March 20, 2019
Title X Family Planning Program: 2019 Final Rule
Introduction
planning, it may participate as part of a project as long as
On March 4, 2019, the Secretary of the Department of
the entire project offers a broad range of family planning
Health and Human Services (HHS) published a final rule on
services.”
the Title X Family Planning Program (Title X) in the
Federal Register (https://go.usa.gov/xEdTp). The rule
New regulation. The new rule does not require family
changes, among other things, how family planning projects
planning methods and services to be “medically approved.”
(Title X projects) provide family planning methods and
The rule also does not require Title X projects to provide
services to clients.
every acceptable and effective family planning method or
service. In addition, the rule does not change the
The Family Planning Services and Population Research Act
abovementioned criterion for participation. According to
of 1970 (P.L. 91-572, as amended) established the Family
the rule’s preamble, the rule allows participation by clinics
Planning Program under Title X of the Public Health
that, “for reasons of conscience,” limit the services they
Service Act. Administered by HHS, Title X provides grants
offer.
to public and nonprofit agencies to establish and maintain
Title X projects. Title X is the only domestic federal
Physical and Financial Separation
program devoted solely to family planning and related
Prior guidance. By law, Title X funds may not be used for
preventive health services. In 2017, the program served 4
abortion. Prior program guidance interpreted the law as
million clients through 3,858 Title X clinics. Congress
requiring that a grantee’s abortion activities be “separate
appropriated $286.5 million to the program for FY2019.
and distinct” from its Title X project activities. Under prior
guidance, a grantee’s abortion activities and its Title X
Overview of the New Rule
project activities could share a common facility, a common
This section summarizes selected regulatory changes made
waiting room, common staff, and a common records
by the final rule.
system, “so long as it is possible to distinguish between the
Title X supported activities and non-Title X abortion-
Family Planning Definition
related activities,” for example through allocating and pro-
Prior regulation. Prior regulations did not define “family
rating costs (https://go.usa.gov/xEdtA).
planning.”
New regulation. The new rule requires Title X projects to
New regulation. The final rule introduces a new definition
be “physically and financially separate” from prohibited
of family planning, referring to it as “the voluntary process
activities, including providing, referring, encouraging,
of identifying goals and developing a plan for the number
promoting, or advocating for abortion. The rule requires,
and spacing of children and the means by which those goals
for example, separate facilities (including exam and waiting
may be achieved.” Family planning can include, among
rooms, entrances and exits, and websites), separate staff,
other things, a range of “acceptable and effective choices,
separate accounting and medical records, and separate
which may range from choosing not to have sex to the use
workstations. Title X funds cannot be used to build
of other family planning methods and services to limit or
infrastructure for prohibited abortion-related activities.
enhance the likelihood of conception (including
contraceptive methods and natural family planning or other
The preamble to the final rule states that abortion-providing
fertility awareness-based methods) and the management of
organizations may still apply for and receive Title X grants,
infertility (including adoption).”
provided they comply with the physical and financial
separation requirements, and other Title X requirements.
Scope of Family Planning Services
A Title X grantee can undertake a Title X project that has
Referrals to Primary Care
several participating entities, organizations, and/or clinics.
Prior regulation. Prior regulations required Title X
A grantee that is a state agency, for example, can have a
projects to “provide for coordination and use of referral
Title X project that supports local entities, organizations,
arrangements” with other health care providers.
and clinics throughout the state.
New regulation. The new rule encourages Title X projects
Prior regulation. Prior regulations required Title X
to “offer either comprehensive primary health services
projects to“[p]rovide a broad range of acceptable and
onsite or have a robust referral linkage with primary health
effective medically approved family planning methods
providers who are in close physical proximity, to the Title
(including natural family planning methods) and services
X site.”
(including infertility services and services for adolescents).
