide clients with abortion referrals upon request. 73 Federal Register 78087.
This is discussed below in “Provider Conscience Rule.”
51
65 Federal Register 41281-41282, July 3, 2000.
46
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Title X (Public Health Service Act) Family Planning Program
applicant understands the requirements and has the capacity to comply with all requirements; (2)
independent financial audits to examine whether there is a system to account for program-funded
activities and non-allowable program activities; (3) yearly comprehensive reviews of the grantees’
financial status and budget report; and (4) periodic and comprehensive program reviews and site
visits by OPA regional offices.
It is unclear exactly how many Title X clinics also provide abortions through their non-Title X
activities. In 2004, following appropriations conference report directions, DHHS surveyed its
Title X grantees on whether their clinic sites also provided abortions with non-federal funds.52
Grantees were informed that responses were voluntary and “without consequence, or threat of
consequence, to non-responsiveness.” The survey did not request any identifying information.
DHHS mailed surveys to 86 grantees and received 46 responses. Of these, 9 indicated that at least
one of their clinic sites (17 clinic sites in all) also provided abortions with non-federal funds, and
34 indicated that none of their clinic sites provided abortions with non-federal funds; 3 responses
had no numerical data or said the information was unknown.
Title X supporters argue that family planning reduces unintended pregnancies, thereby reducing
abortion.53 DHHS estimates that Title X family planning services helped avert 993,614
unintended pregnancies in FY2009.54 The Guttmacher Institute estimates that clinics receiving
Title X funds helped avert 406,200 abortions in 2008.55
On the other hand, Title X critics argue that federal funds should be withheld from any
organization that performs or promotes abortions, such as the Planned Parenthood Federation of
America. These critics argue that federal funding for non-abortion activities frees up Planned
Parenthood’s other resources for its abortion activities.56 Some critics also argue that if a family
planning program is operated by an organization that also performs abortions, the implicit
assumption and the message to clients is that abortion is a method of family planning.57
52
DHHS, Report to Congress Regarding the Number of Family Planning Sites Funded Under Title X of the Public
Health Service Act That Also Provide Abortions with Non-Federal Funds, 2004. The DHHS was directed to conduct
the survey by FY2004 appropriations conference report H.Rept. 108-401, pp. 800-801.
53
Examples of this argument can be found in Rachel Benson Gold, Adam Sonfield, and Cory L. Richards, et al., Next
Steps for America’s Family Planning Program: Leveraging the Potential of Medicaid and Title X in an Evolving
Health Care System, Guttmacher Institute, New York, 2009, pp. 16-17, http://www.guttmacher.org/pubs/
NextSteps.pdf, and in U.S. Congress, Senate Committee on Appropriations, Subcommittee on Labor, Health and
Human Services, Education, and Related Agencies, Threat to Title X and Other Women’s Health Services, 104th Cong.,
1st sess., August 10, 1995, S.Hrg. 104-416 (Washington: GPO, 1996), pp. 16-21.
54
DHHS, HRSA, Fiscal Year 2012 Justification of Estimates for Appropriations Committees, p. 361.
55
Jennifer J. Frost, Stanley K. Henshaw, and Adam Sonfeld, Contraceptive needs and services: national and state
data, 2008 update, Guttmacher Institute, New York, NY, 2010, p. 16, http://www.guttmacher.org/pubs/win/
contraceptive-needs-2008.pdf.
56
Examples of this argument can be found in House debate, Congressional Record, daily edition, vol. 154, no. 112
(July 9, 2008), pp. H6320-H6326. In 2009, 332,278 abortion procedures were performed by Planned Parenthood
affiliates, comprising three percent of Planned Parenthood services that year, according to the Planned Parenthood
Federation of America, Planned Parenthood Services Fact Sheet, October 2011, p. 2,
http://www.plannedparenthood.org/files/PPFA/PP_Services.pdf.
57
An example of these arguments can be found in U.S. Congress, Senate Committee on Appropriations, Subcommittee
on Labor, Health and Human Services, Education, and Related Agencies, Threat to Title X and Other Women’s Health
Services, pp. 22-35.
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Teenage Pregnancy and Title X
In 2010, 22% of Title X clients were aged 19 or younger.58 Critics argue that by funding Title X,
the federal government is implicitly sanctioning nonmarital sexual activity among teens. These
critics argue that a reduced teenage pregnancy rate could be achieved if family planning programs
emphasized efforts to convince teens to delay sexual activity, rather than efforts to decrease the
percentage of sexually active teens who become pregnant.59 (See CRS Report RS20301, Teenage
Pregnancy Prevention: Statistics and Programs, by Carmen Solomon-Fears, for a broader
discussion of teen pregnancy.)
The program’s supporters, on the other hand, argue that the Title X program should be expanded
to serve more people in order to reduce the rate of unintended pregnancies. According to DHHS,
in 2007, Title X family planning services helped avert an estimated 242,480 unintended teen
pregnancies.60 Supporters of expanding family planning services argue that the United States has
a higher teen pregnancy rate than some countries (such as Sweden) where a similar percentage of
teens are sexually active, in part because U.S. teens use contraception less consistently.61
Confidentiality for Minors and Title X
Confidentiality is required for personal information about Title X services provided to
individuals.62 Regarding services to minors, Title X project guidelines state:
Adolescents must be assured that the counseling sessions are confidential and, if follow-up is
necessary, every attempt will be made to assure the privacy of the individual. However,
counselors should encourage family participation in the decision of minors to seek family
planning services and provide counseling to minors on resisting attempts to coerce minors
into engaging in sexual activities. Title X projects may not require written consent of parents
or guardians for the provision of services to minors. Nor can the project notify parents or
58
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, p. 9.
59
An example of these arguments can be found in U.S. Congress, Senate Committee on Appropriations, Subcommittee
on Labor, Health and Human Services, Education, and Related Agencies, Threat to Title X and Other Women’s Health
Services, pp. 22-35.
60
Email correspondence between the author and Maurice Huguley, Office of the Assistant Secretary for Legislation,
U.S. Department of Health and Human Services, January 27, 2009. See also the discussion of publicly funded family
planning services in “Programs to Reduce Unintended Pregnancy,” in The Institute of Medicine, The Best Intentions:
Unintended Pregnancy and the Well-Being of Children and Families (Washington: National Academy Press, 1995), p.
220, http://www.nap.edu/catalog.php?record_id=4903.
61
An example of these arguments can be found in U.S. Congress, Senate Committee on Appropriations, Subcommittee
on Labor, Health and Human Services, Education, and Related Agencies, Threat to Title X and Other Women’s Health
Services, pp. 16-21. See also Jacqueline E. Darroch, et al., “Differences in Teenage Pregnancy Rates Among Five
Developed Countries: The Roles of Sexual Activity and Contraceptive Use,” Family Planning Perspectives, vol. 33,
no. 6 (November/December 2001), pp. 244-251.
62
42 C.F.R. §59.11. Also, several court cases have interpreted Title X statute as supporting confidentiality for minors;
see Glenn A. Guarino, “Provision of family planning services under Title X of Public Health Service Act (42 U.S.C.A.
§300-300a-8) and implementing regulations,” American Law Reports Federal, 1985, 71 A.L.R. Fed. 961.
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guardians before or after a minor has requested and received Title X family planning
services.63
Although minors are to receive confidential services, Title X providers are not exempt from state
notification and reporting laws on child abuse, child molestation, sexual abuse, rape, or incest.64
Title X regulations indicate that “unemancipated minors who wish to receive services on a
confidential basis must be considered on the basis of their own resources.”65 The project
guidelines instruct that “Eligibility for discounts for minors who receive confidential services
must be based on the income of the minor.”66
Supporters of confidentiality argue that parental notification or parental consent requirements
would lead some sexually active adolescents to delay or forgo family planning services, thereby
increasing their risk of pregnancy or sexually transmitted diseases.67
Critics argue that confidentiality requirements can interfere with parents’ right to know of and to
guide their children’s health care. Some critics also disagree with discounts for minors without
regard to parents’ income, because the Title X program was intended to serve “low-income
families.”68
Planned Parenthood and Title X
The Planned Parenthood Federation of America (PPFA) operates through a national office and 82
affiliates, which operate nearly 800 local health centers.69 Affiliates participating in Title X can
63
DHHS, Office of Family Planning, Program Guidelines For Project Grants For Family Planning Services, January
2001, p. 25, http://www.hhs.gov/opa/title-x-family-planning/title-x-policies/program-guidelines/. For an overview of
Title X efforts to encourage family participation, see RTI International, An Assessment of Parent Involvement
Strategies in Programs Serving Adolescents: Final Report, 2007, http://www.hhs.gov/opa/pdfs/parent-involvementfinal-report.pdf. The report found that parent involvement is associated with several positive outcomes, such as delayed
sexual initiation and lower rates of pregnancy and sexually transmitted infections.
64
P.L. 111-117, Division D, Departments of Labor, Health and Human Services, and Education, and Related Agencies
Appropriations Act, 2010, Title II, Department of Health and Human Services, General Provisions, §210, 123 Stat.
3256-3257. OPA Program Instruction Series, OPA 11-01: Title X Grantee Compliance with Grant Requirements and
Applicable Federal and State Law, including State Reporting Laws, Letter from Marilyn J. Keefe, Deputy Assistant
Secretary for Population Affairs, to Regional Health Administrators, Regions I-X; Title X Grantees, March 1, 2011,
http://www.hhs.gov/opa/pdf/opa-11-01-program-instruction-re-compliance.pdf.
65
42 C.F.R. §59.2.
66
DHHS, Office of Family Planning, Program Guidelines For Project Grants For Family Planning Services, January
2001, p. 8.
67
An example of this argument is in Rachel K. Jones, Alison Purcell, and Susheela Singh, et al., “Adolescents’ Reports
of Parental Knowledge of Adolescents’ Use of Sexual Health Services and Their Reactions to Mandated Parental
Notification for Prescription Contraception ,” JAMA, vol. 293, no. 3 (January 19, 2005), pp. 340-348. See also the staff
quotations in RTI International, An Assessment of Parent Involvement Strategies in Programs Serving Adolescents:
Final Report, 2007, p. 5-10.
68
Examples of these arguments appear in Congressional Record, daily edition, vol. 142 (July 11, 1996), pp. H7348-H
7349, and U.S. Congress, Senate Committee on Appropriations, Subcommittee on Labor, Health and Human Services,
Education, and Related Agencies, Threat to Title X and Other Women’s Health Services, 104th Cong., 1st sess., August
10, 1995, S.Hrg. 104-416 (Washington: GPO, 1996), pp. 22-23. See also the discussion in RTI International, An
Assessment of Parent Involvement Strategies in Programs Serving Adolescents: Final Report, 2007, pp. 5-9.
69
Planned Parenthood Federation of America, Planned Parenthood at a Glance, http://www.plannedparenthood.org/
(continued...)
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receive funds directly from DHHS or indirectly from other Title X grantees, such as their state or
local health departments. PPFA and its affiliates receive about $66 million in annual Title X
funding, according to the PPFA Washington Office.70
In May 2010, the Government Accountability Office (GAO) released a report with data on the
obligations and expenditures of federal funds for several nonprofit organizations, including PPFA
and its affiliates.71
According to the GAO report, in FY2009, DHHS reported obligating to Planned Parenthood and
its affiliates $18.2 million through the Title X Family Planning Services program and $0.3 million
through Title X Family Planning Service Delivery Improvement Research Grants.72 These figures
reflect funds that DHHS provided directly to these organizations. They do not include Title X
funds that reached Planned Parenthood or its affiliates indirectly through subgrants or that passed
through from state agencies or other organizations.
The GAO report also showed Planned Parenthood’s expenditures of Title X funds. These
expenditures were identified through audit reports that Planned Parenthood and its affiliates
submitted to comply with Office of Management and Budget (OMB) audit requirements.73
Expenditures include federal funds provided directly or indirectly to these organizations. The
most recent expenditure data was from FY2008, when Planned Parenthood and its affiliates
reported spending $53 million from the Title X Family Planning Services program.74
Provider Conscience Rule
Overview
Several already existing federal restrictions protect health care providers from being coerced to
provide certain services to which they object. These statutory restrictions prohibit recipients of
certain federal funds from discriminating against such providers. These restrictions include the
Church Amendment (which protects those with religious or moral objections to abortion and
sterilization), Public Health Service (PHS) Act Section 245 (which protects certain individuals,
medical schools, and training programs that will not provide, perform, make arrangements for, or
(...continued)
about-us/who-we-are/planned-parenthood-glance-5552.htm.
70
E-mail from Ellen Weissfeld, Public Policy Coordinator, Planned Parenthood Federation of America, April 12,
2011.
71
U.S. Government Accountability Office (GAO), Federal Funds: Fiscal Years 2002-2009 Obligations,
Disbursements, and Expenditures for Selected Organizations Involved in Health-Related Activities, GAO-10-533R,
May 28, 2010, http://www.gao.gov/products/GAO-10-533R.
72
GAO, Federal Funds: Fiscal Years 2002-2009 Obligations, Disbursements, and Expenditures for Selected
Organizations Involved in Health-Related Activities, p. 16.
73
Organizations with annual expenditures of federal funds of $500,000 or more are required to have an audit. The
GAO report includes expenditure data from 85 Planned Parenthood affiliates. GAO, Federal Funds: Fiscal Years
2002-2009 Obligations, Disbursements, and Expenditures for Selected Organizations Involved in Health-Related
Activities, p. 10 footnote b, p. 22 footnote 1.
74
GAO, Federal Funds: Fiscal Years 2002-2009 Obligations, Disbursements, and Expenditures for Selected
Organizations Involved in Health-Related Activities, p. 25.
