Updated February 18, 2021
Title X Family Planning Program: 2019 Final Rule
The Title X Family Planning Program (Title X) is the only
other things, an array of “acceptable and effective choices,
domestic federal program devoted solely to family planning
which may range from choosing not to have sex to the use
and related preventive health services. The program
of other family planning methods and services to limit or
provides grants to public and nonprofit agencies to establish
enhance the likelihood of conception (including
and maintain family planning projects (Title X projects). A
contraceptive methods and natural family planning or other
Title X grantee can undertake a Title X project that has
fertility awareness-based methods) and the management of
several participating entities. For example, a state-agency
infertility (including adoption).”
grantee can have a Title X project that supports the state’s
local organizations and clinics.
Scope of Family Planning Services
Prior regulation. Prior regulations required Title X
In the March 4, 2019, Federal Register, the Department of
projects to“[p]rovide a broad range of acceptable and
Health and Human Services (HHS) published a final rule
effective medically approved family planning methods
for the program, https://go.usa.gov/xEdTp. Among other
(including natural family planning methods) and services
things, it prohibits Title X projects from referring clients for
(including infertility services and services for adolescents).
abortion as a method of family planning. It also requires
If a health care entity offers only a single method of family
physical and financial separation between Title X projects
planning, it may participate as part of a project as long as
and certain abortion-related activities. For a redline
the entire project offers a broad range of family planning
document showing how the rule changed prior regulations,
services.”
see https://go.usa.gov/xAFQA.
2019 rule. The rule requires Title X projects to “[p]rovide a
Status of the Final Rule
broad range of acceptable and effective family planning
HHS required compliance with the final rule starting July
methods (including contraceptives, natural family planning
15, 2019, except for the physical separation requirements,
or other fertility awareness-based methods) and services
for which compliance was required by March 4, 2020. The
(including infertility services, information about or referrals
rule was challenged in several lawsuits across the country,
for adoption, and services for adolescents).” The rule does
but took effect in all states except Maryland, where it was
not require family planning methods and services to be
enjoined. Future court rulings could affect the rule’s further
“medically approved.” The rule does not require Title X
implementation, see https://go.usa.gov/xVX4t.
projects to provide every acceptable and effective family
planning method or service. The rule states that “[a]
On January 28, 2021, President Biden released a
participating entity may offer only a single method or a
memorandum stating that “The Secretary of Health and
limited number of methods of family planning as long as
Human Services shall review the Title X Rule and any other
the entire project offers a broad range of such family
regulations governing the Title X program that impose
planning methods and services.”According to the preamble,
undue restrictions on the use of Federal funds or women’s
the rule allows participation by clinics that, “for reasons of
access to complete medical information and shall consider,
conscience,” limit the services they offer.
as soon as practicable, whether to suspend, revise, or
rescind, or publish for notice and comment proposed rules
Physical and Financial Separation
suspending, revising, or rescinding, those regulations,
By law, Title X funds may not be used in projects where
consistent with applicable law, including the Administrative
abortion is a method of family planning (42 U.S.C. 300a-6).
Procedure Act,” see https://go.usa.gov/xAJKC.
Prior guidance. Prior program guidance interpreted the law
Overview of the 2019 Final Rule
as requiring that a grantee’s abortion activities be “separate
This section summarizes selected regulatory changes made
and distinct” from its Title X project activities. Under prior
by the final rule.
guidance, a grantee’s abortion activities and its Title X
project activities could share a common facility, a common
Family Planning Definition
waiting room, common staff, and a common records
Prior regulation. Prior regulations did not define “family
system, “so long as it is possible to distinguish between the
planning.”
Title X supported activities and non-Title X abortion-
related activities,” for example, through allocating and
2019 rule. The rule introduces a new definition of family
prorating costs, see https://go.usa.gov/xEdtA.
planning, referring to it as “the voluntary process of
identifying goals and developing a plan for the number and
2019 rule. The rule requires Title X projects to be
spacing of children and the means by which those goals
“physically and financially separate” from prohibited
may be achieved.” Family planning can include, among
activities, including providing, referring, encouraging,
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Title X Family Planning Program: 2019 Final Rule
promoting, or advocating for abortion. The rule requires,
to counsel minors on how to resist attempted coercion into
for example, separate facilities (including exam and waiting
sexual activity, and to comply with all state and local laws
rooms, entrances and exits, and websites), separate staff,
on notification or reporting of child abuse, child
separate accounting and medical records, and separate
molestation, sexual abuse, rape, and incest.
workstations. Title X funds cannot be used to build
