Title X Family Planning Program: 2021 Proposed Rule

Title X Family Planning Program: 2021 Proposed Rule

June 11, 2021
Title X Family Planning Program: 2021 Proposed Rule
The Title X Family Planning Program (Title X) is the only
abortion (unless a client indicates that they do not want
domestic federal program dedicated solely to family
information or counseling about particular options).
planning and related preventive health services. The
Projects would also be required to provide referrals upon
program provides competitive grants to public and
client request, including abortion referrals. The preamble to
nonprofit agencies to establish and maintain family
the proposed rule states that “individuals and grantees with
planning projects (also called Title X projects).
conscience objections will not be required to follow the
proposed rule’s requirements regarding abortion counseling
In the April 15, 2021, Federal Register, the Department of
and referral.” (The proposed rule itself does not specify this
Health and Human Services (HHS) published a proposed
exception.)
rule, “Ensuring Access to Equitable, Affordable, Client-
Centered, Quality Family Planning Services”
The proposed rule would also remove the restriction, added
(https://go.usa.gov/xHWMb). Among other things, it would
in 2019, that only physicians and advanced practice
reverse several changes made by the Trump
providers may provide nondirective counseling. (Thus
Administration’s 2019 final rule currently in effect,
registered nurses, for example, could potentially provide
“Compliance With Statutory Program Integrity
such counseling under the proposed rule.)
Requirements” (https://go.usa.gov/xEdTp, see also CRS In
Focus IF11142, Title X Family Planning Program: 2019
Physical Separation from Abortion Activities
Final Rule).
By statute, Title X funds may not be used in projects in
which abortion is a method of family planning, and Title X
For example, Title X projects are currently prohibited from
funds “shall not be expended for abortions.” (42 U.S.C.
making abortion referrals; the proposed rule would restore a
300a-6; P.L. 116-260, Division H, Title II).
pre-2019 requirement that projects provide an abortion
referral if requested by the client. Currently Title X projects
Current regulations. The 2019 rule added a requirement
must be physically separate from certain abortion-related
that Title X projects maintain physical separation from
activities. The proposed rule would remove this physical
certain prohibited activities, including providing, referring,
separation requirement that was added by the 2019 rule.
encouraging, promoting, or advocating for abortion. For
example, the rule requires separate facilities (including
Overview of the 2021 Proposed Rule
exam and waiting rooms, entrances and exits, and
This section summarizes selected regulatory changes that
websites), staff, accounting and medical records, and
would be made by the 2021 proposed rule.
workstations for these activities. Title X funds cannot be
used to build infrastructure for prohibited abortion-related
Services for Pregnant Clients
activities.
Current regulations. The 2019 rule added a new
requirement that Title X projects refer all pregnant clients
Proposed rule. The proposed rule would remove the
to “medically necessary prenatal health care.” Title X
physical separation requirement and the infrastructure
projects are allowed to refer pregnant clients to social
provision. Using Title X funds to provide abortion would
services and adoption agencies, provide pregnancy health
still be prohibited by statute.
information, and provide a list of comprehensive primary
health care providers, including prenatal care providers.
Services to Minors
The 2019 rule permits, but does not require, the above
Title X statute requires grantees to encourage family
mentioned list to include some primary care providers who
participation in minors’ decisions to seek family planning
also perform abortions. Neither the list nor project staff may
services. Title X projects also must counsel minors on how
identify providers who perform abortions. The 2019 rule
to resist attempted coercion into sexual activity and must
generally prohibits projects from referring patients for
comply with all state and local laws on notification or
abortion as a method of family planning. The rule permits
reporting of child abuse, child molestation, sexual abuse,
physicians and advanced practice providers to give
rape, and incest (42 U.S.C. 300(a); P.L. 116-260, Division
nondirective pregnancy counseling, which may include
H, Title II, §207 and §208).
nondirective counseling on abortion.
Current regulations. The 2019 rule added a requirement
Proposed rule. The proposed rule would remove the above
that projects conduct a preliminary screening of any minor
regulatory provisions, restoring pre-2019 requirements that
client with a sexually transmitted disease, pregnancy, or any
Title X projects offer pregnant clients information and
suspicion of abuse in order to rule out victimization. The
nondirective counseling on each of these options: prenatal
rule also added new documentation requirements: certain
care and delivery; infant care, foster care, or adoption; and
minors’ medical records must indicate their sexual partners’
https://crsreports.congress.gov