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refer for abortions or abortion training), and the Weldon Amendment (which protects certain
entities that will not provide, pay for, provide coverage for, or refer for abortions).75
In the December 19, 2008, Federal Register, DHHS published a final rule, often called the
provider conscience rule, that was intended to increase awareness of these existing restrictions.76
Some critics argued that the rule would limit patients’ access to contraception, and that it
conflicted with the Title X requirement that grantees provide pregnant women, upon request,
nondirective counseling and referrals on several options including abortion.
The rule became effective January 20, 2009. In the March 10, 2009, Federal Register, DHHS
proposed to rescind the provider conscience rule and invited public comments.77
In the February 23, 2011, Federal Register, DHHS rescinded most of the rule, except for a
provision that the DHHS Office for Civil Rights will handle complaints based on federal health
care provider conscience protection restrictions. DHHS stated that parts of the 2008 rule were
“unclear and potentially overbroad in scope,” and noted that the rescission “does not alter or
affect the federal statutory health care provider conscience protections” that already exist.78
2008 Final Rule
The 2008 provider conscience rule stated that entities carrying out DHHS health service programs
shall not require individuals “to perform or assist in the performance of any part of a health
service program or research activity funded by the Department if such service or activity would
be contrary to his religious beliefs or moral convictions.”79 The rule defined assist in the
performance as participating in any activity with a “reasonable connection” to the objectionable
procedure or health service, including “counseling, referral, training, and other arrangements” for
the procedure or health service.80
The rule prohibited recipients of DHHS appropriations act funds from subjecting institutions or
individuals to discrimination because they did not refer patients for abortions.81 Also, the rule
75
More background about these and other federal provider conscience provisions is in CRS Report R40722, Health
Care Providers’ Religious Objections to Medical Treatment: Legal Issues Related to Religious Discrimination in
Employment and Conscience Clause Provisions, by Cynthia Brougher and Edward C. Liu, and CRS Report RL34703,
The History and Effect of Abortion Conscience Clause Laws, by Jon O. Shimabukuro. See also DHHS, Office for Civil
Rights (OCR), Overview of Federal Statutory Health Care Provider Conscience Protections, http://www.hhs.gov/ocr/
civilrights/faq/providerconsciencefaq.html, and Federal Health Care Conscience Protection Statutes,
http://www.hhs.gov/ocr/civilrights/understanding/ConscienceProtect/index.html
76
U.S. Department of Health and Human Services, “Ensuring Department of Health and Human Services Funds Do
Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law,” 73 Federal Register
78072–78101, December 19, 2008, http://federalregister.gov/a/E8-30134.
77
DHHS, “Rescission of the Regulation Entitled ‘Ensuring That Department of Health and Human Services Funds Do
Not Support Coercive or Discriminatory Support Coercive or Discriminatory Federal Law’; Proposal,” 74 Federal
Register 10207-10211, March 10, 2009, http://federalregister.gov/a/E9-5067. Many of the public comments are posted
at http://www.regulations.gov/#!docketDetail;D=HHS-OPHS-2009-0001.
78
DHHS, “Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws,” 76 Federal
Register 9969, February 23, 2011, http://federalregister.gov/a/2011-3993.
79
73 Federal Register 79097, 79098, §88.3(g)(1), §88.4(d)(1).
80
73 Federal Register 78097, §88.2.
81
73 Federal Register78097, 78098, §88.3(c), §88.4(b)(2).
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prohibited recipients of grants under the Public Health Service Act from discriminating against
physicians or other health care professionals because they refused to assist in the performance of
sterilization or abortion based on religious beliefs or moral convictions.82
Before publishing the final rule, DHHS solicited public comments.83 Some commenters argued
that the rule was inconsistent with the Title X regulatory requirement that grantees provide
pregnant women, upon request, nondirective counseling and referrals on several options including
abortion.84 The Title X requirement states that if the woman requests such information and
counseling, the project must give “neutral, factual information and nondirective counseling on
each of the options, and referral upon request, except with respect to any option(s) about which
the pregnant woman indicates she does not wish to receive such information and counseling.”85
DHHS responded that the provider conscience requirement did indeed conflict with the Title X
requirement, so that in certain situations, OPA would not enforce the Title X referral regulation:
With regards to the Title X program, Commenters are correct that the current regulatory
requirement that grantees must provide counseling and referrals for abortion upon request
(42 C.F.R. 59.5(a)(5)) is inconsistent with the health care provider conscience protection
statutory provisions and this regulation. The Office of Population Affairs, which administers
the Title X program, is aware of this conflict with the statutory requirements and, as such,
would not enforce this Title X regulatory requirement on objecting grantees or applicants.86
The final rule did not define the term abortion. Some commenters argued that by not defining
abortion as excluding contraception, the rule could jeopardize Title X programs. DHHS
responded that “questions over the nature of abortion and the ending of a life are highly
controversial and strongly debated,” and so declined to issue a formal definition. DHHS added
that “nothing in this rule alters the obligation of federal Title X programs to deliver contraceptive
services to clients in need as authorized by law and regulation.”87
Some commenters argued that the rule would make it difficult for Title X clinics to screen job
applicants to ensure that staff were willing to provide contraceptive services. DHHS responded
that job applicants would be unlikely to apply for, or be best qualified for, jobs where they object
to the majority of the work. DHHS explained further:
To the extent a health care employer’s adverse decision is based on an applicant’s inability to
perform the essential functions of a job, the decision would not typically constitute
discrimination under the regulation even if the applicant had expressed an unwillingness to
perform those functions on conscience grounds. However, an adverse decision predicated on
an applicant’s alleged ‘‘inability’’ could constitute unlawful discrimination if the employer’s
82
73 Federal Register78097, 78098, §88.3(f)(1), §88.4(c)(1).
Comments may be viewed at http://www.regulations.gov/#!docketDetail;D=HHS-OS-2008-0011. (Check the “Public
Submissions” box).
84
Examples of such comments include Letter from Sharon L. Camp, President and CEO, Guttmacher Institute, to
DHHS, September 24, 2008, http://www.guttmacher.org/media/resources/2008/09/24/GuttmacherInstitute-reConscienceRegulation.pdf, and Letter from Caroline Fredrickson, Director, Washington Legislative Office, American
Civil Liberties Union (ACLU), Louise Melling, Director, Reproductive Freedom Project, ACLU, and Vania Leveille,
Washington Legislative Office, ACLU, et al. to DHHS, September 25, 2008, http://www.aclu.org/images/
asset_upload_file467_36942.pdf.
85
42 C.F.R. §59(a)(5).
86
73 Federal Register 78087.
87
73 Federal Register 78077.
83
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stated reasons are pretextual; for example, if the employer is using the definition of essential
functions as a pretext for excluding applicants with certain religious beliefs or moral
convictions.88
In response to comments that the rule would restrict patients’ access to contraception, DHHS
responded that “we have found no evidence that these regulations will create new barriers in
accessing contraception unless those contraceptives are currently delivered over the religious or
moral objections of the provider.”89
2011 Rule Rescission
In the February 23, 2011, Federal Register, DHHS rescinded most of the 2008 final rule, except
for a provision that the DHHS Office for Civil Rights (OCR) will coordinate the handling of
complaints based on federal provider conscience statutory restrictions.90 DHHS stated that “No
regulations were required or necessary for the conscience protections contained in the Church
Amendments, PHS Act, sec. 245, and the Weldon Amendment to take effect,” and that the rule
rescission does not affect existing provider conscience statutory restrictions.91
As discussed above in “2008 Final Rule,” some commenters had raised concerns about possible
conflicts between the 2008 Final Rule and requirements governing certain DHHS programs,
including Title X. In the 2011 rule rescission, DHHS stated that such conflicts would be
addressed on a case by case basis:
Health care entities must continue to comply with the long-established requirements of the
statutes above governing Departmental programs. These statutes strike a careful balance
between the rights of patients to access needed health care, and the conscience rights of
health care providers. The conscience laws and the other federal statutes have operated side
by side often for many decades. As repeals by implication are disfavored and laws are meant
to be read in harmony, the Department fully intends to continue to enforce all the laws it has
been charged with administering. The Department is partially rescinding the 2008 final rule
in an attempt to address ambiguities that may have been caused in this area. The approach of
a case by case investigation and, if necessary, enforcement will best enable the Department
to deal with any perceived conflicts within concrete situations.92
As discussed in “2008 Final Rule,” some commenters had raised concerns that the 2008 rule did
not define “abortion” as excluding contraception. In rescinding the rule, DHHS stated that “The
provision of contraceptive services has never been defined as abortion in federal statute. There is
88
73 Federal Register 78084-78085.
73 Federal Register 78071-78072.
90
DHHS explained that the enforcement of statutory provider conscience protections would include “normal program
compliance mechanisms.” For example, DHHS is expected to help violating entities come into compliance, and if
entities still fail to comply, DHHS “will consider all legal options,” such as the termination of funds and the return of
funds paid out in violation of the conscience statutes. DHHS also stated that it is starting an initiative to increase
awareness of federal provider conscience protections among grantees and health care providers. OCR includes provider
conscience information in its education and outreach efforts and on its website, and DHHS is amending its grant
documents to clarify that recipients must comply with federal conscience protection laws. DHHS, “Regulation for the
Enforcement of Federal Health Care Provider Conscience Protection Laws,” 76 Federal Register 9972, February 23,
2010.
91
76 Federal Register 9969, 9970.
92
76 Federal Register 9973.
89
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no indication that the federal health care provider conscience statutes intended that the term
‘abortion’ included contraception.”93
As discussed in “2008 Final Rule,” some commenters had raised concerns that the 2008 rule
could restrict some patients’ access to contraception. DHHS stated that it rescinded the rule in
part because it “had the potential to negatively impact patient access to contraception and certain
other medical services without a basis in federal conscience protection statutes.” DHHS reiterated
that entities should continue to comply with their Title X obligations.94
Legislation in the 112th Congress
Several bills on the Title X program have been introduced in the 112th Congress.
Abortion Restrictions
H.R. 217, the Title X Abortion Provider Prohibition Act, was introduced January 7, 2011. The bill
would prohibit Title X assistance to any entity unless it certifies that it will not perform, nor
provide funds to any other entity that performs, an abortion during the period of assistance. The
prohibition would not apply to hospitals, unless the hospital provides funds to a non-hospital
entity that performs an abortion. The bill has exceptions for abortions performed in cases of rape,
incest against a minor, or certain physician-certified cases where the woman is “in danger of
death unless an abortion is performed.” H.R. 217 would also require the DHHS Secretary to
provide Congress an annual report listing, for each entity receiving a Title X grant: information
on any abortions it performed, the date that it last certified that it would not perform abortions,
and any other entities to which it makes available funds received through Title X grants. The bill
was referred to the House Committee on Energy and Commerce.
S. 96, the Title X Family Planning Act, was introduced January 25, 2011. It would prohibit Title
X funds from going to entities that perform abortions or whose subgrantees perform abortions,
except in certain physician-certified cases where the woman is “in danger of death unless an
abortion is performed.” This prohibition would not apply to hospitals, unless the hospital
subgrants to a non-hospital entity that performs abortions. S. 96 would require Title X grant
applicants to certify that they and their subgrantees adhere to the abortion prohibition. It would
also require the DHHS to provide Congress with an annual list of Title X grantees that perform
abortions; if an entity appears on the list, it would be ineligible for subsequent fiscal year Title X
funds unless it certifies that it no longer performs abortions. S. 96 was referred to the Senate
Committee on Health, Education, Labor, and Pensions.
Other bills related to abortion are discussed in CRS Report RL33467, Abortion: Judicial History
and Legislative Response, by Jon O. Shimabukuro.
93
94
76 Federal Register 9973.
76 Federal Register 9974.
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Elimination of Title X Funds
H.R. 1, the Full-Year Continuing Appropriations Act, 2011, passed the House on February 19,
2011, and failed to pass the Senate on March 9, 2011. It would have eliminated funding for Title
X for the remainder of FY2011. During House debate on H.R. 1, three amendments were
submitted that would have struck the language eliminating funds for Title X.95 One of those
amendments would have also maintained FY2011 Title X funding at the FY2010 level of
$317.491 million.96 These amendments did not see floor action. During Senate debate on H.R. 1,
S.Amdt. 149 was defeated; it was a substitute amendment that would have continued funding
Title X for the remainder of FY2011 at the same rate of operations and under the same conditions
as in FY2010. On April 15, 2011, P.L. 112-10, the Department of Defense and Full-Year
Continuing Appropriations Act, 2011, became law; it provided $299.400 million for Title X in
FY2011.97
H.R. 408, the Spending Reduction Act of 2011, was introduced January 24, 2011. It would
eliminate the Title X program, stating that “No funds appropriated or otherwise available to any
Federal department or agency may be obligated or expended for” a list of programs including
Title X. It was referred to the House Committees on Oversight and Government Reform, Natural
Resources, Transportation and Infrastructure, Budget, Rules, Appropriations, Agriculture,
Administration, Education and the Workforce, Energy and Commerce, Ways and Means,
Financial Services, Judiciary, and Science, Space, and Technology.
S. 178, the Spending Reduction Act of 2011, was introduced January 25, 2011. It would eliminate
the Title X program, stating that “No funds appropriated or otherwise available to any Federal
department or agency may be obligated or expended for” a list of programs including Title X. It
was referred to the Senate Committee on Finance.
H.R. 1099, the Taxpayers’ Freedom of Conscience Act of 2011, was introduced March 15, 2011.
It would prohibit federal officials from expending federal funds for “any population control or
population planning program or any family planning activity (including any abortion procedure),
irrespective of whether such program or activity is foreign or domestic.” H.R. 1099 was referred
to the House Committees on Foreign Affairs and Energy and Commerce.
H.R. 3070, the Departments of Labor, Health and Human Services, and Education, and Related
Agencies Appropriations Act, 2012, was introduced September 29, 2011. The act’s funds would
be prohibited from being used to carry out Title X of the Public Health Service Act. H.R. 3070
was referred to the House Committee on Appropriations.
