Title X Final Rule Compliance and Enforcement: Myth vs. Fact

Timeline for Enforcement of the Rule

MYTH: The Office of Population Affairs stated the effective date for grantee compliance as July 15, 2019, then, days later issued conflicting guidance for enforcement guidelines.

FACT: Guidance sent to the grantees stated that compliance with the requirements of the Final Rule, except for the physical-separation requirements, was required as of Monday, July 15, 2019.

In the past, the U.S. Department of Health and Human Services (HHS), Office of Population Affairs (OPA), has exercised enforcement discretion in appropriate circumstances and taken into consideration the time needed for policies to be amended or updated and approved by boards, and for training of personnel in its 4,000 sites on such new or revised policies.

OPA is committed to work with grantees to assist them in coming into compliance with the requirements of the Final Rule.

Given the current circumstances surrounding the implementation of the Final Rule, OPA does not intend to bring enforcement actions against Title X recipients that are making, and continue to make, good faith efforts to comply with the Final Rule. To show good faith efforts to comply with the Title X Final Rule, OPA expects the following from grantees:

• Assurance and Action Plan Documenting Steps to Come Into Compliance – Due by August 19, 2019
• Statement and Supporting Evidence with Compliance Requirements – Due by September 18, 2019
• Statement and Supporting Evidence for Physical Separation between Title X Services and Abortion Services – Due by March 4, 2020

If the grantee believes that it cannot meet the deadlines listed above, it must submit a request for an extension along with an explanation or documentation of the need for the extension. The compliance deadline may be extended only if such extension is necessary to promote the orderly and effective implementation of the Title X project and the Final Rule. An email must be sent to the Project Officer indicating that the request has been submitted.

This is Not a “Gag Rule”

MYTH: By reinstating the “gag rule,” millions of patients will be denied important medical information, harming women’s health.

FACT: This Final Rule is not a "gag rule." Health professionals are free to provide non-directive pregnancy counseling, including counseling on abortion, and are not prohibited in any way from providing medically necessary information to clients. The Final Rule does NOT include the 1988 Regulation’s prohibition on counseling on abortion – characterized by some as a “gag rule” – but neither does it retain the mandate that all grantees MUST counsel on, and refer for, abortion. Referral for abortion as a method of family planning is not permitted, because the statute written by Congress prohibits funding programs where abortion is a method of family planning.

• The Final Rule maintains the patient/health care provider relationship and puts the health of the women and men served in the Title X program at a high priority.
• The Final Rule recognizes this important relationship by not interfering with the ability of doctors and advanced practice providers to provide nondirective abortion counseling.
• While Title X providers are prohibited from referring for abortion as a method of family planning, referral for abortion because of an emergency medical situation is not prohibited.
• If a woman is pregnant, a Title X provider may provide a list of comprehensive health care providers (including prenatal care providers), including some (but not the majority) who perform abortion as part of a comprehensive health care practice. However, this list cannot serve as a referral for, nor identify those who provide abortion – and Title X providers cannot indicate those on the list who provide abortion. This is similar to the 1988 Regulations.
• HHS is committed to the women, men, and adolescents served by the Title X program, and wants them to receive the best possible care available. That’s why we have enhanced and clarified requirements designed to protect women and minors with respect to sexual assault. In addition to their family planning services, we encourage grantees and subrecipients to provide comprehensive primary health care services, preferably in the same location or through nearby referral providers.
• The 2019 Final Rule is designed to increase services to women and men, to better ensure quality and diversity among Title X grant applicants, including consideration of the number and need of patients they will serve, and to focus on unserved and underserved populations and communities. The Department has included several provisions in the Final Rule to increase the number of women and men served through Title X clinics.

Nondirective Counseling

MYTH: Under this rule, abortion counseling is prohibited.

FACT: The Final Rule permits, but does not require, nondirective counseling on abortion by doctors or advanced practice providers. However, Title X providers are prohibited from referring for abortion as a method of family planning.

A Title X project may not provide pregnancy options counseling which promotes abortion or encourages persons to obtain an abortion, although the project may provide patients with complete factual information about all medical options and the accompanying risks and benefits.

If a pregnant woman presents with an emergent medical condition, such that emergency care is required, the Title X program is required to refer the client immediately to an appropriate provider of emergency medical services.

MYTH: The Trump Administration is banning health care providers from giving all medical options to patients.

FACT: Under the 2019 Final Rule, Title X providers are permitted to provide nondirective pregnancy counseling, including nondirective counseling on abortion.

The 2000 Regulations required that providers provide nondirective counseling on abortion as an option for pregnant women if asked. In addition, providers were required to refer women to abortion clinics, should a woman request such a referral. These requirements are inconsistent with federal statutory conscience protections.

Given the prohibition on abortion as a method of family planning under the Title X statute, Title X providers are prohibited under the Final Rule from referring for abortion as a method of family planning. This does not preclude the provision of medically necessary information. Physicians providing Title X services are permitted, but not required, to provide nondirective counseling on abortion.

Title X Providers and Planned Parenthood

MYTH: Thousands of Title X patients will lose service if Planned Parenthood drops out of the program.

FACT: There are 4,000 Title X service sites across the nation, with Planned Parenthood representing fewer than 400. If it participates in the Title X program and receives Title X funds, Planned Parenthood has an obligation to comply with the law and the plain language of Section 1008 of Title X. To the extent that Planned Parenthood claims that it must make burdensome changes to comply with the Final Rule, it is actually choosing to place a higher priority on the ability to refer for abortion instead of continuing to receive federal funds to provide a broad range of acceptable and effective family planning methods and services to clients in need of these services. Like all Title X providers, Planned Parenthood has the option to comply with the 2019 Title X Final Rule, which faithfully implement the statutes, and continue to receive federal funding.

Other Title X sites include public health departments, federally qualified health centers (FQHCs), hospital sites, as well as other independent clinics not affiliated with Planned Parenthood.¹ Many FQHCs already provide family planning services and have indicated they have the ability to increase capacity and provide Title X services.

In addition, the Final Rule encourages diverse and new organizations to serve patients in the Title X program. Community health organizations, clinics, and hospitals that are currently not Title X grantees or subrecipients could seek to participate in the Title X program – and could easily serve patients seamlessly since they already are committed to providing medical care to women and men in their communities and many already provide family planning services to their patients.

¹ https://www.guttmacher.org/report/publicly-funded-contraceptive-services-us-clinics-2015