August 13, 2019

HHS in guidance released Friday said it will not use rigid standards to determine whether providers who receive Title X family planning funds are complying with a final rule that bars such entities from providing or referring patients for abortion care, Susannah Luthi writes for Modern Healthcare's "Transformation Hub."

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Background

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 final 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.

Diane Foley, head of HHS' Office of Population Affairs (OPA), 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.

But HHS also informed health care providers and state governments that the department would not penalize providers who are making "good-faith efforts" to comply with a final rule.

The notice stated that affected providers by Aug. 19 must submit written assurance to HHS that they do not provide 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, according to the notice. The notice also stated that affected providers must be in compliance with all effective portions of the final rule by Sept. 18. However, the notice did not include detailed information on how affected providers should interpret the final rule.

HHS releases guidance on final rule

HHS' OPA in the guidance released Friday reiterated that Title X recipients must provide HHS with evidence that they are complying with the final rule by Sept. 18.

However, the guidance stated that OPA will offer Title X recipients flexibility in how they demonstrate compliance with the final rule. "OPA does not plan to not use any rigid formula to assess compliance with the final rule and recognizes that compliance by each grantee warrants particularized evaluation," the guidance states. It continues, "Accordingly, OPA plans to make an individualized determination in each case" (Luthi, "Transformation Hub," Modern Healthcare, 8/9).

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