Public Disclosure of Audits
S. 814, the Title X Transparency and Verification Act, was introduced April 13, 2011. It would
require disclosure on the DHHS website of the results of any audits conducted under Title X on
95
Amendment no. 335, House amendments, Congressional Record, daily edition, February 14, 2011, p. H794;
Amendment no. 386, House amendments, Congressional Record, daily edition, February 14, 2011, p. H796;
Amendment no. 505, House amendments, Congressional Record, daily edition, February 15, 2011, p. H929.
96
Amendment no. 335, House amendments, Congressional Record, daily edition, February 14, 2011, p. H794
97
Sec. 1810 provides $300 million for Title X in FY2011. Sec. 1119 rescinds 0.2% across-the-board from most nondefense items including Title X.
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any entity receiving Title X funds. S. 814 was referred to the Senate Committee on Health,
Education, Labor, and Pensions.
Limits on Means-Tested Welfare Spending
H.R. 1135, H.R. 1167, and S. 1904, all titled the Welfare Reform Act of 2011, would define
“means-tested welfare spending” programs to include family planning, as well as more than 70
other federal programs. The bills would require a limit on aggregate means-tested welfare
spending, no greater than the FY2007 level, adjusted for inflation. The limit would be enforced
through the congressional budget process. Under H.R. 1135 and H.R. 1167, this limit would
become effective “after any monthly rate of unemployment during the immediately preceding
fiscal year is below 6.5 percent.” Under S. 1904, this limit would become effective in FY2015 or
“after any monthly rate of unemployment during the immediately preceding fiscal year is below
7.5%,” whichever is earlier. Among other provisions, the bills would also require the President’s
Budget to provide information on total means-tested welfare spending. H.R. 1135 was introduced
March 16, 2011 and referred to the House Committees on Ways and Means, Agriculture, the
Budget, Rules, and Energy and Commerce. H.R. 1167 was introduced March 17, 2011 and
referred to the same committees. S. 1904 was introduced November 17, 2011, and referred to the
Senate Committee on Finance.
Restrictions on Funding to Planned Parenthood
H.Con.Res. 36 would have directed the House Clerk to make a correction in the enrollment of
H.R. 1473, the Department of Defense and Full-Year Continuing Appropriations Act, 2011.98 It
would have prohibited funds under H.R. 1473 from being made available “for any purpose” to the
Planned Parenthood Federation of America or any of its affiliates. On April 14, 2011, H.Con.Res.
36 passed the House and was defeated in the Senate.
H.Amdt. 95 to H.R. 1, the Full-Year Continuing Appropriations Act, 2011, would have prohibited
the bill’s funds from being made available “for any purpose” to PPFA or to any of 102 affiliates
and offices listed in the amendment.99 The House agreed to the amendment on February 18, 2011.
H.R. 1 passed the House on February 19, 2011, and failed to pass the Senate on March 9, 2011.
During Senate debate on H.R. 1, S.Amdt. 149 was defeated; it was a substitute amendment that
did not mention Planned Parenthood and that would not have eliminated funds for Planned
Parenthood. On April 15, 2011, P.L. 112-10, the Department of Defense and Full-Year Continuing
Appropriations Act, 2011, became law; it did not mention Planned Parenthood and did not
eliminate funds for Planned Parenthood.
H.R. 3070, the Departments of Labor, Health and Human Services, and Education, and Related
Agencies Appropriations Act, 2012, was introduced September 29, 2011. It would prohibit the
act’s funds from being made available “for any purpose” to PPFA or any of its affiliates and
clinics, unless they certify that PPFA affiliates and clinics will not perform an abortion, and will
not provide any funds to any other entity that performs an abortion. There are exceptions for rape,
incest, and certain physician-certified cases where the woman is “in danger of death unless an
98
H.R. 1473 became P.L. 112-10 on April 15, 2011.
Amendment no. 11, House amendments, Congressional Record, daily edition, February 14, 2011, pp. H776-H777.
The entities listed in the amendment were the same as those on the website Planned Parenthood Federation of America,
Local & State Offices, http://www.plannedparenthood.org/about-us/affiliate-and-state-offices.htm.
99
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abortion is performed.” The DHHS Secretary would be required to “seek repayment of any
Federal assistance received by Planned Parenthood Federation of America, Inc., or any affiliate or
clinic of Planned Parenthood Federation of America, Inc., if it violates the terms of the
certification required by this section.” H.R. 3070 was referred to the House Committee on
Appropriations.
Maternity Care Home Demonstration
H.R. 3620, the Quality Care for Moms and Babies Act, would authorize a three-year Maternity
Care Home Demonstration Program. Title X clinics would be eligible to participate. A maternity
care home would be required to use practice innovations and coordination agreements with other
providers to improve the management and coordination of maternity care for women, including
family planning. H.R. 3620 was introduced December 8, 2011 and referred to the House
Committee on Energy and Commerce.
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Appendix. Summary of Title X of the Public Health
Service Act
Below is a summary of Title X of the Public Health Service Act, codified at 42 U.S.C. Section
300 to Section 300a-6, Population Research and Voluntary Family Planning Programs:
Section 1001. Project Grants and Contracts for Family Planning
Services
The Secretary may make grants to and enter into contracts with public or nonprofit private
entities to assist in the establishment and operation of voluntary family planning projects to offer
a broad range of acceptable and effective family planning methods and services (including natural
family planning methods, infertility services, and services for adolescents). Entities which receive
grants or contracts must encourage family participation in their projects.
Section 1002. Formula Grants to States for Family Planning
Services
The Secretary may make grants to state health authorities to assist in planning, establishing,
maintaining, coordinating, and evaluating family planning services. The state health authority
must have an approved state plan for a coordinated and comprehensive program of family
planning services.
Section 1003. Training Grants and Contracts
The Secretary may make grants to public or nonprofit private entities and enter into contracts
with public or private entities and individuals to provide the training for personnel to carry out
family planning service programs.
Section 1004. Research
The Secretary may conduct and make grants to public or nonprofit private entities and enter into
contracts with public or private entities and individuals for projects for research in the
biomedical, contraceptive development, behavioral, and program implementation fields related to
family planning and population.
Section 1005. Informational and Educational Materials
The Secretary may make grants to public or nonprofit private entities and enter into contracts
with public or private entities and individuals to assist in developing and making available family
planning and population growth information (including educational materials) to all persons
desiring such information.
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Section 1006. Regulations and Payments
The Secretary may promulgate regulations and must determine the conditions for making
payments to grantees to assure that such grants will be effectively utilized for the purposes they
were made.
Grantees must assure that (1) priority will be given to the furnishing of services to persons from
low-income families; and (2) no charge will be made in such project or program for services
provided to any person from a low-income family except to the extent that payment will be made
by a third party (including a government agency) which is authorized or is under legal obligation
to pay the charge.
The Secretary must be satisfied that informational or educational materials developed or made
available under the grant or contract will be suitable for the purposes of this title and for the
population or community to which they are to be made available.
In the case of any grant or contract under Section 1001, such assurances shall provide for the
review and approval of the suitability of such materials, prior to their distribution, by an advisory
committee established by the grantee or contractor in accordance with regulations.
Section 1007. Voluntary Participation
The acceptance by any individual of family planning services or family planning or population
growth information (including educational materials) shall be voluntary and shall not be a
prerequisite to eligibility for or receipt of any other service or assistance from, or to participation
in, any other program of the entity or individual that provided such service or information.
Section 1008. Prohibition of Abortion
None of the funds appropriated under this title shall be used in programs where abortion is a
method of family planning.
Author Contact Information
Angela Napili
Information Research Specialist
anapili@crs.loc.gov, 7-0135
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consider it their usual source of care,” in Rachel Benson Gold, Adam Sonfield, and Cory L. Richards, et al., Next Steps
for America’s Family Planning Program: Leveraging the Potential of Medicaid and Title X in an Evolving Health Care
System, Guttmacher Institute, New York, 2009, p. 14, http://www.guttmacher.org/pubs/NextSteps.pdf.
15
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, pp. 21, 23.
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Grantees and Clinics
In 2010, there were 89 Title X family planning services grantees. Such grantees included 49 state,
local, and territorial health departments and 40 nonprofit organizations, such as hospitals,
community health centers, family planning councils, Planned Parenthood affiliates, and
universities.16
Title X grantees can provide family planning services directly or they can delegate Title X monies
to other agencies to provide services. Although there are no matching requirements for grants,
regulations specify that no clinics may be fully supported by Title X funds.17 In 2010, Title X
provided services through 4,389 clinics located in the 50 states, the District of Columbia, and the
U.S. territories.18
Family Planning Training and Research Grants
Grants for family planning personnel training are used to train staff and to improve the use and
career development of paraprofessionals.19 Staff are trained through 10 regional general training
programs and 3 national training programs.20 Family planning service delivery improvement
research grants are used to develop studies to enhance effectiveness and efficiency of the service
delivery system.
More information on the Title X program can be found at http://www.hhs.gov/opa/title-x-familyplanning/.
FY2013 Funding
Budget Request
The President’s FY2013 Budget requests $296.838 million for Title X. This would be a 1%
increase over the FY2012 level of $293.870 million.21 The budget would continue previous years’
requirements that Title X funds not be spent on abortions, that all pregnancy counseling be
nondirective, and that funds not be spent on promoting or opposing any legislative proposal or
candidate for public office.22
16
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, p. 7.
17
42 C.F.R. §59.7(c).
18
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, p. 7. A searchable directory of Title X providers is at HHS, OPA, Family Planning Clinic
Updates, https://opa-fpclinics.icfwebservices.com.
19
CFDA, Program number 93.260.
20
HHS, OPA, Regional Training Centers, http://www.hhs.gov/opa/title-x-family-planning/training/regional-trainingcenters/.
21
HHS, HRSA, Fiscal Year 2013, Justification of Estimates for Appropriations Committees, p. 347.
22
HHS, HRSA, Fiscal Year 2013, Justification of Estimates for Appropriations Committees, p. 19.
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Highlights from the FY2013 HRSA Budget Justification include the following:
•
The proposed FY2013 funding level is projected to support family planning
services for 5 million clients.
•
The program’s FY2013 goals include preventing 1,600 cases of infertility
through Chlamydia screening and 961,000 unintended pregnancies.
•
Family planning clinics will be encouraged to use electronic health records and
electronic practice management systems and to improve clinics’ ability to bill
third parties.
•
The program will continue to try to increase competition for funds, targeting
areas that currently lack access to family planning services.
•
The program will continue to try to improve clinic efficiency in response to rising
costs for pharmaceuticals, providers, and screening and diagnostic technologies.
•
The FY2013 target for cost per client served is $292.23, with the goal of
maintaining the cost per client below the medical care inflation rate.
•
Clinics will be encouraged to expand the availability of long-acting reversible
contraceptive methods.
•
The FY2013 HRSA Justification describes plans to continue a contract with the
Institute of Medicine (IOM) for a Standing Committee to advise the Title X
program. The Standing Committee is examining the role of family planning and
reproductive health in health reform and will address recommendations made in
the independent IOM report, A Review of the HHS Family Planning Program:
Mission, Management, and Measurement of Results (2009). (The IOM report is
discussed further in the section “Institute of Medicine Evaluation.”) 23
Senate Activity
On June 14, 2012, the Senate Appropriations Committee approved its FY2013 Labor-HHSEducation appropriations bill, S. 3295. The bill would provide $293.870 million for Title X, the
same as the FY2012 funding level.
S. 3295 would continue previous years’ requirements that Title X funds not be spent on abortions,
that all pregnancy counseling be nondirective, and that funds not be spent on “any activity
(including the publication or distribution of literature) that in any way tends to promote public
support or opposition to any legislative proposal or candidate for public office.” Grantees would
continue to be required to certify that they encourage “family participation” when minors decide
to seek family planning services and that they counsel minors on how to resist attempted coercion
into sexual activity. The bill also clarifies that family planning providers are not exempt from
state notification and reporting laws on child abuse, child molestation, sexual abuse, rape, or
incest.
In the committee report, the Senate Appropriations Committee supported updating program
guidance to clarify that Title X funds may be used for information technology training and
23
HHS, HRSA, Fiscal Year 2013, Justification of Estimates for Appropriations Committees, pp. 347-353.
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implementation, including electronic medical records. The committee also directed HRSA and the
HHS Secretary to take certain steps to allow Title X-funded specialized family planning centers to
be National Health Service Corps (NHSC) sites.24
House Activity
On July 18, 2012, the House Appropriations Subcommittee on Labor, Health and Human
Services, Education, and Related Agencies approved its draft FY2013 appropriations bill, which
would prohibit the bill’s funds from being used for the Title X program.25
The House subcommittee’s draft bill would continue previous years’ language requiring Title X
grantees to certify that they encourage “family participation” when minors decide to seek family
planning services and that they counsel minors on how to resist attempted coercion into sexual
activity. The draft bill also clarifies that family planning providers are not exempt from state
notification and reporting laws on child abuse, child molestation, sexual abuse, rape, or incest.
The House subcommittee’s draft bill would prohibit the bill’s funds from being made available
“for any purpose” to the Planned Parenthood Federation of America (PPFA) or any of its affiliates
and clinics, unless they certify that PPFA affiliates and clinics will not perform an abortion, and
will not provide any funds to any other entity that performs an abortion. There are exceptions for
rape, incest, and certain physician-certified cases in which the woman is “in danger of death
unless an abortion is performed.” The HHS Secretary would be required to “seek repayment of
any Federal assistance received by Planned Parenthood Federation of America, Inc., or any
affiliate or clinic of Planned Parenthood Federation of America, Inc., if it violates the terms of the
certification required by this section.”
