Family planning clinics will have more time to comply with a Trump administration rule that prohibits physicians from counseling patients about abortion and bars them from referring women for the procedures.
The Department of Health & Human Services does not intend to bring enforcement actions against taxpayer-funded clinics if they are making good-faith efforts to comply with the new rules, according to a memo issued July 20. Such good faith efforts include a written assurance by Aug. 19 that clinics are not providing abortions nor including abortion in their family planning methods, according to the emailed guidance sent by Diane Foley, MD, HHS Deputy Assistant Secretary at the Office of Population Affairs (OPA). Clinics must also detail an action plan describing the steps they will take to comply with the Title X changes and start those actions immediately, according to the memo, obtained by this news organization.
“In the past, the U.S. Department of Health & Human Services, Office of Population Affairs, has exercised enforcement discretion in appropriate circumstances,” according to the memo. “Given the 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. OPA is committed to working with grantees to assist them in coming into compliance with the requirements of the final rule.”
The decision comes a week after HHS warned family planning clinics that receive federal money to immediately stop providing referrals and counseling on abortion or face revocation of funding. An email from HHS on July 15 stated that the agency was requiring immediate compliance of the Title X changes consistent with recent court rulings. The warning came just before the start of a national Title X grantee meeting held in Washington.
The changes to the Title X program make health clinics ineligible for funding if they offer, promote, or support abortion as a method of family planning. Title X grants generally go to health centers that provide reproductive health care – such as STD testing, cancer screenings, and contraception – to low-income individuals. Under the rule, the government will withdraw financial assistance to clinics if they allow counseling or referrals associated with abortion, regardless of whether the money is used for other health care services. The rule also imposes physical separation requirements for health centers that offer abortions.
More than 20 states and several abortion rights organizations sued over the rules in four separate states. District judges in Oregon, Washington, and California temporarily blocked the rules from taking effect. In a June 20 decision, the 9th U.S. Circuit Court of Appeals ruled the federal government may go forward with its plan to restrict Title X funding from clinics that provide abortion counseling or that refer patients for abortion services. The decision overturned the lower court injunctions.
In the July 20 memo, Dr. Foley wrote that, in addition to the Aug. 19 requirements, clinics must send written confirmation by Sep. 18 outlining the steps taken to comply with the Title X changes and provide any relevant documentation needed for HHS to verify the compliance. By March 4, 2020, a written statement must be submitted affirming the clinic is in compliance with the requirement for physical separation between Title X services and abortion services.
The National Family Planning & Reproductive Health Association, a plaintiff in one of the challenges, called the administration’s July 20 memo “wholly insufficient” and said the clinics need more guidance about how to move forward with the rule changes.
“It’s just absurd to think that a few bullet points amount to guidance,” association officials said in a July 21 statement. “We urge [the agency] to take the time to properly expand on and better describe how it will interpret aspects of the rule – using examples that reflect the wide range of provider settings and administrative structures present in Title X. Once again, [the agency] falls far short of linking the rule to day-to-day practice, leaving the entire family planning network in the dark on how they need to operate to stay in the program.”
At presstime, HHS had not responded to a message seeking comment on the requirements. In her note, Dr. Foley wrote that more guidance on the changes were forthcoming and that grantees unable to meet the required time line may request a deadline extension from the agency.
HHS has previously said that the Title X changes ensure that grants and contracts awarded under the program fully comply with the statutory program integrity requirements, “thereby fulfilling the purpose of Title X, so that more women and men can receive services that help them consider and achieve both their short-term and long-term family planning needs.”