Title X Family Planning Program: 2019 Final Rule

Title X Family Planning Program: 2019 Final Rule

Updated November 10, 2021
Title X Family Planning Program: 2019 Final Rule
The Title X Family Planning Program (Title X) is the only
Scope of Family Planning Services
domestic federal program devoted solely to family planning
Prior regulation. Title X projects were required
and related preventive health services. The program
to“[p]rovide a broad range of acceptable and effective
provides grants to public and nonprofit agencies to establish
medically approved family planning methods (including
and maintain family planning projects (Title X projects). A
natural family planning methods) and services (including
Title X grantee can undertake a Title X project that has
infertility services and services for adolescents). If a health
several participating entities. For example, a state-agency
care entity offers only a single method of family planning,
grantee can have a Title X project that supports the state’s
it may participate as part of a project as long as the entire
local organizations and clinics.
project offers a broad range of family planning services.”
In the March 4, 2019 Federal Register, the Department of
2019 rule. The rule required Title X projects to “[p]rovide a
Health and Human Services (HHS) published a final rule
broad range of acceptable and effective family planning
for the program, https://go.usa.gov/xEdTp. Among other
methods (including contraceptives, natural family planning
things, it prohibited Title X projects from referring clients
or other fertility awareness-based methods) and services
for abortion as a method of family planning. It also required
(including infertility services, information about or referrals
physical separation between Title X projects and certain
for adoption, and services for adolescents).” The rule did
abortion-related activities. For a redline document showing
not require family planning methods and services to be
how the rule changed prior regulations, see
“medically approved.” The rule did not require Title X
https://go.usa.gov/xAFQA.
projects to provide every acceptable and effective family
planning method or service. The rule stated that “[a]
On October 7, 2021, HHS published a new final rule in the
participating entity may offer only a single method or a
Federal Register, https://go.usa.gov/xMfQy. Effective
limited number of methods of family planning as long as
November 8, 2021, the new rule, among other things,
the entire project offers a broad range of such family
revokes the 2019 rule in its entirety and largely reinstates
planning methods and services.”According to its preamble,
the program’s pre-2019 guidance and regulations. This In
the rule allowed participation by clinics that, “for reasons of
Focus summarizes the 2019 rule and may be of historical
conscience,” limit the services they offer.
interest.
Physical and Financial Separation
Overview of the 2019 Final Rule
By law, Title X funds may not be used in projects where
HHS required compliance with the 2019 final rule starting
abortion is a method of family planning (42 U.S.C. 300a-6).
July 15, 2019, except for the physical separation
requirements, for which compliance was required by March
Prior guidance. Program guidance interpreted the law as
4, 2020. The rule was challenged in several lawsuits across
requiring that a grantee’s abortion activities be “separate
the country, but eventually took effect in all states except
and distinct” from its Title X project activities. Under prior
Maryland, where it was enjoined. This section summarizes
guidance, a grantee’s abortion activities and its Title X
selected regulatory changes made by the 2019 rule.
project activities could share a common facility, a common
waiting room, common staff, and a common records
Family Planning Definition
system, “so long as it is possible to distinguish between the
Prior regulation. “Family planning” was not defined.
Title X supported activities and non-Title X abortion-
related activities,” for example, through allocating and
2019 rule. The rule introduced 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 required 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 could include, among
activities, including providing, referring, encouraging,
other things, an array of “acceptable and effective choices,
promoting, or advocating for abortion. The rule required,
which may range from choosing not to have sex to the use
for example, separate facilities (including exam and waiting
of other family planning methods and services to limit or
rooms, entrances and exits, and websites), separate staff,
enhance the likelihood of conception (including
separate accounting and medical records, and separate
contraceptive methods and natural family planning or other
workstations. Title X funds could not be used to build
fertility awareness-based methods) and the management of
infrastructure for prohibited abortion-related activities. The
infertility (including adoption).”
preamble to the rule stated that abortion-providing
organizations could still apply for and receive Title X
grants, provided they complied with the physical and
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Title X Family Planning Program: 2019 Final Rule
financial separation requirements, and other Title X
with a sexually transmitted disease, pregnancy, or any
requirements.
suspicion of abuse, in order to rule out victimization. The
rule also had new documentation requirements. For
Primary Care Referrals
example, certain minors’ medical records were to indicate