Continuing Resolution
On July 31, 2012, House and Senate leaders announced a bipartisan agreement to consider a sixmonth FY2013 continuing resolution (CR). The CR would provide appropriations from October
2012 through March 2013. According to the announcements, the CR would be consistent with the
spending cap in the Budget Control Act, which limits FY2013 federal discretionary spending to
$1.047 trillion. The announcements did not specify program funding levels. The House and the
Senate are expected to consider the continuing resolution in September 2012.26
24
S.Rept. 112-176, pp. 56-57. NHSC sites are required to provide referrals to comprehensive primary care services.
The Senate Appropriations Committee directed HRSA to align Title X’s and NHSC’s definitions of “comprehensive
primary care services.” The committee also directed the HHS Secretary to provide guidance to Title X-only funded
grantees on how to meet NHSC site requirements. For discussion of NHSC issues, see Rachel Benson Gold, “The
National Health Service Corps: An Answer to Family Planning Centers’ Workforce Woes?,” Guttmacher Policy
Review, vol. 14, no. 1 (Winter 2011), pp. 11-15; and Adam Sonfield, “Washington Watch: Providers look to help from
workforce program,” Contraceptive Technology Update, July 1, 2011.
25
U.S. Congress, House Committee on Appropriations, Subcommittee on Labor, Health and Human Services,
Education, and Related Agencies, Making appropriations for the Departments of Labor, Health and Human Services,
and Education, and related agencies for the fiscal year ending September 30, 2012, and for other purposes, Draft bill,
112th Cong., 2nd sess., July 15, 2012, Sections 208, 209, 219, and 536, http://appropriations.house.gov/uploadedfiles/
bills-112hr-sc-ap-fy13-laborhhsed.pdf.
26
Speaker of the House John Boehner, “Speaker Boehner: House & Senate to Pass Six-Month CR in September,” press
release, July 31, 2012, http://www.speaker.gov/press-release/speaker-boehner-house-senate-pass-six-month-cr(continued...)
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FY2012 Funding
FY2012 funding for Title X is $293.870 million, 2% less than the FY2011 level of $299.400
million.27 P.L. 112-74, the Consolidated Appropriations Act, 2012, continues previous years’
requirements that Title X funds not be spent on abortions, that all pregnancy counseling be
nondirective, and that funds not be spent on “any activity (including the publication or
distribution of literature) that in any way tends to promote public support or opposition to any
legislative proposal or candidate for public office.” Grantees continue to be required to certify
that they encourage “family participation” when minors decide to seek family planning services
and that they counsel minors on how to resist attempted coercion into sexual activity. The law
also clarifies that family planning providers are not exempt from state notification and reporting
laws on child abuse, child molestation, sexual abuse, rape, or incest.28
The Consolidated Appropriations Act, 2012, contains a clause, known as the Weldon Amendment,
stating that “None of the funds made available in this Act may be made available to a Federal
agency or program, or to a State or local government, if such agency, program, or government
subjects any institutional or individual health care entity to discrimination on the basis that the
health care entity does not provide, pay for, provide coverage of, or refer for abortions.”29 Some
have argued that the Weldon Amendment conflicts with regulations that require Title X family
planning services projects to give pregnant women the opportunity to receive information,
counseling, and referral upon request for several options, including “pregnancy termination.”30 In
(...continued)
september. Senate Majority Leader Harry Reid, “Reid Announces Deal With House, White House To Fund
Government Through First Quarter Of 2013,” press release, July 31, 2012, http://www.reid.senate.gov/newsroom/
pr_073112_reid-announces-government-funding-2013.cfm. For more background on the Budget Control Act, see CRS
Report R41965, The Budget Control Act of 2011.
27
HHS, Health Resources and Services Administration, Fiscal Year 2013 Justification of Estimates for Appropriations
Committees, p. 347. The Consolidated Appropriations Act, 2012 (P.L. 112-74) at 125 Stat. 1066, initially provided
$297.400 million for Title X in FY2012; Division F, Title V, section 527 applied a 0.189% across-the-board rescission
to most Labor-HHS-Education items, bringing the funding level to $296.838 million (125 Stat. 1115). In January 2012,
the HHS Secretary announced the transfer of $2.968 million from Title X to HIV/AIDS assistance programs, bringing
the Title X funding level to $293.870 million (Letter from Kathleen Sebelius, Secretary of Health and Human Services,
to the Honorable Tom Harkin, January 20, 2012). Prior to passage of the Consolidated Appropriations Act, 2012 (P.L.
112-74), Congress provided temporary FY2012 funding under three continuing resolutions. P.L. 112-33, the
Continuing Appropriations Act, 2012, provided funding through October 4, 2011. P.L. 112-36, the Continuing
Appropriations Act, 2012, provided funding through November 18, 2011. P.L. 112-55, the Consolidated and Further
Continuing Appropriations Act, 2012, provided funding through December 16, 2011. For most federal programs,
including Title X Family Planning, these continuing resolutions continued funding under the same authority and
conditions as for FY2011, but with a 1.503% across-the-board reduction in the rate of operations.
28
P.L. 112-74, Division F, Title II, §209 and §210.
29
P.L. 112-74, Division F, §507(d). The Weldon Amendment was originally adopted as part of the FY2005 LaborHHS-Education appropriations law, and has been attached to each subsequent Labor-HHS-Education appropriations
law: P.L. 108-447, Division F, §508(d), 118 Stat. 3163 (FY2005); P.L. 109-149, §508(d), 119 Stat. 2879 (FY2006).
Under P.L. 110-5, §2, 121 Stat. 8, FY2007 appropriations were subject to the same conditions as during FY2006. P.L.
110-161, Division G, §508(d), 121 Stat. 1844 (FY2008). P.L. 111-8, Division F, §508(d), 123 Stat. 803 (FY2009). P.L.
111-117, Division D, §508(d), 123 Stat. 3280 (FY2010). Under P.L. 112-10, Division B, §1101, FY2011
appropriations were subject to the same conditions as during FY2010.
30
42 C.F.R. 59.5(a)(5). Examples of this argument appear in “Weldon Amendment,” Congressional Record, daily
edition, vol. 151, no. 51 (April 25, 2005), p. S4222; and “Federal Refusal Clause,” Congressional Record, daily
edition, vol. 151, no. 52 (April 26, 2005), p. S425. The National Family Planning and Reproductive Health Association
(NFPRHA), many of whose members provide Title X services, filed a lawsuit challenging the Weldon Amendment in
the U.S. District Court for the District of Columbia. The court found that “While Weldon may not provide the level of
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Title X (Public Health Service Act) Family Planning Program
the February 23, 2011, Federal Register, HHS stated of potential conflicts, “The approach of a
case by case investigation and, if necessary, enforcement will best enable the Department to deal
with any perceived conflicts within concrete situations.”31 This issue is discussed further in
“Provider Conscience Rule” below.
On September 22, 2011, the Senate Appropriations Committee reported S. 1599, the Departments
of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act,
2012. In the accompanying committee report S.Rept. 112-84, the Senate Appropriations
Committee stated that it was aware of the 2009 Institute of Medicine review of the program, and
that it supports the OFP’s efforts to review and update Title X program guidance and
administrative directives.32 The committee also stated that it encourages HRSA to allocate
resources to OPA from the Patient Protection and Affordable Care Act (ACA). These resources
would be used for technical assistance to help grantees prepare for ACA implementation,
“including the expansion of Medicaid, technology upgrades and participating essential
community providers.”33
(...continued)
guidance that NFPRHA or its members would prefer, may create a conflict with pre-existing agency regulations, and
may impose conditions that NFPRHA members find unacceptable, none of these reasons provides a sufficient basis for
the court to invalidate an act of Congress in its entirety.” Upon appeal, the U.S. Court of Appeals for the District of
Columbia Circuit found that the plaintiff lacked the standing to challenge the Weldon Amendment. See National
Family Planning and Reproductive Health Association, Inc., v. Alberto Gonzales, et al., 468 F.3d 826 (D.C. Cir. 2006),
and 391 F. Supp. 2d 200, 209 (D.D.C. 2005).
31
HHS, “Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws,” 76 Federal
Register 9973, February 23, 2010.
32
S.Rept. 112-84, p. 58.
33
Beginning in 2014, ACA will provide certain individuals and small businesses with access to private health plans
through new health insurance exchanges. To ensure access for low-income individuals, most exchange plans will be
required to have a sufficient number and geographic distribution of “essential community providers,” which include
Title X projects. U.S. Health and Human Services Department, “Patient Protection and Affordable Care Act;
Establishment of Exchanges and Qualified Health Plans; Exchange Standards for Employers,” 77 Federal Register
18470, March 27, 2012; 45 C.F.R. § 156.235
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Table 1. Title X Family Planning Program Appropriations
(in millions)
FY
Appropriation
FY
Appropriation
FY
Appropriation
1971
$6.0
1986
$136.4
2001
$253.9
1972
$61.8
1987
$142.5
2002
$265.0
1973
$100.6
1988
$139.7
2003
$273.4
1974
$100.6
1989
$138.3
2004
$278.3
1975
$100.6
1990
$139.1
2005
$286.0
1976
$100.6
1991
$144.3
2006
$282.9
1977
$113.0
1992
$149.6
2007
$283.1
1978
$135.0
1993
$173.4
2008
$300.0
1979
$135.0
1994
$180.9
2009
$307.5
1980
$162.0
1995
$193.3
2010
$317.5
1981
$161.7
1996
$192.6
2011
$299.4
1982
$124.2
1997
$198.5
2012
$293.9
1983
$124.1
1998
$203.5
2013
a
1984
$140.0
1999
$215.0
1985
$142.5
2000
$238.9
Source: FY1971-FY2005: Department of Health and Human Services, Office of Population Affairs, Funding
History, http://www.hhs.gov/opa/title-x-family-planning/title-x-policies/title-x-funding-history/; FY2006: Senate
Appropriations Committee, S.Rept. 109-287, p. 325; FY2007: Consolidated Appropriations Act, 2008 Committee Print
of the House Committee on Appropriations on H.R. 2764/P.L. 110-161, p. 1793, http://www.gpo.gov/fdsys/pkg/CPRT110HPRT39564; FY2008-FY2009: “Explanatory Statement Submitted by Mr. Obey, Chairman of the House
Committee on Appropriations, Regarding H.R. 1105, Omnibus Appropriations Act, 2009,” Congressional Record,
daily edition, vol. 155, no. 31 (February 23, 2009), p. H2378. FY2010: P.L. 111-117, 123 Stat. 3239. FY2011: P.L.
112-10, §1810 and §1119. FY2012: HHS, HRSA, Fiscal Year 2013 Justification of Estimates for Appropriations
Committees, p. 347.
a.
The FY2013 funding level has not yet been finalized. The President’s FY2013 Budget requests $296.8 million.
The Senate-reported FY2013 Labor-HHS-Education Appropriations bill, S. 3295, proposes $293.9 million.
The House Appropriations Labor-HHS-Education Subcommittee’s draft FY2013 bill proposes zero funding
for Title X.
Institute of Medicine Evaluation
At the request of OFP, the Institute of Medicine (IOM) of the National Academy of Sciences
independently evaluated the Title X program and made recommendations in A Review of the HHS
Family Planning Program: Mission, Management, and Measurement of Results (2009).34
34
Institute of Medicine (IOM), Committee on a Comprehensive Review of the HHS Office of Family Planning Title X
Program, A Review of the HHS Family Planning Program: Mission, Management, and Measurement of Results, ed.
Adrienne Stith Butler and Ellen Wright Clayton (Washington, DC: The National Academies Press, 2009),
http://www.nap.edu/catalog.php?record_id=12585.
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Title X (Public Health Service Act) Family Planning Program
IOM found that family planning—“helping people have children when they want to and avoid
conception when they do not—is a critical social and public health goal,” and that the “federal
government has a responsibility to support the attainment of this goal.” IOM noted, for example,
that family planning can prevent unintended and high-risk pregnancies, thereby reducing fetal,
infant, and maternal mortality and morbidity. IOM also stated that the appropriate use of
contraception can reduce abortion rates and cited “ample evidence that family planning services
are cost-effective.”35
IOM recommended that OFP develop and implement a multiyear evidence-based strategic plan.36
IOM also made specific recommendations to improve program management and administration.
For example, IOM recommended that
•
program funding be increased so that statutory responsibilities can be met,
•
methods of allocating funds be examined and improved,
•
drug purchasing sources be consolidated,
•
clinics’ administrative burden be reduced,
•
a single method be adopted for determining criteria for eligible services,
•
transparency be increased,
•
workforce needs be assessed, and
•
program guidelines be evidence-based.37
Finally, IOM made recommendations to improve program evaluation. For example, IOM
recommended that
•
OFP collect additional data on client and system characteristics, the process and
quality of care, and program outcomes;
•
OFP fund and use a comprehensive framework for evaluating Title X;
•
OFP obtain scientific input on its evaluation efforts; and
•
evaluation findings be communicated to grantees, clinics, and others.38
In response to the IOM recommendations, OPA plans to have new Title X Family Planning
Service Guidelines by the beginning of FY2013. These guidelines were developed over two
years, during which expert panels reviewed the scientific literature. OPA states that the new
guidelines will have “a foundation of empirical evidence and information supporting clinical
practice.”39
35
IOM, A Review of the HHS Family Planning Program: Mission, Management, and Measurement of Results, pp. 4,
70.
36
IOM, A Review of the HHS Family Planning Program: Mission, Management, and Measurement of Results, p. 98.
37
IOM, A Review of the HHS Family Planning Program: Mission, Management, and Measurement of Results, pp. 140143.
38
IOM, A Review of the HHS Family Planning Program: Mission, Management, and Measurement of Results, pp. 166170.
39
HHS, HRSA, Fiscal Year 2013 Justification of Estimates for Appropriations Committees, p. 351.
