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July 23, 2019

HHS won't penalize providers who try to comply with Title X abortion restrictions

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    HHS on Saturday informed health care providers and state governments that the department will not penalize providers who are making efforts to comply with a final rule that bars entities that receive Title X family planning grants from providing or referring patients for abortion care.

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    The announcement comes after HHS last week said it would immediately begin enforcing the final rule.


    HHS in February issued a final rule that requires recipients of Title X family planning funds "to separate their Title X project—physically and financially—from any abortion activities." As such, the final rule prohibits the federal government from dispersing Title X family planning funds to health care providers that offer abortions and abortion referrals in the same locations that they offer family planning services. However, providers under the final rule can refer patients for emergency abortion care when necessary.

    In addition, the final rule broadens the definition of "family planning" to include adoption, abstinence, infertility management, and natural family planning. Under the final rule, providers will be required to offer "a broad range of … methods and services," which do not all have to be medically approved.

    The final rule originally was scheduled to take effect May 3, but federal judges in California, Oregon, and Washington issued preliminary injunctions blocking the final rule. The Trump administration appealed each of those injunctions.

    In a 7-4 vote issued earlier this month, an en banc panel of the 9th U.S. Circuit Court of Appeals upheld a ruling that allowed the rule to take effect. California, Oregon, and Washington, have requested the appeals court revisit its decision, and the court is doing so on an expedited basis.

    Last Monday, HHS said the department in the meantime had started enforcing the final rule in line with the en banc panel's initial ruling. Diane Foley, head of HHS' Office of Population Affairs, told Title X grantees that the most recent court ruling meant many of the final rule's provisions have taken effect, including its provision requiring that any family planning services funded through Title X be financially separated from abortion services.

    The final rule's requirement that Title X-funded services and abortion services be performed in separate facilities will not take effect until March 2020.

    HHS says it will not penalize providers trying to comply with final rule

    But Foley on Thursday told more than 200 leaders of reproductive health organizations that she wanted to give affected providers an additional 60 days to comply with the final rule's requirements. Three people who were at the meeting told the Washington Post that Foley said federal lawyers were reviewing her proposal.

    Then, HHS in a notice sent Saturday night to Planned Parenthood affiliates, state governments, and other organizations that received Title X family planning grants wrote that the department "'does not intend to bring enforcement actions'" against affected providers and clinics that are making "'good-faith efforts'" to comply with the final rule.

    According to NPR, the notice stated that affected providers by Aug. 19 must submit written assurance to HHS that they do not provider abortion care or include abortion care as a family planning method. In addition, affected providers must submit an "'action plan'" detailing how they will comply with the final rule. The notice also stated that affected providers must be in compliance with all effective portions of the final rule by Sept. 18.

    The notice did not include detailed information on how affected providers should interpret the final rule. However, the three people who were at the Thursday meeting told the Post that Foley said HHS soon would issue written guidance on how affected providers can comply with the final rule.


    The National Family Planning & Reproductive Health Association on Sunday called HHS' actions "wholly insufficient." Clare Coleman, the group's president, said the notice HHS issued Saturday amounts to "a few bullet points," adding, "Failure (by HHS) to provide detailed implementation guidance may be the start of a game of 'gotcha' as it assesses compliance with the rule."

    Jacqueline Ayers, VP of Government Relations & Public Policy at Planned Parenthood Federation of America, said, "It is unethical and dangerous to require health care providers to withhold important information from patients." She continued, "During this period of limbo while we wait for the court to rule, our affiliates are not using federal Title X funds to provide care. We are continuing to fight this illegal rule in court and to provide care to all people—no matter what."

    Ayers also called on Congress to address the matter. "It's time for Congress to act, and save birth control, cancer screenings, and [sexually transmitted disease] testing and treatment for the four million people who rely on our country's program for affordable birth control," she said.

    George Hill, president and CEO of Maine Family Planning, also said his group will stop using Title X funds for the time being. "We cannot keep dancing back and forth with HHS—it's not fair to our patients, our providers, or our subrecipients," Hill said, adding, "We are moving forward with our withdrawal and will consider re-applying for federal funding if and when the [final rule] is completely off the table" (Alonso-Zaldivar, Associated Press, 7/21; Goldstein, Washington Post, 6/20; Van Sant, NPR, 7/21; Diamond, "Pulse," Politico, 7/22).

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