Updated February 25, 2021
Title X Family Planning Program: 2019 Final Rule
The Title X Family Planning Program (Title X) is the only
spacing of children and the means by which those goals
domestic federal program devoted solely to family planning
may be achieved.” Family planning can include, among
and related preventive health services. The program
other things, an array of “acceptable and effective choices,
provides grants to public and nonprofit agencies to establish
which may range from choosing not to have sex to the use
and maintain family planning projects (Title X projects). A
of other family planning methods and services to limit or
Title X grantee can undertake a Title X project that has
enhance the likelihood of conception (including
several participating entities. For example, a state-agency
contraceptive methods and natural family planning or other
grantee can have a Title X project that supports the state’s
fertility awareness-based methods) and the management of
local organizations and clinics.
infertility (including adoption).”
In the March 4, 2019, Federal Register, the Department of
Scope of Family Planning Services
Health and Human Services (HHS) published a final rule
Prior regulation. Title X projects were required
for the program, https://go.usa.gov/xEdTp. Among other
to“[p]rovide a broad range of acceptable and effective
things, it prohibits Title X projects from referring clients for
medically approved family planning methods (including
abortion as a method of family planning. It also requires
natural family planning methods) and services (including
physical and financial separation between Title X projects
infertility services and services for adolescents). If a health
and certain abortion-related activities. For a redline
care entity offers only a single method of family planning,
document showing how the rule changed prior regulations,
it may participate as part of a project as long as the entire
see https://go.usa.gov/xAFQA.
project offers a broad range of family planning services.”
Status of the Final Rule
2019 rule. The rule requires Title X projects to “[p]rovide a
HHS required compliance with the final rule starting July
broad range of acceptable and effective family planning
15, 2019, except for the physical separation requirements,
methods (including contraceptives, natural family planning
for which compliance was required by March 4, 2020. The
or other fertility awareness-based methods) and services
rule was challenged in several lawsuits across the country,
(including infertility services, information about or referrals
but took effect in all states except Maryland, where it was
for adoption, and services for adolescents).” The rule does
enjoined, see https://go.usa.gov/xVX4t. On February 22,
not require family planning methods and services to be
2021, the Supreme Court of the United States announced
“medically approved.” The rule does not require Title X
that it would hear oral argument on three cases that could
projects to provide every acceptable and effective family
affect the rule’s further implementation, see
planning method or service. The rule states that “[a]
https://go.usa.gov/xsWHQ.
participating entity may offer only a single method or a
limited number of methods of family planning as long as
On January 28, 2021, President Biden released a
the entire project offers a broad range of such family
memorandum stating that “The Secretary of Health and
planning methods and services.”According to the preamble,
Human Services shall review the Title X Rule and any other
the rule allows participation by clinics that, “for reasons of
regulations governing the Title X program that impose
conscience,” limit the services they offer.
undue restrictions on the use of Federal funds or women’s
access to complete medical information and shall consider,
Physical and Financial Separation
as soon as practicable, whether to suspend, revise, or
By law, Title X funds may not be used in projects where
rescind, or publish for notice and comment proposed rules
abortion is a method of family planning (42 U.S.C. 300a-6).
suspending, revising, or rescinding, those regulations,
consistent with applicable law, including the Administrative
Prior guidance. Program guidance interpreted the law as
Procedure Act,” see https://go.usa.gov/xAJKC.
requiring that a grantee’s abortion activities be “separate
and distinct” from its Title X project activities. Under prior
Overview of the 2019 Final Rule
guidance, a grantee’s abortion activities and its Title X
This section summarizes selected regulatory changes made
project activities could share a common facility, a common
by the final rule.
waiting room, common staff, and a common records
system, “so long as it is possible to distinguish between the
Family Planning Definition
Title X supported activities and non-Title X abortion-
Prior regulation. “Family planning” was not defined.
related activities,” for example, through allocating and
prorating costs, see https://go.usa.gov/xEdtA.
2019 rule. The rule introduces a new definition of family
planning, referring to it as “the voluntary process of
2019 rule. The rule requires Title X projects to be
identifying goals and developing a plan for the number and
“physically and financially separate” from prohibited
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Title X Family Planning Program: 2019 Final Rule
activities, including providing, referring, encouraging,
to counsel minors on how to resist attempted coercion into
promoting, or advocating for abortion. The rule requires,
sexual activity, and to comply with all state and local laws
for example, separate facilities (including exam and waiting
on notification or reporting of child abuse, child
rooms, entrances and exits, and websites), separate staff,
molestation, sexual abuse, rape, and incest.
separate accounting and medical records, and separate
workstations. Title X funds cannot be used to build
2019 rule. The rule does not change the law, but it adds a
infrastructure for prohibited abortion-related activities. The
new regulation that Title X projects must conduct a
preamble to the rule states that abortion-providing
preliminary screening of any minor client with a sexually
organizations may still apply for and receive Title X grants,
transmitted disease, pregnancy, or any suspicion of abuse,
provided they comply with the physical and financial
in order to rule out victimization. The rule also has new
separation requirements, and other Title X requirements.
documentation requirements. For example, certain minors’
medical records must indicate their sexual partners’ ages.
Primary Care Referrals
Title X projects must also document, for each minor client,
Prior regulation. Title X projects were required to
either (1) the specific actions taken to encourage family
“provide for coordination and use of referral arrangements”
participation or (2) the specific reason why such family
with other health care providers.
participation was not encouraged.
2019 rule. The rule encourages Title X projects to “offer
Free or Discounted Care Eligibility
either comprehensive primary health services onsite or have
Prior and current regulations. Clients are eligible for
a robust referral linkage with primary health providers who
free, discounted, or full-cost services, depending on their
are in close physical proximity” to the site.
income. Clients who the Title X project director determines
are unable, “for good reasons,” to pay for family planning
Services for Pregnant Clients
are also eligible for free or discounted services. For
Prior regulation. Title X projects were required to offer
example, for unemancipated minors who request
pregnant clients information and nondirective pregnancy
confidential services, discounts are based on the minor’s
counseling on each of these options: prenatal care and
own income.
delivery; infant care, foster care, or adoption; and abortion.
Projects were also required to provide referrals upon client
2019 rule. The rule allows, but does not require, Title X
request, including abortion 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 8 · UPDATED

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