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Title X (Public Health Service Act) Family Planning Program
Also in response to the IOM report, HHS has a contract with IOM to convene a Standing
Committee to advise the Title X program. According to the FY2013 HRSA Justification, the
Standing Committee is advising the program on the following areas related to report
recommendations: strategic planning, workforce planning, improving data collection on program
performance, and improving communication and transparency. The Standing Committee is also
examining the roles of family planning, reproductive health, and Title X in health reform.40
The Patient Protection and Affordable Care Act and
Title X
The Patient Protection and Affordable Care Act (ACA) has numerous provisions that may impact
Title X clinics.41 Notably, ACA increases access to health insurance.42 (In 2010, 67% of Title X
clients were uninsured.43) Federal ACA regulations and guidance will also require most health
plans and health insurers to cover contraceptive services without cost-sharing.
ACA has several provisions that may increase health insurance coverage in the populations
currently served by Title X. These provisions could help free up funds that Title X clinics
currently spend on serving the uninsured. For example,
•
States can expand Medicaid eligibility to include most nonelderly, nonpregnant
individuals with income at or below 133% of FPL, effectively 138% FPL with
the 5% income disregard.44 (In 2010, 69% of Title X clients had incomes under
101% of FPL; another 15% had incomes between 101% and 150% of FPL.)45
40
HHS, HRSA, Fiscal Year 2013 Justification of Estimates for Appropriations Committees, pp. 350-351. IOM,
Standing Committee on Family Planning, http://www.iom.edu/Activities/Women/FamilyPlanning.aspx.
41
The Patient Protection and Affordable Care Act (P.L. 111-148, March 23, 2010) was amended by the Health Care
Education and Reconciliation Act of 2010 (P.L. 111-152, March 30, 2010). These acts will be collectively referred to in
this report as “ACA.”
42
The Congressional Budget Office estimates that the share of nonelderly residents with insurance will grow from 80%
in 2012 to 89% by 2022. Congressional Budget Office, Estimates for the Insurance Coverage Provisions of the
Affordable Care Act Updated for the Recent Supreme Court Decision, July 24, 2012, p. 20, http://cbo.gov/publication/
43472.
43
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, pp. 21, 23.
44
P.L. 111-148, §2001 as modified by §10201; P.L. 111-152, §1004 and §1201. This provision is summarized in CRS
Report R41210, Medicaid and the State Children’s Health Insurance Program (CHIP) Provisions in ACA: Summary
and Timeline, by Evelyne P. Baumrucker et al., and CRS Report RL33202, Medicaid: A Primer, by Elicia J. Herz. See
also To Be or Not to Be a “New Program”? What does NFIB v. Sebelius Mean for Implementation of the Affordable
Care Act’s Medicaid Expansion Provision?, by Kathleen Swendiman, http://www.crs.gov/analysis/legalsidebar/pages/
details.aspx?ProdId=121. All state Medicaid programs are mandated to include family planning services and supplies in
their benefit packages, with no cost-sharing. For those in the new eligibility group, states receive a federal matching
rate of 100% in 2014 through 2016, including for family planning expenditures, gradually declining to 90% in 2020
and thereafter. For all other Medicaid enrollees, states receive an enhanced federal matching rate of 90% for family
planning expenditures.
45
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, p. 22.
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Title X (Public Health Service Act) Family Planning Program
•
ACA gave states the option, through a Medicaid state plan amendment, of
providing targeted Medicaid family planning services and supplies to certain
individuals who would otherwise be ineligible for Medicaid.46
•
ACA requires most private health plans that cover dependents to continue to
make such coverage available for young adult children under the age of 26.47 (In
2010, 53% of Title X clients were younger than 25 years old; another 21% were
aged 25 to 29.)48
•
Beginning in 2014, ACA will provide certain individuals and small businesses
with access to private health plans through new health insurance exchanges and
will subsidize the premium costs for certain individuals.49
•
Beginning in 2014, ACA’s individual mandate provision will require most
individuals to have health insurance or pay a penalty.50
ACA provisions to expand health insurance coverage are described in CRS Report R41664, ACA:
A Brief Overview of the Law, Implementation, and Legal Challenges, coordinated by C. Stephen
Redhead.
OPA has established FY2012 Program Priorities to guide the project plans of family planning
services grantees. In response to ACA, among the priorities is improving Title X clinics’ ability to
bill Medicaid and private health insurance:
Identifying specific strategies for addressing the provisions of health care reform (“The
Patient Protection and Affordable Care Act”), and for adapting delivery of family planning
and reproductive health services to a changing health care environment, and assisting clients
with navigating the changing health care system. This includes, but is not limited to,
enhancing the ability of Title X clinics to bill third party payers, private insurance, and
Medicaid.51
46
P.L. 111-148, §2303. This provision was effective upon enactment. Prior to ACA, states could provide these
Medicaid family planning expansions only by obtaining special waivers. This provision is summarized in CRS Report
R41210, Medicaid and the State Children’s Health Insurance Program (CHIP) Provisions in ACA: Summary and
Timeline, by Evelyne P. Baumrucker et al. As of August 1, 2012, eight states have had state plan amendments approved
under this new authority. Guttmacher Institute, State Policies in Brief as of August 1, 2012: Medicaid Family Planning
Eligibility Expansion, http://www.guttmacher.org/statecenter/spibs/spib_SMFPE.pdf. Federal guidance is provided in
Cindy Mann, Director, Center for Medicaid, CHIP and Survey & Certification, State Medicaid Directors Letter #10013, Family Planning Services Option and New Benefit Rules for Benchmark Plans, July 2, 2010,
https://www.cms.gov/smdl/downloads/SMD10013.pdf.
47
P.L. 111-148, §1001, as amended by P.L. 111-152, §2301. This dependent coverage provision is effective for plan
years beginning on or after September 23, 2010. The provision is summarized in CRS Report R41220, Preexisting
Condition Exclusion Provisions for Children and Dependent Coverage under the Patient Protection and Affordable
Care Act (ACA), by Bernadette Fernandez.
48
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, p. 11.
49
To ensure access for low-income individuals, most exchange plans will be required to have a sufficient number and
geographic distribution of “essential community providers,” which include Title X projects. HHS, “Patient Protection
and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans; Exchange Standards for
Employers,” 77 Federal Register 18470, March 27, 2012; 45 C.F.R. § 156.235.
50
P.L. 111-148, §1501 and §10106, as amended by P.L. 111-152, §1002. This provision is summarized in CRS Report
R41331, Individual Mandate and Related Information Requirements under ACA, by Janemarie Mulvey and Hinda
Chaikind.
51
HHS, OPA, Title X Family Planning Program Priorities, http://www.hhs.gov/opa/title-x-family-planning/title-x(continued...)
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Title X (Public Health Service Act) Family Planning Program
Title X clinics could also provide enrollment assistance to clients who become newly eligible for
Medicaid or exchange plans.52 Title X supporters state that, although clinics currently funded by
Title X could see increased revenues from Medicaid and private insurance after 2014, the Title X
program will still be necessary:
In addition to medical care, Title X supports activities that are not reimbursable under
Medicaid and commercial insurance plans… Title X has made a major contribution to the
training of clinicians; that need remains today… Title X helps to support staff salaries, not
just for clinicians but for front-desk staff, educators and finance and administrative staff.
Title X provides for individual patient education as well as community-level outreach and
public education about family planning and women’s health issues. Title X also helps to
support the infrastructure necessary to keep the doors open—subsidizing rent, utilities and
infrastructure needs like health information technology.53
Some advocates note that even after 2014, family planning services will still be sought by
uninsured persons and dependents who, for confidentiality reasons, might not wish to bill
reproductive health services to their parent’s or spouse’s health insurance.54 Advocates maintain
that even after 2014, there will still be strong demand for safety net providers, such as many Title
X clinics, that provide health care to underserved populations.55
ACA requires most private health plans to cover certain preventive services for women without
cost-sharing.56 HHS commissioned IOM to recommend preventive services to be included in this
requirement.57 Adopting the IOM recommendations, federal rules and guidelines require that most
health plans cover, without cost-sharing, “All Food and Drug Administration approved
contraceptive methods, sterilization procedures, and patient education and counseling for all
women with reproductive capacity,” as prescribed.58 Some have noted that this requirement, by
(...continued)
policies/program-priorities/.
52
Adam Sonfield, “Implementing the Affordable Care Act: Enrollment Strategies and the U.S. Family Planning
Effort,” Guttmacher Policy Review, vol. 14, no. 4 (fall 2011), pp. 20-25. Rachel Benson Gold, “The Role of Family
Planning Centers as Gateways To Health Coverage and Care ,” Guttmacher Policy Review, vol. 14, no. 2 (spring 2011),
pp. 15-19.
53
Clare Coleman and Kirtly Parker Jones, “Title X: A Proud Past, An Uncertain Future,” Contraception, vol. 84
(September 2011), pp. 209-211, http://www.arhp.org/publications-and-resources/contraception-journal/september2011.
54
The Congressional Budget Office estimates that about 30 million nonelderly residents will remain uninsured in 2022.
Congressional Budget Office, Estimates for the Insurance Coverage Provisions of the Affordable Care Act Updated for
the Recent Supreme Court Decision, July 24, 2012, p. 20. Confidentiality issues are discussed in Rachel Benson Gold,
“Unintended Consequences: How Insurance Processes Inadvertently Abrogate Patient Confidentiality,” Guttmacher
Policy Review, vol. 12, no. 4 (fall 2009), pp. 12-16, http://www.guttmacher.org/pubs/gpr/12/4/gpr120412.html.
55
Leighton Ku, Emily Jones, and Peter Shin et al., “Safety-Net Providers After Health Care Reform: Lessons from
Massachusetts,” Archives of Internal Medicine, vol. 171, no. 15 (August 2011), pp. 1379-1384. Massachusetts passed
its health reform law in 2006. The authors found that between 2005 and 2009, the state’s community health centers
(which include some Title X clinics) saw a 31% increase in number of clients served. OPA’s Family Planning Annual
Reports indicate that between 2005 and 2010, the number of Title X clients in Massachusetts declined 7%, from 73,784
in 2005 to 68,446 in 2010. Nationally over the same time period, the number of Title X clients increased 4%, from
5.003 million in 2005 to 5.225 million in 2010. HHS, OPA, Family Planning Annual Reports, http://www.hhs.gov/opa/
title-x-family-planning/research-and-data/fp-annual-reports/#fpar.
56
P.L. 111-148, §1101.
57
IOM, Clinical Preventive Services for Women: Closing the Gaps (Washington, DC: The National Academies Press,
2011), http://www.nap.edu/catalog.php?record_id=13181.
58
The requirement is effective for plan years beginning on or after August 1, 2012, with some exceptions for religious
(continued...)
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Title X (Public Health Service Act) Family Planning Program
removing up-front cost barriers, could result in more women switching to longer-acting
contraceptive methods, such as hormonal implants and intrauterine devices.59 The HRSA
Justification notes that in FY2013, “Family planning centers will be encouraged and trained to
provide a broad range of contraceptives, with a focus on expanding the availability of long-acting
reversible methods.”60
ACA may also impact Title X clinics in other ways. For example, because ACA increased the
rebate percentage drug makers pay on drugs purchased for Medicaid beneficiaries, Title X clinics
likely will receive larger discounts on drugs obtained through the 340B drug discount program.61
ACA also increases funding for teen pregnancy prevention efforts, expands healthcare workforce
programs, and increases funding for community health centers.62 HHS has a contract with IOM to
convene a Standing Committee to advise the Title X program. Among other topics, the IOM
Standing Committee is examining the roles of family planning, reproductive health, and Title X in
health reform.63
Abortion and Title X
The law prohibits the use of Title X funds in programs where abortion is a method of family
planning.64 On July 3, 2000, OPA released a final rule with respect to abortion services in family
(...continued)
entities. Condoms and vasectomies are not included. HHS, HRSA, Women’s Preventive Services: Required Health
Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/. Health and Human Services Department, the
Employee Benefits Security Administration, and the Internal Revenue Service, “Group Health Plans and Health
Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act,”
77 Federal Register 8725, February 15, 2012. Health and Human Services Department, the Employee Benefits Security
Administration, and the Internal Revenue Service, “Certain Preventive Services Under the Affordable Care Act,” 77
Federal Register 16502, Footnote 2, March 21, 2012. The rules and guidelines are discussed in CRS Report R42370,
Preventive Health Services Regulations: Religious Institutions’ Objections to Contraceptive Coverage, by Cynthia
Brougher.
59
Michelle Andrews, “Insurance Coverage Might Steer Women To Costlier—But More Effective—Birth Control,”
Kaiser Health News, February 20, 2012, http://www.kaiserhealthnews.org/Features/Insuring-Your-Health/2012/
contraceptives-coverage-022112.aspx. Kelly Cleland, Jeffrey F. Peipert, and Carolyn Westhoff et al., “Family Planning
as a Cost-Saving Preventive Health Service,” The New England Journal of Medicine, vol. 364 (May 5, 2011), p. e37.
60
HHS, HRSA, Fiscal Year 2013 Justification of Estimates for Appropriations Committees, p. 351.
61
P.L. 111-148, §2501. Title X clinics are among the entities eligible to receive discounts on certain drugs’ prices
under Section 340B of the Public Health Service Act. The maximum prices that drug manufacturers can charge 340B
entities are calculated using the Medicaid rebate formula. The ACA provision is summarized in CRS Report R41210,
Medicaid and the State Children’s Health Insurance Program (CHIP) Provisions in ACA: Summary and Timeline, by
Evelyne P. Baumrucker et al. The 340B program website is http://www.hrsa.gov/opa. There were 3,868 Title X clinic
sites enrolled in the 340B program as of July 1, 2011. U.S. Government Accountability Office, Drug Pricing:
Manufacturer Discounts in the 340B Program Offer Benefits, but Federal Oversight Needs Improvement, GAO-11836, September 23, 2011, p. 39, http://gao.gov/products/GAO-11-836.
