HHS Amends Title X Family Planning Regulations

New Rules Take Strict Stance on Abortion, Require More Detailed Reporting
Jerry Ashworth
March 11, 2019 at 07:17:18 ET

The Department of Health and Human Services (HHS) recently amended its Title X family planning program regulations to prohibit the use of program funds to perform, promote, refer for or support abortion as a method of family planning. In addition, the amended rules now require more complete reporting by recipients and subrecipients receiving funds under the program to ensure accountability.

Title X, Population Research and Voluntary Family Planning Programs, of the Public Health Services Act, as amended in 2018 (Pub. L. 115-148), provides grant funds to public and nonprofit entities to assist in the establishment and operation of voluntary family-planning projects that offer a broad range of acceptable family-planning methods and services, including fertility awareness-based methods, infertility services and services for adolescents, particularly from low-income families.

Section 1008 of Title X states that “none of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.” In its regulations at 42 C.F.R Part 59, which was last updated in 2000, HHS previously took the position that section 1008 precluded only funding of activities that “directly facilitate the use of abortion as a method of family planning, such as providing transportation for an abortion, explaining and obtaining signed abortion consent forms from clients interested in abortions, negotiating a reduction in fees for an abortion, and scheduling or arranging for the performance of an abortion, promoting or advocating abortion within Title X program activities, or failing to preserve sufficient separation between Title X program activities and abortion-related activities.” HHS said it no longer considers that position appropriate, stating that section 1008 does not merely prohibit “direct” funding for abortion, it also prohibits all funding for programs “where abortion is a method of family planning.”

“That broad language captures not just the activities of the program itself, but also any activities facilitated, encouraged or promoted by the program,” according to HHS. “Limiting section 1008’s prohibition to only ‘direct’ facilitation of abortion creates confusion about which activities are proscribed by the section, and, in [HHS’] view, fails to ensure that Title X funds are not being used in ‘programs where abortion is a method of family planning.’”

Clear Financial, Physical Separation

The amended rule, effective May 3, promulgates a proposed rule that HHS issued in June 2018, which received more than 500,000 comments. The final rule now requires clear financial and physical separation between Title X funded projects, and programs or facilities where abortion is a method of family planning. “This separation will ensure adherence to statutory restrictions, and provide needed clarity for the public and for Title X clinics about permissible and impermissible activities for Title X projects,” HHS said.

The final rule also addresses indirect counseling, in which physicians discuss with the client a range of options, consistent with the client’s needs and with the statutory and regulatory requirements governing the Title X program. Although the rule does not bar nondirective counseling on abortion (e.g., referring for abortion for documented emergency care reasons), it does eliminate the requirement that Title X providers offer abortion counseling and referral. “It protects Title X healthcare providers so that they are not required to choose between participating in the program and violating their own consciences by providing abortion counseling and referral,” HHS added.

Further, the final rule now states that a project may not receive funds under the program unless the recipient provides assurance to the agency that the project does not provide abortion and does not include abortion as a method of family planning.

Transparency and Accountability

The final rule also added a new amendment at 42 C.F.R. §59.5(a)(13) requiring that program recipients ensure transparency in the delivery of services by reporting the following information in grant applications and all required reports:

  • subrecipients and agencies or individuals providing referral services by name, location, expertise and services provided or to be provided;
  • detailed description of the extent of the collaboration with subrecipients, referral agencies and any individuals providing referral services, in order to demonstrate a seamless continuum of care for clients; and
  • clear explanation of how the recipient will ensure adequate oversight and accountability for quality and effectiveness of outcomes among subrecipients.

HHS received many comments to the proposed rule contending that these transparency requirements would add administrative burden and costs to projects, adding that programs lack complete familiarity with policies, referral practices or services offered by their subrecipients. HHS did not agree that the rule would impose an inappropriate administrative burden or cost on projects. “The rule would require applicants to provide certain information in their applications, required reports and in response to performance measures,” it said. “This information is necessary to ensure that Title X projects are achieving the goals of the program and expending grant funds properly.”

The final rule also requires that recipients establish a plan to ensure that they and their subrecipients: (1) comply with all applicable state reporting requirements of child abuse, child molestation, sexual abuse, rape, incest, intimate partner violence and human trafficking; (2) adequately train staff regarding such requirements and include protocols that ensure such minors are provided counseling on how to resist attempts to coerce them into engaging in sexual activities; and (3) commit to preliminary screening of such minors.

In addition, the final rule formally revokes an amendment to the Title X eligibility requirements HHS made through a December 2016 final rule that prohibited any recipient making subawards as part of its Title X project from excluding an entity from receiving a subaward for reasons other than its ability to provide Title X services. At the time, HHS issued the rule to respond to new approaches to competing or distributing Title X funds that were being employed by several states. The regulation took effect in January 2017, but subsequently was nullified under the Congressional Review Act (Pub. L. 115-23). Therefore, HHS now has repealed the 2016 regulation and will permit states and other Title X recipients to select Title X subrecipients as long as they comply with the statutory, regulatory and policy provisions in the funding announcement.

For More Information

The final rule is available at https://www.federalregister.gov/documents/2019/03/04/2019-03461/compliance-with-statutory-program-integrity-requirements.

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