If a health care entity offers only a single method of family
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Title X Family Planning Program: 2019 Final Rule
Services for Pregnant Clients
Eligibility for free or discounted care
Prior regulation. Prior regulations required Title X
Prior regulations. Clients are eligible for free, discounted,
projects to offer pregnant clients information and
or full-cost services, depending on their income. Clients
nondirective counseling on each of these options: prenatal
who the Title X project director determines are unable, “for
care and delivery; infant care, foster care, or adoption; and
good reasons,” to pay for family planning are also eligible
abortion. Projects were also required to provide referrals
for free or discounted services. For example, for
upon client request, including referral for abortion.
unemancipated minors who request confidential services,
eligibility for discounts must be based on the minor’s own
New regulation. The new rule removes the above
income.
requirements. It adds a new requirement that Title X
projects refer pregnant clients “to a health care provider for
New regulation. The rule allows, but does not require, Title
medically necessary prenatal health care.” The preamble to
X project directors to use the “good reasons” exception to
the rule states that prenatal care is medically necessary for
offer free or discounted contraceptive services to certain
all pregnant clients.
clients who cannot get job-based contraception coverage
due to their employer’s religious or moral objection. In such
The rule allows Title X projects to refer pregnant clients to
cases, the director would also consider the client’s total
social services and adoption agencies, to provide pregnancy
income and the out-of-pocket costs of contraception.
health information, and to provide a list of comprehensive
primary health care providers including prenatal care
Supporting and Opposing Views
providers. The rule permits, but does not require, the
Some stakeholders and Members of the 116th Congress
abovementioned list to include some primary care providers
have released statements applauding the rule, while others
who also perform abortion. The list and project staff may
have expressed concerns. Some supporters contend, for
not identify which providers on the list perform abortion.
example, that the rule
The rule permits, but does not require, physicians and
advanced practice providers to give nondirective pregnancy
better ensures compliance with the Title X statute on
counseling, which may include nondirective counseling on
abortion,
abortion. The preamble states that nondirective counseling
involves presenting options “in a factual, objective, and
improves conscience protections for providers
unbiased manner.”
participating in the program,
The new rule prohibits Title X projects from referring
encourages a broader and more diverse set of providers
patients for abortion as a means of family planning. The
to apply for and to participate in the program, and
preamble to the rule states that abortion referrals for
emergency care reasons are permitted. According to a
enhances protections for vulnerable clients, such as
footnote in the rule’s preamble, abortion referral may also
minors.
be permitted in certain cases of rape or incest.
Some of the rule’s critics contend, for example, that
Services for Minors
Current law and guidance. All Title X services are
HHS did not provide evidence of current projects’
confidential, including services to minors. Title X projects
noncompliance,
may not require parental notification or parental consent for
services to minors. However, Title X statutorily requires
the rule is a “gag rule” that can keep providers from
grantees, “[t]o the extent practical,” to encourage family
disclosing all relevant information to clients,
participation.
the rule may make it difficult for some specialized
Appropriations law requires Title X projects to counsel
family planning clinics (including some Planned
minors on how to resist attempted coercion into sexual
Parenthood clinics) to continue in the program, and
activity, and to comply with all state and local laws on
notification or reporting of child abuse, child molestation,
the rule might deter some minors from seeking services
sexual abuse, rape, and incest.
from or disclosing information to Title X providers.
New regulation. The new rule does not change the law, but
The abovementioned views are discussed in the preamble to
it adds a new regulation that Title X projects must conduct
the rule (https://go.usa.gov/xEdTp).
a preliminary screening of any minor client with a sexually
transmitted disease, pregnancy, or any suspicion of abuse,
Compliance Dates
in order to rule out victimization. The rule also has new
Title X projects must comply with the physical separation
documentation requirements. For example, certain minors’
requirements by March 4, 2020. Compliance dates for the
medical records must indicate their sexual partners’ ages.
rule’s other provisions are either May 3, 2019, or July 2,
Title X projects must also document, for each minor client,
2019, depending on the provision. Recently announced
either (1) the specific actions taken to encourage family
lawsuits could potentially affect the rule’s implementation.
participation or (2) the provider’s suspicion of abuse or
incest, and compliance with state and local reporting laws.
Angela Napili, Senior Research Librarian
Victoria L. Elliott, Analyst in Health Policy
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Title X Family Planning Program: 2019 Final Rule
IF11142
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