infrastructure for prohibited abortion-related activities. The
2019 rule. The rule does not change the law, but it adds a
preamble to the rule states that abortion-providing
new regulation that Title X projects must conduct a
organizations may still apply for and receive Title X grants,
preliminary screening of any minor client with a sexually
provided they comply with the physical and financial
transmitted disease, pregnancy, or any suspicion of abuse,
separation requirements, and other Title X requirements.
in order to rule out victimization. The rule also has new
documentation requirements. For example, certain minors’
Primary Care Referrals
medical records must indicate their sexual partners’ ages.
Prior regulation. Prior regulations required Title X
Title X projects must also document, for each minor client,
projects to “provide for coordination and use of referral
either (1) the specific actions taken to encourage family
arrangements” with other health care providers.
participation or (2) the specific reason why such family
participation was not encouraged.
2019 rule. The rule encourages Title X projects to “offer
either comprehensive primary health services onsite or have
Free or Discounted Care Eligibility
a robust referral linkage with primary health providers who
Prior and current regulations. Clients are eligible for
are in close physical proximity” to the site.
free, discounted, or full-cost services, depending on their
income. Clients who the Title X project director determines
Services for Pregnant Clients
are unable, “for good reasons,” to pay for family planning
Prior regulation. Prior regulations required Title X
are also eligible for free or discounted services. For
projects to offer pregnant clients information and
example, for unemancipated minors who request
nondirective pregnancy counseling on each of these
confidential services, discounts are based on the minor’s
options: prenatal care and delivery; infant care, foster care,
own income.
or adoption; and abortion. Projects were also required to
provide referrals upon client request, including abortion
2019 rule. The rule allows, but does not require, Title X
referrals.
project directors to use the “good reasons” exception to
offer free or discounted contraceptive services to certain
2019 rule. The rule removes the requirements described
clients who cannot get job-based contraception coverage
above. It adds a new requirement that Title X projects must
due to their employer’s religious or moral objection. In such
refer pregnant clients “to a health care provider for
cases, the director would also consider the client’s total
medically necessary prenatal health care.” The preamble to
income and the out-of-pocket costs of contraception.
the rule states that prenatal care is medically necessary for
all pregnant clients.
Change in Title X Providers
According to the 2019 Family Planning Annual Report, “As
The rule allows Title X projects to refer pregnant clients to
a result of the Final Rule, 18 agencies representing 19
social services and adoption agencies, to provide pregnancy
grants and 231 subrecipients discontinued participation in
health information, and to provide a list of comprehensive
the Title X program; the number of Title X service sites
primary health care providers including prenatal care
was reduced by 945 sites,” see https://go.usa.gov/xGQXE.
providers. The rule permits, but does not require, the
The January 2021 Family Planning Directory listed no Title
abovementioned list to include some primary care providers
X sites in Hawaii, Maine, Oregon, Vermont, or
who also perform abortion. The list and project staff may
Washington, available at https://go.usa.gov/x7qrT.
not identify which providers on the list perform abortion.
The rule generally prohibits projects from referring patients
Congressional Activity
for abortion as a method of family planning. However, the
During the 116th Congress, the House Energy and
preamble to the rule states that abortion referrals are
Commerce Subcommittee on Oversight and Investigations
permitted in certain circumstances, including emergencies
held a June 19, 2019, hearing on the rule,
and cases of rape and incest. The rule permits, but does not
https://go.usa.gov/xdbVG. Also, during the 116th Congress,
require, physicians and advanced practice providers to give
the House passed two appropriations bills that would have
nondirective pregnancy counseling, which may include
prohibited the final rule’s implementation in FY2020 and
nondirective counseling on abortion. The preamble states
FY2021, respectively: the Labor, Health and Human
that nondirective counseling involves presenting options “in
Services, Education, Defense, State, Foreign Operations,
a factual, objective, and unbiased manner.”
and Energy and Water Development Appropriations Act,
2020 (H.R. 2740), and the Defense, Commerce, Justice,
Services for Minors
Science, Energy and Water Development, Financial
Current law and guidance. All Title X services are
Services and General Government, Labor, Health and
confidential, including services to minors. Title X projects
Human Services, Education, Transportation, Housing, and
may not require parental notification or parental consent for
Urban Development Appropriations Act, 2021 (H.R. 7617).
services to minors. However, Title X statutorily requires
Neither bill became law.
grantees, “[t]o the extent practical,” to encourage family
participation. Appropriations law requires Title X projects
Angela Napili, Senior Research Librarian
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Title X Family Planning Program: 2019 Final Rule

IF11142


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https://crsreports.congress.gov | IF11142 · VERSION 7 · UPDATED

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