Title X Family Planning Program: 2021 Proposed Rule
ages, and Title X projects must document, for each minor,
Proposed rule. The proposed rule would remove the
either (1) the specific actions taken to encourage family
provision added in 2019 on discounts for clients whose
participation or (2) the specific reason why family
employers object to contraceptive coverage.
participation was not encouraged.
The proposed rule would also add several new provisions
Proposed rule. The proposed rule would remove the above
regarding payment for services:
regulatory provisions that were added in 2019. Title X
projects would still have to follow statutory requirements
 Clients’ family income should be assessed before
on services to minors. The proposed rule would add a
charging copayments or additional fees.
provision that these projects annually train individuals who
serve Title X clients on the reporting and notification of
 Insured clients at or below 250% FPL should not pay
child abuse, child molestation, sexual abuse, rape, incest,
more in copayments or additional fees than they would
intimate partner violence, and human trafficking. Training
pay under the discount schedule.
would also cover interventions, strategies, and referrals to
improve the client’s safety and current situation.
 Title X projects should take “reasonable measures” to
verify income without burdening low-income clients.
Range of Family Planning Services
Grantees with access to other valid income verification
A Title X grantee can undertake a Title X project that has
data, because the client participates in another program,
several participating entities and service sites. For example,
may use those data instead of re-verifying or relying on
a state-agency grantee can have a Title X project that
self-reported income. If income cannot be verified after
supports local organizations and clinics throughout the
reasonable attempts, charges are to be based on self-
state.
reported income.
Current regulations. A participating entity or service site
 Grantees must make “reasonable efforts” to collect
may offer a single or limited number of family planning
charges without jeopardizing confidentiality. Grantees
methods, as long as the entire project offers “a broad range”
must inform clients of potential disclosures of
of family planning methods and services.
confidential information if the client is covered through
another person’s insurance policy. (Private health
Proposed rule. The proposed rule would require that
insurers often send policyholders “explanations of
projects offer a broad range of “medically approved” family
benefits” that describe services charged to their policy.)
planning methods and services. (The phrase “medically
approved” was included in pre-2019 regulations and was
Equity
removed by the 2019 rule.) The proposed rule would also
The proposed rule would add equity provisions, such as
add a requirement for service sites that do not offer a broad
range of family planning methods and services. Such sites
 a requirement that projects provide services “in a
must be able to “provide a referral to the client’s method of
manner that is client-centered, culturally and
choice and the referral must not unduly limit the client’s
linguistically appropriate, inclusive, and trauma-
access to their method of choice.”
informed; protects the dignity of the individual; and
ensures equitable and quality service delivery consistent
Client payment for Services
with nationally recognized standards of care.”
Current regulations. Clients with income at or below
100% of the federal poverty guidelines (FPL) do not pay for
 define health equity as “when every person has the
care. Clients with income higher than 100% and up to
opportunity to attain their full health potential and no
250% FPL are charged on a sliding discount scale. Clients
one is disadvantaged from achieving this potential
with income higher than 250% FPL are charged fees
because of social position or other socially determined
designed to recover the reasonable cost of services. If a
circumstances.”
third party (such as Medicaid or a private health insurer) is
authorized or legally obligated to pay for a client’s services,
 revise HHS’s list of criteria for evaluating grant
all reasonable efforts must be made to obtain third-party
applications, for example, by adding “ability of the
payment without discounts. Clients who the Title X project
applicant to advance health equity.”
director determines are unable, “for good reasons,” to pay
for family planning are also eligible for free or discounted
 require that Advisory Committees that review
services. For unemancipated minors who request
educational and informational materials should be
confidential services, discounts are based on the minor’s
broadly representative of, and should consider the
own income. The above provisions predate the 2019 rule.
diversity of, the communities served.
The 2019 rule added a provision allowing Title X project
Proposed Rule Timeline
directors to use the “good reasons” exception to offer free
Public comments on the proposed rule were due May 17,
or discounted contraceptive services to certain clients who
2021. After reviewing and considering comments, HHS
cannot get job-based contraception coverage due to their
plans to promulgate a final rule by fall 2021, to be effective
employer’s religious or moral objection.
in time for the program’s FY2022 competitive funding
announcement, which HHS expects to issue in December
2021 (https://go.usa.gov/xH89p).
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Title X Family Planning Program: 2021 Proposed Rule

IF11853
Angela Napili, Senior Research Librarian

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