Updated June 10, 2021
Title X Family Planning Program: 2019 Final Rule
The Title X Family Planning Program (Title X) is the only
which may range from choosing not to have sex to the use
domestic federal program devoted solely to family planning
of other family planning methods and services to limit or
and related preventive health services. The program
enhance the likelihood of conception (including
provides grants to public and nonprofit agencies to establish
contraceptive methods and natural family planning or other
and maintain family planning projects (Title X projects). A
fertility awareness-based methods) and the management of
Title X grantee can undertake a Title X project that has
infertility (including adoption).”
several participating entities. For example, a state-agency
grantee can have a Title X project that supports the state’s
Scope of Family Planning Services
local organizations and clinics.
Prior regulation. Title X projects were required
to“[p]rovide a broad range of acceptable and effective
In the March 4, 2019, Federal Register, the Department of
medically approved family planning methods (including
Health and Human Services (HHS) published a final rule
natural family planning methods) and services (including
for the program, https://go.usa.gov/xEdTp. Among other
infertility services and services for adolescents). If a health
things, it prohibits Title X projects from referring clients for
care entity offers only a single method of family planning,
abortion as a method of family planning. It also requires
it may participate as part of a project as long as the entire
physical separation between Title X projects and certain
project offers a broad range of family planning services.”
abortion-related activities. For a redline document showing
how the rule changed prior regulations, see
2019 rule. The rule requires Title X projects to “[p]rovide a
https://go.usa.gov/xAFQA.
broad range of acceptable and effective family planning
methods (including contraceptives, natural family planning
Status of the Final Rule
or other fertility awareness-based methods) and services
HHS required compliance with the final rule starting July
(including infertility services, information about or referrals
15, 2019, except for the physical separation requirements,
for adoption, and services for adolescents).” The rule does
for which compliance was required by March 4, 2020. The
not require family planning methods and services to be
rule was challenged in several lawsuits across the country,
“medically approved.” The rule does not require Title X
but took effect in all states except Maryland, where it was
projects to provide every acceptable and effective family
enjoined, see https://go.usa.gov/xVX4t.
planning method or service. The rule states that “[a]
participating entity may offer only a single method or a
In the April 15, 2021 Federal Register, HHS published a
limited number of methods of family planning as long as
proposed rule that would, among other things, reverse
the entire project offers a broad range of such family
several changes made by the 2019 rule. For example, the
planning methods and services.”According to the preamble,
proposed rule would restore a pre-2019 requirement that
the rule allows participation by clinics that, “for reasons of
projects provide an abortion referral if requested by the
conscience,” limit the services they offer.
client and would remove the physical separation
requirement, among other changes, see https://go.usa.gov/
Physical and Financial Separation
xHWMb. HHS has indicated that it expects the notice-and-
By law, Title X funds may not be used in projects where
comment rulemaking process to be completed by the end of
abortion is a method of family planning (42 U.S.C. 300a-6).
2021; until a new final rule takes effect, HHS plans to
continue to enforce the 2019 rule, see https://go.usa.gov/
Prior guidance. Program guidance interpreted the law as
xHeyY.
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
spacing of children and the means by which those goals
activities, including providing, referring, encouraging,
may be achieved.” Family planning can include, among
promoting, or advocating for abortion. The rule requires,
other things, an array of “acceptable and effective choices,
for example, separate facilities (including exam and waiting
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Title X Family Planning Program: 2019 Final Rule
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. Title X projects were required to
Title X projects must also document, for each minor client,
“provide for coordination and use of referral arrangements”
either (1) the specific actions taken to encourage family
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. Title X projects were required to offer
are also eligible for free or discounted services. For
pregnant clients information and nondirective pregnancy
example, for unemancipated minors who request
counseling on each of these options: prenatal care and
confidential services, discounts are based on the minor’s
delivery; infant care, foster care, or adoption; and abortion.
own income.
Projects were also required to provide referrals upon client
request, including abortion referrals.
2019 rule. The rule allows, but does not require, Title X
project directors to use the “good reasons” exception to
2019 rule. The rule removes the requirements described
offer free or discounted contraceptive services to certain
above. It adds a new requirement that Title X projects must
clients who cannot get job-based contraception coverage
refer pregnant clients “to a health care provider for
due to their employer’s religious or moral objection. In such
medically necessary prenatal health care.” The preamble to
cases, the director would also consider the client’s total
the rule states that prenatal care is medically necessary for
income and the out-of-pocket costs of contraception.
all pregnant clients.
Program Participation After 2019 Rule
The rule allows Title X projects to refer pregnant clients to
According to HHS, 945 service sites immediately withdrew
social services and adoption agencies, to provide pregnancy
from the Title X program after the 2019 rule’s
health information, and to provide a list of comprehensive
implementation, and Title X ultimately lost about a quarter
primary health care providers including prenatal care
(more than 1,000) of its 2019 service sites. HHS’s
providers. The rule permits, but does not require, the
preliminary estimate is that Title X served 1.5 million
abovementioned list to include some primary care providers
clients in 2020, compared with 3.1 million in 2019 and 3.9
who also perform abortion. The list and project staff may
million in 2018, although some of this decrease was due to
not identify which providers on the list perform abortion.
the COVID-19 pandemic. HHS estimates that the rule may
The rule generally prohibits projects from referring patients
have led to 181,477 unintended pregnancies, see
for abortion as a method of family planning. However, the
https://go.usa.gov/xHWMb.
preamble to the rule states that abortion referrals are
permitted in certain circumstances, including emergencies
Congressional Activity
and cases of rape and incest. The rule permits, but does not
During the 116th Congress, the House Energy and
require, physicians and advanced practice providers to give
Commerce Subcommittee on Oversight and Investigations
nondirective pregnancy counseling, which may include
held a June 19, 2019, hearing on the rule,
nondirective counseling on abortion. The preamble states
https://go.usa.gov/xdbVG. Also, during the 116th Congress,
that nondirective counseling involves presenting options “in
the House passed two appropriations bills that would have
a factual, objective, and unbiased manner.”
prohibited the final rule’s implementation in FY2020 and
FY2021, respectively: the Labor, Health and Human
Services for Minors
Services, Education, Defense, State, Foreign Operations,
Current law and guidance. All Title X services are
and Energy and Water Development Appropriations Act,
confidential, including services to minors. Title X projects
2020 (H.R. 2740), and the Defense, Commerce, Justice,
may not require parental notification or parental consent for
Science, Energy and Water Development, Financial
services to minors. However, Title X statutorily requires
Services and General Government, Labor, Health and
grantees, “[t]o the extent practical,” to encourage family
Human Services, Education, Transportation, Housing, and
participation. Appropriations law requires Title X projects
Urban Development Appropriations Act, 2021 (H.R. 7617).
to counsel minors on how to resist attempted coercion into
Neither bill became law.
sexual activity, and to comply with all state and local laws
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 10 · UPDATED

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