Title X Family Planning Program: 2021 Final Rule

Title X Family Planning Program: 2021 Final Rule

December 7, 2021
Title X Family Planning Program: 2021 Final Rule
The Title X Family Planning Program (Title X) is the only
Title X projects offer pregnant clients information and
domestic federal program dedicated solely to family
nondirective counseling on each of the following options:
planning and related preventive health services. The
prenatal care and delivery; infant care, foster care, or
program provides competitive grants to public and
adoption; and abortion (unless clients indicate they do not
nonprofit agencies to establish and maintain family
want such information or counseling). Projects are required
planning projects (also called Title X projects).
to provide referrals upon client request, including abortion
referrals.
In the October 7, 2021, Federal Register, the Department of
Health and Human Services (HHS) published a final rule,
A footnote in the 2021 rule notes, “[p]roviders may
“Ensuring Access to Equitable, Affordable, Client-
separately be covered by federal statutes protecting
Centered, Quality Family Planning Services” (see
conscience.” The 2021 rule’s preamble states, “objecting
https://go.usa.gov/xMfQy). Among other things, it revokes
individuals and grantees will not be required to counsel or
the Trump Administration’s 2019 final rule, “Compliance
refer for abortions in the Title X program in accordance
With Statutory Program Integrity Requirements” (see
with applicable federal law.”
https://go.usa.gov/xEdTp; see also CRS In Focus IF11142,
Title X Family Planning Program: 2019 Final Rule). The
The 2021 rule removes the restriction, added in 2019, that
2021 final rule, effective November 8, 2021, largely
only physicians and advanced practice providers may
reinstates regulations that were in effect prior to 2019, with
provide nondirective counseling. (Thus registered nurses,
some revisions (see https://go.usa.gov/xM6Cx).
for example, can potentially provide such counseling.)
Title X’s FY2022 competitive grant announcement requires
Physical Separation from Abortion Activities
applicants to comply with the new rule. Projects are
By statute, Title X funds may not be used in projects where
anticipated to start on April 1, 2022 (see https://go.usa.gov/
abortion is a method of family planning, and Title X funds
xMHVq).
“shall not be expended for abortions.” (42 U.S.C. §300a-6;
P.L. 116-260, Division H, Title II.)
Several states seek to halt the rule’s implementation. (Ohio
v. Becerra, U.S. District Court for the Southern District of
2019 rule. The 2019 rule added a requirement that Title X
Ohio, case no. 1:21-cv-675, https://go.usa.gov/xenXG.)
projects maintain physical separation from certain
prohibited activities, including providing, referring clients
Overview of the 2021 Final Rule
to, encouraging, promoting, or advocating for abortion. For
This section summarizes selected regulatory changes made
example, the rule required separate facilities, staff, and
by the 2021 final rule.
accounting and medical records for these activities. Title X
funds could not be used to build infrastructure for
Services for Pregnant Clients
prohibited abortion-related activities.
2019 rule. The 2019 rule added a new requirement that
Title X projects refer all pregnant clients to “medically
2021 rule. The 2021 rule removes the physical separation
necessary prenatal health care.” Title X projects could refer
requirement and the infrastructure provision. It restores pre-
pregnant clients to social services and adoption agencies,
2019 guidance that grantees’ Title X project activities and
provide pregnancy health information, and provide a list of
their non-Title-X abortion activities be “separate and
comprehensive primary health care providers, including
distinct”; they may share a facility, staff, and records
prenatal care providers. The 2019 rule permitted, but did
system “so long as it is possible to distinguish between the
not require, the above-mentioned list to include some
Title X supported activities and non-Title X abortion-
primary care providers who also perform abortions. Neither
related activities,” for example, through allocating and
the list nor the project staff could identify providers who
prorating costs (see https://go.usa.gov/xMHQ9).
perform abortions. The 2019 rule generally prohibited
projects from referring patients for abortion as a method.
Services to Minors
The rule permitted physicians and advanced practice
Title X statute requires grantees to encourage family
providers to give nondirective pregnancy counseling, which
participation in minors’ decisions to seek family planning
could include nondirective counseling on abortion.
services. Title X projects also must counsel minors on how
to resist attempted coercion into sexual activity and must
2021 rule. The 2021 rule revokes the above 2019
comply with all state and local laws on notification or
regulatory provisions, restoring pre-2019 requirements that
reporting of child abuse, child molestation, sexual abuse,
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Title X Family Planning Program: 2021 Final Rule
rape, and incest (42 U.S.C. 300(a); P.L. 116-260, Division
2019 rule. The 2019 rule added a provision allowing Title
H, Title II, §207 and §208).
X project directors to use the “good reasons” exception to
offer free or discounted contraceptive services to certain
2019 rule. The 2019 rule added a requirement that projects
