The Department of Health and Human Services (HHS) will soon publish its new rules on Title X, the only federal program dedicated solely to providing family planning and related preventive services. The proposed changes – published on June 1 – will remove critical care that low-income individuals and families have historically needed and received.
What is at stake
Enacted in 1970, Title X of the Public Health Service Act authorizes the HHS secretary to make grants to private nonprofit or public entities to establish and operate voluntary family planning projects. Approximately four millionpeople rely on Title X-supported providers for care annually. In 2016, 64 percent of Title X patients had family incomes at or below the federal poverty level (FPL), and 24 percent had incomes between 101 percent and 250 percent of the FPL. A significant proportion of Title X patients identify as Black or African Americans (21 percent), and Hispanic or Latinx patients (32 percent). The program also serves young people; 18 percent of Title X patients are under 20.
The National Health Law Program submitted comments on HHS’s proposed rules, focusing on how they will undermine the effectiveness of Title X and make it exceeedingly difficult for low-income individuals and families to obtain quality family planning health care services.
NHeLP argued in its comments that the proposed rules would:
- • Reduce low-income individuals’ access to the full range of contraceptive methods and services
- Impose onerous separation requirements on Title X providers, upending the Title X network and leaving low-income individuals without access to adequate care and services
- Prevent patients from receiving full and accurate information about their pregnancy options
- Deter minors from seeking needed services, putting their health and wellbeing at risk
- Redefine “low-income family” in a way that is contrary to the text and purpose of Title X, harming the populations it intended to serve
Reducing low-income individuals’ access to the full range of contraceptive methods and services
Instead of promoting evidence-based and patient-centered standards of care, the proposed regulations advance ideological preferences for non-scientific, medical methods and services, namely natural family planning (abstinence) to prevent pregnancy and adoption to “manage” infertility. HHS’s emphasis on non-medical services is misplaced, as Congress designed Title X to provide health care services to people who did not have the means to access the most effective methods to prevent pregnancy.
HHS has traditionally required Title X grantees to provide high quality and comprehensive family planning methods and services. These federally funded sites must follow the Quality Family Planning Guidelines, which recommend providing all FDA-approved contraceptives. Representing a significant shift in position, the proposed rules state that Title X projects need not provide every acceptable and effective family planning method or service, as long as they offer a “broad range” of family planning methods and services. The preamble, however, indicates that a “broad range” does not mean all FDA-approved methods. HHS also intends to increase the number of Title X providers serving “patients who seek providers who share their religious or moral convictions.” This effort to shift the Title X network away from experienced Title X providers that deliver evidence-based, comprehensive family planning services further threatens the ability of low-income individuals to receive high quality health care.
Imposing onerous separation requirements on Title X providers, which will upend the Title X network and leave low-income individuals without access to adequate care and services
For several decades, HHS has interpreted Title X to require projects to maintain financial separation between Title X activities and abortion services. Now, HHS contends that the statute requires providers to establish a “wall of separation” between Title X activities. In addition to maintaining separate accounting records, the proposed rules require that providers must have separate facilities (including treatment, consultation, examination and waiting rooms, office entrances and exits, phone numbers, email addresses, educational services, and websites), personnel, health care records, and signs and other forms of identification. Imposing these burdensome conditions would it make it extremely difficult for providers to comply with the rules, eliminating them from the program and decreasing access to care for low-income individuals. Experience proves that eliminating these providers from the Title X network has devastating consequences for low-income individuals in need of family planning services. In 2013, Texas excluded providers providing abortion services or affiliates with providers who do so from its family planning services program for low-income women. Between 2011 and 2015, the number of women in the state who received family planning services dropped by nearly 15 percent.
Preventing patients from receiving full and accurate information about their pregnancy options
HHS proposes several changes that would undermine the provider-patient relationship and cause significant harm to pregnant individuals. HHS would eliminate the requirement that Title X projects provide neutral, factual information and nondirective options counseling to pregnant individuals. The new rules prohibit projects from “encouraging,” “promoting,” or “presenting” abortion, without fully defining what these mean and leaving room for wide interpretation. These changes would have a chilling effect on providers, who could fear even mentioning the word abortion while counseling a pregnant patient on her options would violate Title X regulations.
Trump’s HHS is also looking to prohibit Title X projects from providing abortion referrals. Only when a pregnant patient clearly states that she has already decided to have an abortion and explicitly requests a referral, a physician (and only a physician) may – but is not required to – provide “a list of licensed, qualified, comprehensive health service providers (some, but not all, of which also provide abortion, in addition to comprehensive prenatal care).” Neither physician nor this list, however, can indicate which providers offer abortion care. The American Medical Association describes withholding information from patients as “ethically unacceptable.” Patients must receive complete, accurate, and unbiased information about their health care options so that they can make voluntary decisions about their care. These proposed changes would force Title X providers to violate their ethical obligations to their patients.
Adding more complications and burden, HHS’s proposed rules would mandate that all pregnant patients be referred for prenatal and social services, such as infant or foster care, and “be given assistance with setting up a referral” – regardless of their wishes or health status. In the long term, patients would no longer trust their providers to provide full and accurate information about their health care. The implications are worse for the population that Title X mostly serves – low-income women and women of color – who have experienced coercive and other damaging treatment in the context of reproductive health care.
Deterring minors from seeking needed services, putting their health and well-being at risk
The proposed rules would impose requirements on providers that could have a chilling effect on minors’ willingness to seek needed services through Title X. Existing law already requires Title X grantees to certify that they encourage minors to include their family in their decision to seek family planning services. The proposed rule goes much further. Title X sites may only offer free services to a minor if they document in their medical record the specific actions taken to encourage the minor to involve their parent(s) or guardian(s) in their decision to seek family planning services. Moreover, Title X providers would be required to maintain records indicating the age of each minor patient served, the age of each minor patient’s sexual partner(s), if required by law and each notification or report made to state officials. While protecting minors from criminal conduct is of critical importance, the proposed changes would not further the goal of protecting the minors’ best interests. Instead, the changes instead will undermine the relationship between Title X providers and their patients and prevent minors who have concerns about confidentiality from seeking needed medical services, putting their health at risk.
The proposed definition of “low-income family” is contrary to the text and purpose of Title X
HHS is proposing a change to the definition of “low-income family” that does not comport with the language of the statute or the intention of the Title X program. Since its inception, Title X has required projects to give priority to “persons from low-income families” and to provide them free services. Under the proposed rule, a “low-income family” would include a woman who has health insurance through an employer, but whose employer refuses to cover contraceptive services because of a “sincerely held religious or moral objection to providing such coverage.”
If finalized, the proposed definition could mean that fewer low-income individuals would receive Title X services. The Title X network does not have the capacity to serve a flurry of new middle-income patients who have insurance coverage through their employer nor the resources to serve those patients at low- or no -cost. The reality of who benefits from the Title X program would change significantly, to the detriment of those who need free to low-cost services the most.
What happens now
HHS received more than 200,000 submissions by the comment deadline of July 31. The final regulations are likely to be published at the end of September. If the language essentially stays the same, litigation could result. In addition, the governors of Hawaii, Oregon, and Washington have declared that their states would not participate in the Title X program if Trump’s severe rules are implemented.
A few dates after the comment period ended, HHS published the list of Title X grantees for fiscal year 2018. Planned Parenthood League of Massachusetts, which received funding before, was not awarded a great whereas three religious affiliated entities – Beacon Christian Community Health Center (N.Y.), Neighborhood Improvement Project (Ga.), and Caring Hands Health Care (Okla.) – became new grantees. This troubling trend will likely continue.