62
These and other ACA provisions that could potentially impact Title X clinics are summarized in CRS Report
R41278, Public Health, Workforce, Quality, and Related Provisions in PPACA: Summary and Timeline, coordinated
by C. Stephen Redhead and Erin D. Williams, and CRS Report R41210, Medicaid and the State Children’s Health
Insurance Program (CHIP) Provisions in ACA: Summary and Timeline, by Evelyne P. Baumrucker et al.
63
IOM, Standing Committee on Family Planning, http://www.iom.edu/Activities/Women/FamilyPlanning.aspx. HHS,
HRSA, Fiscal Year 2013 Justification of Estimates for Appropriations Committees, p. 351.
64
42 U.S.C. §300a-6. In addition, language in annual Departments of Labor, Health and Human Services, and
Education, and Related Agencies Appropriations bills have also prohibited the use of Title X funds for abortions (in
FY2012, this provision appeared in P.L. 112-74, 125 Stat. 1066). For background on abortion funding restrictions in
(continued...)
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planning projects.65 The rule updated and revised regulations that had been in effect since 1988.66
The major revision revoked the “gag rule,” which restricted family planning grantees from
providing abortion-related information. The regulation at 42 C.F.R. Section 59.5 had required,
and continues to require, that abortion not be provided as a method of family planning. The July
3, 2000, rule amended the section to add the requirement that a project must give pregnant
women the opportunity to receive information and counseling on each of the following options:
prenatal care and delivery; infant care, foster care, or adoption; and pregnancy termination. If the
woman requests such information and counseling, the project must give “neutral, factual
information and nondirective counseling on each of the options, and referral upon request, except
with respect to any option(s) about which the pregnant woman indicates she does not wish to
receive such information and counseling.”67
According to OPA, family planning projects that receive Title X funds are closely monitored to
ensure that federal funds are used appropriately and that funds are not used for prohibited
activities such as abortion. The prohibition on abortion does not apply to all the activities of a
Title X grantee, but only to activities that are part of the Title X project. The grantee’s abortion
activities must be “separate and distinct” from the Title X project activities.68 Safeguards to
maintain this separation include (1) careful review of grant applications to ensure that the
applicant understands the requirements and has the capacity to comply with all requirements; (2)
independent financial audits to examine whether there is a system to account for program-funded
activities and non-allowable program activities; (3) yearly comprehensive reviews of the grantees’
financial status and budget report; and (4) periodic and comprehensive program reviews and site
visits by OPA regional offices.69
It is unclear exactly how many Title X clinics also provide abortions through their non-Title X
activities. In 2004, following appropriations conference report directions, HHS surveyed its Title
X grantees on whether their clinic sites also provided abortions with non-federal funds.70
Grantees were informed that responses were voluntary and “without consequence, or threat of
consequence, to non-responsiveness.” The survey did not request any identifying information.
HHS mailed surveys to 86 grantees and received 46 responses. Of these, 9 indicated that at least
one of their clinic sites (17 clinic sites in all) also provided abortions with non-federal funds, and
(...continued)
general, see CRS Report RL33467, Abortion: Judicial History and Legislative Response, by Jon O. Shimabukuro.
65
HHS, OPA, “Standards of Compliance for Abortion-Related Services in Family Planning Services Projects,” 65
Federal Register 41270–41280, July 3, 2000; and HHS, OPA, “Provision of Abortion-Related Services in Family
Planning Services Projects, “ 65 Federal Register 41281-41282, July 3, 2000.
66
42 C.F.R. Part 59, “Grants for family planning services.”
67
On December 19, 2008, HHS published a provider conscience rule which, according to HHS, is inconsistent with the
requirement that Title X grantees provide clients with abortion referrals upon request. 73 Federal Register 78087. This
is discussed below in “Provider Conscience Rule.”
68
65 Federal Register 41281-41282, July 3, 2000.
69
E-mail from Barbara Clark, HHS, Office of the Assistant Secretary for Legislation, August 24, 2006. See also OPA
Program Instruction Series, OPA 11-01: Title X Grantee Compliance with Grant Requirements and Applicable Federal
and State Law, including State Reporting Laws, Letter from Marilyn J. Keefe, Deputy Assistant Secretary for
Population Affairs, to Regional Health Administrators, Regions I-X; Title X Grantees, March 1, 2011,
http://www.hhs.gov/opa/pdf/opa-11-01-program-instruction-re-compliance.pdf.
70
HHS, Report to Congress Regarding the Number of Family Planning Sites Funded Under Title X of the Public
Health Service Act That Also Provide Abortions with Non-Federal Funds, 2004. HHS was directed to conduct the
survey by FY2004 appropriations conference report H.Rept. 108-401, pp. 800-801.
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34 indicated that none of their clinic sites provided abortions with non-federal funds; 3 responses
had no numerical data or said the information was unknown.
Title X supporters argue that family planning reduces unintended pregnancies, thereby reducing
abortion.71 HHS estimates that Title X family planning services helped avert 996,000 unintended
pregnancies in 2010.72 The Guttmacher Institute estimates that clinics receiving Title X funds
helped avert 406,200 abortions in 2008.73
On the other hand, Title X critics argue that federal funds should be withheld from any
organization that performs or promotes abortions, such as the Planned Parenthood Federation of
America. These critics argue that federal funding for non-abortion activities frees up Planned
Parenthood’s other resources for its abortion activities.74 Some critics also argue that if a family
planning program is operated by an organization that also performs abortions, the implicit
assumption and the message to clients is that abortion is a method of family planning.75
Teenage Pregnancy and Title X
In 2010, 22% of Title X clients were aged 19 or younger.76 Critics argue that by funding Title X,
the federal government is implicitly sanctioning nonmarital sexual activity among teens. These
critics argue that a reduced teenage pregnancy rate could be achieved if family planning programs
emphasized efforts to convince teens to delay sexual activity, rather than efforts to decrease the
percentage of sexually active teens who become pregnant.77 (See CRS Report RS20301, Teenage
Pregnancy Prevention: Statistics and Programs, by Carmen Solomon-Fears, for a broader
discussion of teen pregnancy.)
71
Examples of this argument can be found in Rachel Benson Gold, Adam Sonfield, and Cory L. Richards, et al., Next
Steps for America’s Family Planning Program: Leveraging the Potential of Medicaid and Title X in an Evolving
Health Care System, Guttmacher Institute, New York, 2009, pp. 16-17, http://www.guttmacher.org/pubs/
NextSteps.pdf, and in U.S. Congress, Senate Committee on Appropriations, Subcommittee on Labor, Health and
Human Services, Education, and Related Agencies, Threat to Title X and Other Women’s Health Services, 104th Cong.,
1st sess., August 10, 1995, S.Hrg. 104-416 (Washington: GPO, 1996), pp. 16-21.
72
HHS, HRSA, Fiscal Year 2013 Justification of Estimates for Appropriations Committees, p. 349.
73
Jennifer J. Frost, Stanley K. Henshaw, and Adam Sonfeld, Contraceptive needs and services: national and state
data, 2008 update, Guttmacher Institute, New York, NY, 2010, p. 16, http://www.guttmacher.org/pubs/win/
contraceptive-needs-2008.pdf.
74
Examples of this argument can be found in House debate, Congressional Record, daily edition, vol. 154, no. 112
(July 9, 2008), pp. H6320-H6326. In 2010, 329,445 abortion procedures were performed by Planned Parenthood
affiliates, comprising 3% of Planned Parenthood services that year, according to the Planned Parenthood Federation of
America, Planned Parenthood Services Fact Sheet, 2012, p. 2, http://www.plannedparenthood.org/files/PPFA/
PP_Services.pdf.
75
An example of these arguments can be found in U.S. Congress, Senate Committee on Appropriations, Subcommittee
on Labor, Health and Human Services, Education, and Related Agencies, Threat to Title X and Other Women’s Health
Services, pp. 22-35.
76
Christina Fowler, Stacey Lloyd, Julia Gable, Jiantong Wang, and Kathleen Krieger, Family Planning Annual Report:
2010 National Summary, p. 9.
77
An example of these arguments can be found in U.S. Congress, Senate Committee on Appropriations, Subcommittee
on Labor, Health and Human Services, Education, and Related Agencies, Threat to Title X and Other Women’s Health
Services, pp. 22-35.
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The program’s supporters, on the other hand, argue that the Title X program should be expanded
to serve more people in order to reduce the rate of unintended pregnancies. According to HHS, in
2010, Title X family planning services helped avert an estimated 219,000 unintended teen
pregnancies.78 Supporters of expanding family planning services argue that the United States has
a higher teen pregnancy rate than some countries (such as Sweden) where a similar percentage of
teens are sexually active, in part because U.S. teens use contraception less consistently.79
Confidentiality for Minors and Title X
Confidentiality is required for personal information about Title X services provided to
individuals.80 Regarding services to minors, Title X project guidelines state:
Adolescents must be assured that the counseling sessions are confidential and, if follow-up is
necessary, every attempt will be made to assure the privacy of the individual. However,
counselors should encourage family participation in the decision of minors to seek family
planning services and provide counseling to minors on resisting attempts to coerce minors
into engaging in sexual activities. Title X projects may not require written consent of parents
or guardians for the provision of services to minors. Nor can the project notify parents or
guardians before or after a minor has requested and received Title X family planning
services.81
Although minors are to receive confidential services, Title X providers are not exempt from state
notification and reporting laws on child abuse, child molestation, sexual abuse, rape, or incest.82
As for payment of services provided to minors, Title X regulations indicate that “unemancipated
minors who wish to receive services on a confidential basis must be considered on the basis of
78
HHS, HRSA, Fiscal Year 2013 Justification of Estimates for Appropriations Committees, p. 349. See also the
discussion of publicly funded family planning services in “Programs to Reduce Unintended Pregnancy,” in The
Institute of Medicine, The Best Intentions: Unintended Pregnancy and the Well-Being of Children and Families
(Washington: National Academy Press, 1995), p. 220, http://www.nap.edu/catalog.php?record_id=4903.
79
An example of these arguments can be found in U.S. Congress, Senate Committee on Appropriations, Subcommittee
on Labor, Health and Human Services, Education, and Related Agencies, Threat to Title X and Other Women’s Health
Services, pp. 16-21. See also Jacqueline E. Darroch, et al., “Differences in Teenage Pregnancy Rates Among Five
Developed Countries: The Roles of Sexual Activity and Contraceptive Use,” Family Planning Perspectives, vol. 33,
no. 6 (November/December 2001), pp. 244-251.
80
42 C.F.R. §59.11. Also, several court cases have interpreted Title X statute as supporting confidentiality for minors;
see Glenn A. Guarino, “Provision of family planning services under Title X of Public Health Service Act (42 U.S.C.A.
§300-300a-8) and implementing regulations,” American Law Reports Federal, 1985, 71 A.L.R. Fed. 961.
81
HHS, Office of Family Planning, Program Guidelines For Project Grants For Family Planning Services, January
2001, p. 25, http://www.hhs.gov/opa/title-x-family-planning/title-x-policies/program-guidelines/. For an overview of
Title X efforts to encourage family participation, see RTI International, An Assessment of Parent Involvement
Strategies in Programs Serving Adolescents: Final Report, 2007, http://www.hhs.gov/opa/pdfs/parent-involvementfinal-report.pdf. The report found that parent involvement is associated with several positive outcomes, such as delayed
sexual initiation and lower rates of pregnancy and sexually transmitted infections.
82
P.L. 112-74, Division F, Departments of Labor, Health and Human Services, and Education, and Related Agencies
Appropriations Act, 2010, Title II, Department of Health and Human Services, §210, 125 Stat. 1083. OPA Program
Instruction Series, OPA 11-01: Title X Grantee Compliance with Grant Requirements and Applicable Federal and
State Law, including State Reporting Laws, Letter from Marilyn J. Keefe, Deputy Assistant Secretary for Population
Affairs, to Regional Health Administrators, Regions I-X; Title X Grantees, March 1, 2011, http://www.hhs.gov/opa/
pdf/opa-11-01-program-instruction-re-compliance.pdf.
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their own resources.”83 The project guidelines instruct that “Eligibility for discounts for minors
who receive confidential services must be based on the income of the minor.”84
Supporters of confidentiality argue that parental notification or parental consent requirements
would lead some sexually active adolescents to delay or forgo family planning services, thereby
increasing their risk of pregnancy or sexually transmitted diseases.85
Critics argue that confidentiality requirements can interfere with parents’ right to know of and to
guide their children’s health care. Some critics also disagree with discounts for minors without
regard to parents’ income, because the Title X program was intended to serve “low-income
families.”86
Planned Parenthood and Title X
The Planned Parenthood Federation of America (PPFA) operates through a national office and 77
affiliates, which operate nearly 800 local health centers.87 Affiliates participating in Title X can
receive funds directly from HHS or indirectly from other Title X grantees, such as their state or
local health departments. PPFA and its affiliates receive about $66 million in annual Title X
funding, according to the PPFA Washington Office.88
In May 2010, the Government Accountability Office (GAO) released a report with data on the
obligations and expenditures of federal funds for several nonprofit organizations, including PPFA
and its affiliates.89
According to the GAO report, in FY2009, HHS reported obligating to Planned Parenthood and its
affiliates $18.2 million through the Title X Family Planning Services program and $0.3 million
through Title X Family Planning Service Delivery Improvement Research Grants.90 These figures
reflect funds that HHS provided directly to these organizations. They do not include Title X funds
83
42 C.F.R. §59.2.
HHS, Office of Family Planning, Program Guidelines For Project Grants For Family Planning Services, January
2001, p. 8.