Prior regulation. Title X projects were required to
their sexual partners’ ages. Title X projects were to also
“provide for coordination and use of referral arrangements”
document, for each minor client, either (1) the specific
with other health care providers.
actions taken to encourage family participation or (2) the
specific reason why such family participation was not
2019 rule. The rule encouraged Title X projects to “offer
encouraged.
either comprehensive primary health services onsite or have
a robust referral linkage with primary health providers who
Free or Discounted Care Eligibility
are in close physical proximity” to the site.
Prior and current regulations. Clients are eligible for
free, discounted, or full-cost services, depending on their
Services for Pregnant Clients
income. Clients who the Title X project director determines
Prior regulation. Title X projects were required to offer
are unable, “for good reasons,” to pay for family planning
pregnant clients information and nondirective pregnancy
are also eligible for free or discounted services. For
counseling on each of these options: prenatal care and
example, for unemancipated minors who request
delivery; infant care, foster care, or adoption; and abortion.
confidential services, discounts are based on the minor’s
Projects were also required to provide referrals upon client
own income.
request, including abortion referrals.
2019 rule. The rule had added a provision that allowed, but
2019 rule. The rule removed the requirements described
did not require, Title X project directors to use the “good
above. It added a new requirement that Title X projects
reasons” exception to offer free or discounted contraceptive
must refer pregnant clients “to a health care provider for
services to certain clients who could not get job-based
medically necessary prenatal health care.” The preamble to
contraception coverage due to their employer’s religious or
the rule stated that prenatal care is medically necessary for
moral objection. In such cases, the director would also
all pregnant clients.
consider the client’s total income and the out-of-pocket
costs of contraception.
The rule allowed Title X projects to refer pregnant clients to
social services and adoption agencies, to provide pregnancy
Program Participation After 2019 Rule
health information, and to provide a list of comprehensive
According to HHS, 945 service sites immediately withdrew
primary health care providers including prenatal care
from the Title X program after the 2019 rule’s
providers. The rule permitted, but did not require, the
implementation, and Title X ultimately lost about a quarter
abovementioned list to include some primary care providers
(more than 1,000) of its 2019 service sites. HHS estimates
who also performed abortion. The list and project staff
that the 2019 rule may have led to 181,477 unintended
could not identify which providers on the list perform
pregnancies, see https://go.usa.gov/xHWMb. Title X served
abortion. The rule generally prohibited projects from
1.5 million clients in 2020, compared with 3.1 million in
referring patients for abortion as a method of family
2019 and 3.9 million in 2018. According to the Family
planning. However, the preamble to the rule stated that
Planning Annual Report, an estimated 63% of this decrease
abortion referrals were permitted in certain circumstances,
since 2018 was due to the rule’s implementation and 37%
including emergencies and cases of rape and incest. The
was due to the COVID-19 pandemic, see https://go.usa.gov/
rule permitted, but did not require, physicians and advanced
xMNHb.
practice providers to give nondirective pregnancy
counseling, which could include nondirective counseling on
Congressional Activity
abortion. The preamble stated that nondirective counseling
During the 116th Congress, the House Energy and
involved presenting options “in a factual, objective, and
Commerce Subcommittee on Oversight and Investigations
unbiased manner.”
held a June 19, 2019 hearing on the 2019 rule,
https://go.usa.gov/xdbVG. Also, during the 116th Congress,
Services for Minors
the House passed H.R. 2740 and H.R. 7617, two
Prior and current law and guidance. All Title X services
appropriations bills that would have prohibited the final
are confidential, including services to minors. Title X
rule’s implementation in FY2020 and FY2021,
projects may not require parental notification or parental
respectively. Neither bill became law.
consent for services to minors . However, Title X statutorily
requires grantees, “[t]o the extent practical,” to encourage
In the 117th Congress, the House passed FY2022
family participation. Appropriations law requires Title X
appropriations bill H.R. 4502, which would require Title X
projects to counsel minors on how to resist attempted
projects to offer pregnant clients information, nondirective
coercion into sexual activity, and to comply with all state
pregnancy counseling, and referral upon client request, on
and local laws on notification or reporting of child abuse,
each of these options: prenatal care and delivery; infant
child molestation, sexual abuse, rape, and incest.
care, foster care, or adoption; and abortion.
2019 rule. The rule did not change the above law or
Angela Napili, Senior Research Librarian
guidance, but it added a new regulation that Title X projects
must conduct a preliminary screening of any minor client
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Title X Family Planning Program: 2019 Final Rule

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