HHS finalizes regulations prohibiting state discrimination against abortion providers

Recipients of Title X Grants for Family Planning Services making subawards cannot restrict participating entities for any reason other than the entity’s ability to provide Title X services, under a new Final rule that will publish on December 19, 2016. The regulatory change was motivated by recent state-imposed restrictions and prohibitions against entities that provide abortions from receiving Title X funds. By statute, Title X funds cannot be used by programs that allow abortion as a method of family planning (42 U.S.C. §300a-6); such programs also cannot be required to perform or assist in the performance of an abortion, nor discriminate against an employee who performs or assists or refuses to perform or assist in the performance of an abortion (42 U.S.C. §300a-7). The regulations will be effective on January 18, 2017, two days before the inauguration of President-elect Donald Trump (R).

Title X

Title X of the Public Health Service Act (42 U.S.C. §§300–300a-8) created the Family Planning Program, which provides funding to nearly 4,000 community-based clinics that provide high quality, affordable, and cost-effective family planning and related preventive health services for women and men, with priority given to low-income patients. In 2015, more than 4 million individuals received services from Title X Family Planning Clinics.

Recipient restrictions

Section 2303 of 2010’s Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) expanded family planning services for certain Medicaid beneficiaries. Soon thereafter, however, family planning organizations began facing funding challenges. According to the Final rule, 13 states have taken action since 2011 to restrict funding to abortion providers, and entities which do not provide abortion services but are affiliated with organizations—such as Planned Parenthood—which provide abortions at some facilities. These restrictions have affected family planning clinics both as subrecipients of Title X grants and as Medicaid providers, leading to decreased access to providers and limitations in the geographic distribution of services.

These restrictions led to litigation (see, e.g., (see Court grants preliminary injunction reinstating Planned Parenthood’s provider agreement with Alabama, Health Law Daily, October 29, 2015; Medicaid termination denied because Planned Parenthood is qualified, Health Law Daily, November 4, 2015; Patients’ provider choice rights violated by exclusion without cause, Health Law Daily, April 19, 2016), and HHS action telling states to end such restrictions (see States warned not to exclude qualified providers, especially family planning, Health Law Daily, April 20, 2016; No limits on choice of provider, contraceptive method for Medicaid enrollees, Health Law Daily, June 16, 2016). HHS also began granting Title X funding directly to providers as sole source replacement grants following the imposition of state restrictions (see Direct award Title X grant documentation properly withheld by HHS, Health Law Daily, February 5, 2015).

Regulatory changes

Earlier this year, HHS’ Office of Population Affairs published a Notice of proposed rulemaking in the Federal Register, declaring its intent to amend current Title X regulations to preclude project recipients from using criteria in their selection of subrecipients that are unrelated to the ability to deliver services to program beneficiaries in an effective manner (81 FR 61639, September 7, 2016). Approximately 91 percent of the 145,000 comments the agency received on the proposed regulations were in favor of the amendment.

In response to negative comments, the Final rule explained that there is no evidence that certain Title X funding recipients—Planned Parenthood, specifically—have engaged in Medicaid fraud, and pointed to research finding that every grant dollar spent on family planning saves an average of $7.09 in Medicaid-related expenditures. The Final rule similarly responded to commenters concerned that Title X service providers would use Title X funding to fund abortion by reiterating the statutory and regulatory requirements that prevent Title X funds from being used for abortions, and said that family planning services help prevent abortions by preventing unintended pregnancies.

Will the change last?

The Final rule was promulgated in accordance with notice-and-comment requirements under the federal Administrative Procedure Act, and its changes were announced months ago, which may prevent it from being considered a “Midnight Rule.” According to the New York Times, repealing these regulations would require either a new comment-and-notice rulemaking process, or a joint resolution of disapproval by the House and Senate, with concurrence by the new president. Both supporters and opponents of family planning services are preparing to fight for or against the regulations, while President-elect Trump, who has promised to repeal many of the Obama Administration’s regulatory actions, offered contradictory messages on Planned Parenthood and abortion during his presidential campaign.