85
An example of this argument is in Rachel K. Jones, Alison Purcell, and Susheela Singh et al., “Adolescents’ Reports
of Parental Knowledge of Adolescents’ Use of Sexual Health Services and Their Reactions to Mandated Parental
Notification for Prescription Contraception,” JAMA, vol. 293, no. 3 (January 19, 2005), pp. 340-348. See also the staff
quotations in RTI International, An Assessment of Parent Involvement Strategies in Programs Serving Adolescents:
Final Report, 2007, pp. 5-10.
86
Examples of these arguments appear in Congressional Record, daily edition, vol. 142 (July 11, 1996), pp. H7348-H
7349, and U.S. Congress, Senate Committee on Appropriations, Subcommittee on Labor, Health and Human Services,
Education, and Related Agencies, Threat to Title X and Other Women’s Health Services, 104th Cong., 1st sess., August
10, 1995, S.Hrg. 104-416 (Washington: GPO, 1996), pp. 22-23. See also the discussion in RTI International, An
Assessment of Parent Involvement Strategies in Programs Serving Adolescents: Final Report, 2007, pp. 5-9.
87
Planned Parenthood Federation of America, Planned Parenthood at a Glance, http://www.plannedparenthood.org/
about-us/who-we-are/planned-parenthood-glance-5552.htm.
88
E-mail from Ellen Weissfeld, Public Policy Coordinator, Planned Parenthood Federation of America, April 12, 2011.
89
U.S. Government Accountability Office (GAO), Federal Funds: Fiscal Years 2002-2009 Obligations,
Disbursements, and Expenditures for Selected Organizations Involved in Health-Related Activities, GAO-10-533R,
May 28, 2010, http://www.gao.gov/products/GAO-10-533R.
90
GAO, Federal Funds: Fiscal Years 2002-2009 Obligations, Disbursements, and Expenditures for Selected
Organizations Involved in Health-Related Activities, p. 16.
84
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that reached Planned Parenthood or its affiliates indirectly through subgrants or that passed
through from state agencies or other organizations.
The GAO report also showed Planned Parenthood’s expenditures of Title X funds. These
expenditures were identified through audit reports that Planned Parenthood and its affiliates
submitted to comply with Office of Management and Budget (OMB) audit requirements.91
Expenditures include federal funds provided directly or indirectly to these organizations. The
most recent expenditure data were from FY2008, when Planned Parenthood and its affiliates
reported spending $53 million from the Title X Family Planning Services program.92
Provider Conscience Rule
Overview
Several already existing federal restrictions protect health care providers from being coerced to
provide certain services to which they object. These statutory restrictions prohibit recipients of
certain federal funds from discriminating against such providers. These restrictions include the
Church Amendment (which protects those with religious or moral objections to abortion and
sterilization), Public Health Service (PHS) Act Section 245 (which protects certain individuals,
medical schools, and training programs that will not provide, perform, make arrangements for, or
refer for abortions or abortion training), and the Weldon Amendment (which protects certain
entities that will not provide, pay for, provide coverage for, or refer for abortions).93
In the December 19, 2008, Federal Register, HHS published a final rule, often called the provider
conscience rule, that was intended to increase awareness of these existing restrictions.94 Some
critics argued that the rule would limit patients’ access to contraception, and that it conflicted with
the Title X requirement that grantees provide pregnant women, upon request, nondirective
counseling and referrals on several options including abortion.
The rule became effective January 20, 2009. In the March 10, 2009, Federal Register, HHS
proposed to rescind the provider conscience rule and invited public comments.95
91
Organizations with annual expenditures of federal funds of $500,000 or more are required to have an audit. The
GAO report includes expenditure data from 85 Planned Parenthood affiliates. GAO, Federal Funds: Fiscal Years
2002-2009 Obligations, Disbursements, and Expenditures for Selected Organizations Involved in Health-Related
Activities, p. 10 footnote b, p. 22 footnote 1.
92
GAO, Federal Funds: Fiscal Years 2002-2009 Obligations, Disbursements, and Expenditures for Selected
Organizations Involved in Health-Related Activities, p. 25.
93
More background about these and other federal provider conscience provisions is in CRS Report R40722, Health
Care Providers’ Religious Objections to Medical Treatment: Legal Issues Related to Religious Discrimination in
Employment and Conscience Clause Provisions, by Cynthia Brougher and Edward C. Liu, and CRS Report RL34703,
The History and Effect of Abortion Conscience Clause Laws, by Jon O. Shimabukuro. See also HHS, Office for Civil
Rights (OCR), Overview of Federal Statutory Health Care Provider Conscience Protections, http://www.hhs.gov/ocr/
civilrights/faq/providerconsciencefaq.html, and Federal Health Care Conscience Protection Statutes,
http://www.hhs.gov/ocr/civilrights/understanding/ConscienceProtect/index.html.
94
U.S. Department of Health and Human Services, “Ensuring Department of Health and Human Services Funds Do
Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law,” 73 Federal Register
78072–78101, December 19, 2008, http://federalregister.gov/a/E8-30134.
95
HHS, “Rescission of the Regulation Entitled ‘Ensuring That Department of Health and Human Services Funds Do
(continued...)
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In the February 23, 2011, Federal Register, HHS rescinded most of the rule, except for a
provision that the HHS Office for Civil Rights will handle complaints based on federal health
care provider conscience protection restrictions. HHS stated that parts of the 2008 rule were
“unclear and potentially overbroad in scope,” and noted that the rescission “does not alter or
affect the federal statutory health care provider conscience protections” that already exist.96
2008 Rule
The 2008 provider conscience rule stated that entities carrying out HHS health service programs
shall not require individuals “to perform or assist in the performance of any part of a health
service program or research activity funded by the Department if such service or activity would
be contrary to his religious beliefs or moral convictions.”97 The rule defined assist in the
performance as participating in any activity with a “reasonable connection” to the objectionable
procedure or health service, including “counseling, referral, training, and other arrangements” for
the procedure or health service.98
The rule prohibited recipients of HHS appropriations act funds from subjecting institutions or
individuals to discrimination because they did not refer patients for abortions.99 Also, the rule
prohibited recipients of grants under the Public Health Service Act from discriminating against
physicians or other health care professionals because they refused to assist in the performance of
sterilization or abortion based on religious beliefs or moral convictions.100
Before publishing the final rule, HHS solicited public comments.101 Some commenters argued
that the rule was inconsistent with the Title X regulatory requirement that grantees provide
pregnant women, upon request, nondirective counseling and referrals on several options including
abortion.102 The Title X requirement states that if the woman requests such information and
counseling, the project must give “neutral, factual information and nondirective counseling on
each of the options, and referral upon request, except with respect to any option(s) about which
the pregnant woman indicates she does not wish to receive such information and counseling.”103
(...continued)
Not Support Coercive or Discriminatory Support Coercive or Discriminatory Federal Law’; Proposal,” 74 Federal
Register 10207-10211, March 10, 2009, http://federalregister.gov/a/E9-5067. Many of the public comments are posted
at http://www.regulations.gov/#!docketDetail;D=HHS-OPHS-2009-0001.
96
HHS, “Regulation for the Enforcement of Federal Health Care Provider Conscience Protection Laws,” 76 Federal
Register 9969, February 23, 2011, http://federalregister.gov/a/2011-3993.
97
73 Federal Register 79097, 79098, §88.3(g)(1), §88.4(d)(1).
98
73 Federal Register 78097, §88.2.
99
73 Federal Register78097, 78098, §88.3(c), §88.4(b)(2).
100
73 Federal Register78097, 78098, §88.3(f)(1), §88.4(c)(1).
101
Comments may be viewed at http://www.regulations.gov/#!docketDetail;D=HHS-OS-2008-0011. (Check the
“Public Submissions” box).
102
Examples of such comments include Letter from Sharon L. Camp, President and CEO, Guttmacher Institute, to
HHS, September 24, 2008, http://www.guttmacher.org/media/resources/2008/09/24/GuttmacherInstitute-reConscienceRegulation.pdf, and Letter from Caroline Fredrickson, Director, Washington Legislative Office, American
Civil Liberties Union (ACLU), Louise Melling, Director, Reproductive Freedom Project, ACLU, and Vania Leveille,
Washington Legislative Office, ACLU et al. to HHS, September 25, 2008, http://www.aclu.org/images/
asset_upload_file467_36942.pdf.
103
42 C.F.R. §59(a)(5).
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HHS responded that the provider conscience requirement did indeed conflict with the Title X
requirement, so that in certain situations, OPA would not enforce the Title X referral regulation:
With regards to the Title X program, Commenters are correct that the current regulatory
requirement that grantees must provide counseling and referrals for abortion upon request
(42 C.F.R. 59.5(a)(5)) is inconsistent with the health care provider conscience protection
statutory provisions and this regulation. The Office of Population Affairs, which administers
the Title X program, is aware of this conflict with the statutory requirements and, as such,
would not enforce this Title X regulatory requirement on objecting grantees or applicants.104
The 2008 rule did not define the term abortion. Some commenters argued that by not defining
abortion as excluding contraception, the rule could jeopardize Title X programs. HHS responded
that “questions over the nature of abortion and the ending of a life are highly controversial and
strongly debated,” and so declined to issue a formal definition. HHS added that “nothing in this
rule alters the obligation of federal Title X programs to deliver contraceptive services to clients in
need as authorized by law and regulation.”105
Some commenters argued that the rule would make it difficult for Title X clinics to screen job
applicants to ensure that staff were willing to provide contraceptive services. HHS responded that
job applicants would be unlikely to apply for, or be best qualified for, jobs where they object to
the majority of the work. HHS explained further:
To the extent a health care employer’s adverse decision is based on an applicant’s inability to
perform the essential functions of a job, the decision would not typically constitute
discrimination under the regulation even if the applicant had expressed an unwillingness to
perform those functions on conscience grounds. However, an adverse decision predicated on
an applicant’s alleged ‘‘inability’’ could constitute unlawful discrimination if the employer’s
stated reasons are pretextual; for example, if the employer is using the definition of essential
functions as a pretext for excluding applicants with certain religious beliefs or moral
convictions.106
In response to comments that the rule would restrict patients’ access to contraception, HHS
responded that “we have found no evidence that these regulations will create new barriers in
accessing contraception unless those contraceptives are currently delivered over the religious or
moral objections of the provider.”107
2011 Rule Rescission
In the February 23, 2011, Federal Register, HHS rescinded most of the 2008 final rule, except for
a provision that the HHS Office for Civil Rights (OCR) will coordinate the handling of
complaints based on federal provider conscience statutory restrictions.108 HHS stated that “No
104
73 Federal Register 78087.
73 Federal Register 78077.
106
73 Federal Register 78084-78085.
107
73 Federal Register 78071-78072.
108
HHS explained that the enforcement of statutory provider conscience protections would include “normal program
compliance mechanisms.” For example, HHS is expected to help violating entities come into compliance, and if entities
still fail to comply, HHS “will consider all legal options,” such as the termination of funds and the return of funds paid
out in violation of the conscience statutes. HHS also stated that it is starting an initiative to increase awareness of
(continued...)
105
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regulations were required or necessary for the conscience protections contained in the Church
Amendments, PHS Act, Section 245, and the Weldon Amendment to take effect,” and that the
rule rescission does not affect existing provider conscience statutory restrictions.109
As discussed above in “2008 Rule,” some commenters had raised concerns about possible
conflicts between the 2008 Rule and requirements governing certain HHS programs, including
Title X. In the 2011 rule rescission, HHS stated that such conflicts would be addressed on a caseby-case basis:
Health care entities must continue to comply with the long-established requirements of the
statutes above governing Departmental programs. These statutes strike a careful balance
between the rights of patients to access needed health care, and the conscience rights of
health care providers. The conscience laws and the other federal statutes have operated side
by side often for many decades. As repeals by implication are disfavored and laws are meant
to be read in harmony, the Department fully intends to continue to enforce all the laws it has
been charged with administering. The Department is partially rescinding the 2008 final rule
in an attempt to address ambiguities that may have been caused in this area. The approach of
a case by case investigation and, if necessary, enforcement will best enable the Department
to deal with any perceived conflicts within concrete situations.110
As discussed in “2008 Rule,” some commenters had raised concerns that the 2008 rule did not
define “abortion” as excluding contraception. In rescinding the rule, HHS stated that “The
provision of contraceptive services has never been defined as abortion in federal statute. There is
no indication that the federal health care provider conscience statutes intended that the term
‘abortion’ included contraception.”111
As discussed in “2008 Rule,” some commenters had raised concerns that the 2008 rule could
restrict some patients’ access to contraception. HHS stated that it rescinded the rule in part
because it “had the potential to negatively impact patient access to contraception and certain other
medical services without a basis in federal conscience protection statutes.” HHS reiterated that
entities should continue to comply with their Title X obligations.112
(...continued)
federal provider conscience protections among grantees and health care providers. OCR includes provider conscience
information in its education and outreach efforts and on its website, and HHS is amending its grant documents to
clarify that recipients must comply with federal conscience protection laws. HHS, “Regulation for the Enforcement of
Federal Health Care Provider Conscience Protection Laws,” 76 Federal Register 9972, February 23, 2010.
109
76 Federal Register 9969, 9970.
110
76 Federal Register 9973.
111
76 Federal Register 9973.
112
76 Federal Register 9974.
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Legislation in the 112th Congress
Several bills on the Title X program have been introduced in the 112th Congress.
Abortion Restrictions
H.R. 217, the Title X Abortion Provider Prohibition Act, was introduced January 7, 2011. The bill
would prohibit Title X assistance to any entity unless it certifies that it will not perform, nor
provide funds to any other entity that performs, an abortion during the period of assistance. The
prohibition would not apply to hospitals, unless the hospital provides funds to a non-hospital
entity that performs an abortion. The bill has exceptions for abortions performed in cases of rape,
incest against a minor, or certain physician-certified cases where the woman is “in danger of
death unless an abortion is performed.” H.R. 217 would also require the HHS Secretary to
provide Congress an annual report listing, for each entity receiving a Title X grant: information
on any abortions it performed, the date that it last certified that it would not perform abortions,
and any other entities to which it makes available funds received through Title X grants. The bill
was referred to the House Committee on Energy and Commerce.