clients who could not get job-based contraception coverage
conduct a preliminary screening of any minor client with a
due to their employer’s religious or moral objection.
sexually transmitted disease, pregnancy, or any suspicion of
abuse in order to rule out victimization. The rule also added
2021 rule. The 2021 rule removes the provision added in
documentation requirements: certain minors’ medical
2019 on discounts for clients whose employers object to
records had to indicate sexual partners’ ages, and projects
contraceptive coverage.
had to document, for each minor, either (1) specific actions
taken to encourage family participation or (2) the specific
The rule adds new provisions on payment for services:
reason why family participation was not encouraged.
 Clients’ family income should be assessed before
2021 rule. The 2021 rule revokes the above regulatory
charging copayments or additional fees.
provisions that were added in 2019. The 2021 rule adds a
 Insured clients at or below 250% FPL should not pay
provision that Title X projects may not require parental
more in copayments or additional fees than they would
consent and may not notify a parent or guardian that a
pay under the discount schedule.
minor has requested or received Title X family planning
 Title X projects should take “reasonable measures” to
services. Title X projects must still follow statutory
verify income without burdening low-income clients.
requirements on services to minors.
Grantees with access to other valid income verification
data, because the client participates in another program,
Range of Family Planning Services
may use those data instead of reverifying or relying on
A Title X grantee can undertake a Title X project that has
self-reported income. If income cannot be verified after
several participating entities and service sites. For example,
reasonable attempts, charges are to be based on self-
a state-agency grantee’s Title X project can support local
reported income.
organizations and clinics throughout the state.
 Grantees must make “reasonable efforts” to collect
charges without jeopardizing confidentiality. Grantees
2019 rule. A participating entity or service site could offer
must inform clients of potential disclosures of
a single or limited number of family planning methods, as
confidential information if the client is covered through
long as the entire project offered “a broad range” of family
another person’s insurance policy. (Private health
planning methods and services.
insurers often send policyholders “explanations of
benefits” that describe services charged to their policy.)
2021 rule. The 2021 rule requires projects to offer a broad
range of “medically approved” family planning methods
Equity
and services. (Pre-2019 regulations included the phrase
The 2021 rule adds equity provisions, such as
“medically approved,” and the 2019 rule removed it.) The
2021 rule adds a requirement for service sites that do not
 a requirement that projects provide services “in a
offer a broad range of family planning methods and
manner that is client-centered, culturally and
services. Such sites must be able to provide a prescription
linguistically appropriate, inclusive, and trauma-
for the client’s method of choice or referrals to another
informed; protects the dignity of the individual; and
provider, as requested. The rule adds language that Title X
ensures equitable and quality service delivery consistent
services may be provided “in person or via telehealth.”
with nationally recognized standards of care.”
 a definition of health equity that affords “all persons the
Client Payment for Services
opportunity to attain their full health potential and no
Clients with income at or below 100% of the federal
one is disadvantaged from achieving this potential
poverty guidelines (FPL) do not pay for care. Clients with
because of social position or other socially determined
income higher than 100% and up to 250% FPL are charged
circumstances.”
on a sliding discount scale. Clients with income higher than
 a revision of HHS’s list of criteria for evaluating grant
250% FPL are charged fees designed to recover the
applications, for example, by adding “ability of the
reasonable cost of services. If a third party (such as
applicant to advance health equity.”
Medicaid or a private health insurer) is authorized or legally
 a requirement that Advisory Committees that review
obligated to pay for a client’s services, all reasonable efforts
educational and informational materials should be
must be made to obtain third-party payment without
broadly representative of, and should consider the
discounts. Clients who the Title X project director
diversity of, the communities served.
determines are unable, “for good reasons,” to pay for family
planning are also eligible for free or discounted services.
The rule also requires projects to “provide services in a
For unemancipated minors who request confidential
manner that does not discriminate against any client based
services, discounts are based on the minor’s own income.
on religion, race, color, national origin, disability, age, sex,
The above provisions predated the 2019 rule.
sexual orientation, gender identity, sex characteristics,
number of pregnancies, or marital status.”
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Title X Family Planning Program: 2021 Final Rule

IF11986
Angela Napili, Senior Research Librarian

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