S. 96, the Title X Family Planning Act, was introduced January 25, 2011. It would prohibit Title
X funds from going to entities that perform abortions or whose subgrantees perform abortions,
except in certain physician-certified cases where the woman is “in danger of death unless an
abortion is performed.” This prohibition would not apply to hospitals, unless the hospital
subgrants to a non-hospital entity that performs abortions. S. 96 would require Title X grant
applicants to certify that they and their subgrantees adhere to the abortion prohibition. It would
also require the HHS to provide Congress with an annual list of Title X grantees that perform
abortions; if an entity appears on the list, it would be ineligible for subsequent fiscal year Title X
funds unless it certifies that it no longer performs abortions. S. 96 was referred to the Senate
Committee on Health, Education, Labor, and Pensions.
Other bills related to abortion are discussed in CRS Report RL33467, Abortion: Judicial History
and Legislative Response, by Jon O. Shimabukuro.
Elimination of Title X Funds
H.R. 1, the Full-Year Continuing Appropriations Act, 2011, passed the House on February 19,
2011, and failed to pass the Senate on March 9, 2011. It would have eliminated funding for Title
X for the remainder of FY2011. During House debate on H.R. 1, three amendments were
submitted that would have struck the language eliminating funds for Title X.113 One of those
amendments would have also maintained FY2011 Title X funding at the FY2010 level of
$317.491 million.114 These amendments did not see floor action. During Senate debate on H.R. 1,
S.Amdt. 149 was defeated; it was a substitute amendment that would have continued funding
Title X for the remainder of FY2011 at the same rate of operations and under the same conditions
as in FY2010. On April 15, 2011, P.L. 112-10, the Department of Defense and Full-Year
113
Amendment no. 335, House amendments, Congressional Record, daily edition, February 14, 2011, p. H794;
Amendment no. 386, House amendments, Congressional Record, daily edition, February 14, 2011, p. H796;
Amendment no. 505, House amendments, Congressional Record, daily edition, February 15, 2011, p. H929.
114
Amendment no. 335, House amendments, Congressional Record, daily edition, February 14, 2011, p. H794.
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Continuing Appropriations Act, 2011, became law; it provided $299.400 million for Title X in
FY2011.115
H.R. 408, the Spending Reduction Act of 2011, was introduced January 24, 2011. It would
eliminate the Title X program, stating that “No funds appropriated or otherwise available to any
Federal department or agency may be obligated or expended for” a list of programs including
Title X. It was referred to the House Committees on Oversight and Government Reform, Natural
Resources, Transportation and Infrastructure, Budget, Rules, Appropriations, Agriculture,
Administration, Education and the Workforce, Energy and Commerce, Ways and Means,
Financial Services, Judiciary, and Science, Space, and Technology.
S. 178, the Spending Reduction Act of 2011, was introduced January 25, 2011. It would eliminate
the Title X program, stating that “No funds appropriated or otherwise available to any Federal
department or agency may be obligated or expended for” a list of programs including Title X. It
was referred to the Senate Committee on Finance.
H.R. 1099, the Taxpayers’ Freedom of Conscience Act of 2011, was introduced March 15, 2011.
It would prohibit federal officials from expending federal funds for “any population control or
population planning program or any family planning activity (including any abortion procedure),
irrespective of whether such program or activity is foreign or domestic.” H.R. 1099 was referred
to the House Committees on Foreign Affairs and Energy and Commerce.
H.R. 3070, the Departments of Labor, Health and Human Services, and Education, and Related
Agencies Appropriations Act, 2012, was introduced September 29, 2011. The act’s funds would
be prohibited from being used to carry out Title X of the Public Health Service Act. H.R. 3070
was referred to the House Committee on Appropriations.
On July 18, 2012, the House Appropriations Subcommittee on Labor, Health and Human
Services, Education, and Related Agencies approved a draft FY2013 Labor-HHS-Education
bill.116 The bill’s funds would be prohibited from being used to carry out Title X of the Public
Health Service Act.
Public Disclosure of Audits
S. 814, the Title X Transparency and Verification Act, was introduced April 13, 2011. It would
require disclosure on the HHS website of the results of any audits conducted under Title X on any
entity receiving Title X funds. S. 814 was referred to the Senate Committee on Health, Education,
Labor, and Pensions.
115
Section 1810 provides $300 million for Title X in FY2011. Section 1119 rescinds 0.2% across-the-board from most
non-defense items including Title X.
116
U.S. Congress, House Committee on Appropriations, Subcommittee on Labor, Health and Human Services,
Education, and Related Agencies, Making appropriations for the Departments of Labor, Health and Human Services,
and Education, and related agencies for the fiscal year ending September 30, 2012, and for other purposes, Draft bill,
112th Cong., 2nd sess., July 15, 2012, Sec. 219, p. 85, http://appropriations.house.gov/uploadedfiles/bills-112hr-sc-apfy13-laborhhsed.pdf.
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Title X (Public Health Service Act) Family Planning Program
Nondiscrimination on the Basis of Abortion Provision with NonTitle X Funds
H.R. 5650, the Protecting Women’s Access to Health Care Act, was introduced May 9, 2012. It
would prohibit Title X grantees and contractors from discriminating against a health care entity
on the basis of whether it separately provides or refers for abortions, provides employees
coverage of abortions, or provides or requires training in performing abortions. H.R. 5650 was
referred to the House Committee on Energy and Commerce.
Limits on Means-Tested Welfare Spending
H.R. 1135, H.R. 1167, and S. 1904, all titled the Welfare Reform Act of 2011, would define
“means-tested welfare spending” programs to include family planning, as well as more than 70
other federal programs. The bills would require a limit on aggregate means-tested welfare
spending, no greater than the FY2007 level, adjusted for inflation. The limit would be enforced
through the congressional budget process. Under H.R. 1135 and H.R. 1167, this limit would
become effective “after any monthly rate of unemployment during the immediately preceding
fiscal year is below 6.5 percent.” Under S. 1904, this limit would become effective in FY2015 or
“after any monthly rate of unemployment during the immediately preceding fiscal year is below
7.5%,” whichever is earlier. Among other provisions, the bills would also require the President’s
Budget to provide information on total means-tested welfare spending. H.R. 1135 was introduced
March 16, 2011, and referred to the House Committees on Ways and Means, Agriculture, the
Budget, Rules, and Energy and Commerce. H.R. 1167 was introduced March 17, 2011, and
referred to the same committees. S. 1904 was introduced November 17, 2011, and referred to the
Senate Committee on Finance.
Restrictions on Funding to Planned Parenthood
H.Con.Res. 36 would have directed the House Clerk to make a correction in the enrollment of
H.R. 1473, the Department of Defense and Full-Year Continuing Appropriations Act, 2011.117 It
would have prohibited funds under H.R. 1473 from being made available “for any purpose” to the
Planned Parenthood Federation of America or any of its affiliates. On April 14, 2011, H.Con.Res.
36 passed the House and was defeated in the Senate.
H.Amdt. 95 to H.R. 1, the Full-Year Continuing Appropriations Act, 2011, would have prohibited
the bill’s funds from being made available “for any purpose” to PPFA or to any of 102 affiliates
and offices listed in the amendment.118 The House agreed to the amendment on February 18,
2011. H.R. 1 passed the House on February 19, 2011, and failed to pass the Senate on March 9,
2011. During Senate debate on H.R. 1, S.Amdt. 149 was defeated; it was a substitute amendment
that did not mention Planned Parenthood and that would not have eliminated funds for Planned
Parenthood. On April 15, 2011, P.L. 112-10, the Department of Defense and Full-Year Continuing
Appropriations Act, 2011, became law; it did not mention Planned Parenthood and did not
eliminate funds for Planned Parenthood.
117
H.R. 1473 became P.L. 112-10 on April 15, 2011.
Amendment no. 11, House amendments, Congressional Record, daily edition, February 14, 2011, pp. H776-H777.
The entities listed in the amendment were the same as those on the website Planned Parenthood Federation of America,
Local & State Offices, http://www.plannedparenthood.org/about-us/affiliate-and-state-offices.htm.
118
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H.R. 3070, the Departments of Labor, Health and Human Services, and Education, and Related
Agencies Appropriations Act, 2012, was introduced September 29, 2011. It would prohibit the
act’s funds from being made available “for any purpose” to PPFA or any of its affiliates and
clinics, unless they certify that PPFA affiliates and clinics will not perform an abortion, and will
not provide any funds to any other entity that performs an abortion. There are exceptions for rape,
incest, and certain physician-certified cases where the woman is “in danger of death unless an
abortion is performed.” The HHS Secretary would be required to “seek repayment of any Federal
assistance received by Planned Parenthood Federation of America, Inc., or any affiliate or clinic
of Planned Parenthood Federation of America, Inc., if it violates the terms of the certification
required by this section.” H.R. 3070 was referred to the House Committee on Appropriations.
On July 18, 2012, the House Appropriations Subcommittee on Labor, Health and Human
Services, Education, and Related Agencies approved a draft FY2013 Labor-HHS-Education
bill.119 The draft includes the same language as H.R. 3070 on restricting the act’s funds to PPFA
and its affiliates.
Maternity Care Home Demonstration
H.R. 3620/S. 1969, the Quality Care for Moms and Babies Act, would authorize a threeyear Maternity Care Home Demonstration Program. Title X clinics would be eligible to
participate. A maternity care home would be required to use practice innovations and coordination
agreements with other providers to improve the management and coordination of maternity
care for women, including family planning. H.R. 3620 was introduced December 8, 2011, and
referred to the House Committee on Energy and Commerce. S. 1969 was introduced December 8,
2011, and referred to the Senate Committee on Finance.
HIV/AIDS Provider Loan Repayment Program
H.R. 6138, Ending the HIV/AIDS Epidemic Act of 2012, would authorize an educational loan
repayment program for physicians, nurse practitioners, or physician assistants who serve at least
two years in an area with high HIV/AIDS incidence or at a Ryan White-funded or Title X-funded
facility with a critical shortage of doctors (as determined by the HHS Secretary). H.R. 6138 was
introduced July 18, 2012, and referred to the House Committees on Energy and Commerce,
Foreign Affairs, Education and the Workforce, Judiciary, Armed Services, Financial Services, and
Ways and Means.
119
U.S. Congress, House Committee on Appropriations, Subcommittee on Labor, Health and Human Services,
Education, and Related Agencies, Making appropriations for the Departments of Labor, Health and Human Services,
and Education, and related agencies for the fiscal year ending September 30, 2012, and for other purposes, Draft bill,
112th Cong., 2nd sess., July 15, 2012, Sec. 536, pp. 146-147, http://appropriations.house.gov/uploadedfiles/bills-112hrsc-ap-fy13-laborhhsed.pdf.
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Title X (Public Health Service Act) Family Planning Program
Appendix. Summary of Title X of the Public Health
Service Act
Below is a summary of Title X of the Public Health Service Act, codified at 42 U.S.C. Section
300 to Section 300a-6, Population Research and Voluntary Family Planning Programs:
Section 1001. Project Grants and Contracts for Family Planning
Services
The Secretary may make grants to and enter into contracts with public or nonprofit private
entities to assist in the establishment and operation of voluntary family planning projects to offer
a broad range of acceptable and effective family planning methods and services (including natural
family planning methods, infertility services, and services for adolescents). Entities which receive
grants or contracts must encourage family participation in their projects.
Section 1002. Formula Grants to States for Family Planning
Services120
The Secretary may make grants to state health authorities to assist in planning, establishing,
maintaining, coordinating, and evaluating family planning services. The state health authority
must have an approved state plan for a coordinated and comprehensive program of family
planning services.
Section 1003. Training Grants and Contracts
The Secretary may make grants to public or nonprofit private entities and enter into contracts
with public or private entities and individuals to provide the training for personnel to carry out
family planning service programs.
Section 1004. Research
The Secretary may conduct and make grants to public or nonprofit private entities and enter into
contracts with public or private entities and individuals for projects for research in the
biomedical, contraceptive development, behavioral, and program implementation fields related to
family planning and population.
Section 1005. Informational and Educational Materials
The Secretary may make grants to public or nonprofit private entities and enter into contracts
with public or private entities and individuals to assist in developing and making available family
120
These formula grants, which were authorized for FY1971-FY1973, were never funded. S.Rept. 101-95, pp. 5, 10.
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planning and population growth information (including educational materials) to all persons
desiring such information.
Section 1006. Regulations and Payments
The Secretary may promulgate regulations and must determine the conditions for making
payments to grantees to assure that such grants will be effectively utilized for the purposes they
were made.
Grantees must assure that (1) priority will be given to the furnishing of services to persons from
low-income families; and (2) no charge will be made in such project or program for services
provided to any person from a low-income family except to the extent that payment will be made
by a third party (including a government agency) which is authorized or is under legal obligation
to pay the charge.
The Secretary must be satisfied that informational or educational materials developed or made
available under the grant or contract will be suitable for the purposes of this title and for the
population or community to which they are to be made available.
In the case of any grant or contract under Section 1001, such assurances shall provide for the
review and approval of the suitability of such materials, prior to their distribution, by an advisory
committee established by the grantee or contractor in accordance with regulations.
Section 1007. Voluntary Participation
The acceptance by any individual of family planning services or family planning or population
growth information (including educational materials) shall be voluntary and shall not be a
prerequisite to eligibility for or receipt of any other service or assistance from, or to participation
in, any other program of the entity or individual that provided such service or information.
Section 1008. Prohibition of Abortion
None of the funds appropriated under this title shall be used in programs where abortion is a
method of family planning.
Author Contact Information
Angela Napili
Information Research Specialist
anapili@crs.loc.gov, 7-0135
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