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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
40 years of agency practice under the program across numerous administrations. Such an interpretation would also appear contrary to decades of close Congressional oversight, including annual Title X appropriations riders, and a specific annual line item appropriation through which Congress can beand has beenquite clear as to how the agency should operate.
In readopting the 2000 rule, the program is also reinstating interpretations and policies under section 1008 of the statute that were in place for much of the programs history and published in the Federal Register in 2000. 65 FR 41281 July 3, 2000. Those program policies discuss, for example, the requirements for separation:
Separation of Title X from abortion activities does not require separate grantees or even a separate health facility, but separate bookkeeping entries alone will not satisfy the spirit of the law. Mere technical allocation of funds, attributing federal dollars to nonabortion activities, is not a legally supportable avoidance of section 1008.
65 FR at 41282 July 3, 2000. Also, while a Title X project may provide a referral for abortion, which may include providing a patient with the name, address, telephone number, and other relevant factual information such as whether the provider accepts Medicaid, charges, etc. about an abortion provider, the project may not take further affirmative action such as negotiating a fee reduction, making an appointment, providing transportation to secure abortion services for the patient. 65 FR at 41281 July 3, 2000.
Finally, while a Title X project may not advocate for abortion as a method of family planning, it may be a dues paying participant in a national abortion advocacy organization, so long as there are other legitimate program-related reasons for the affiliation such as access to certain information or data useful to the Title X project. Id. Interested entities are encouraged to consult this notice.
The Department agrees that it is not under a duty to subsidize abortion. It does not do so, and it is prohibited from doing so. As discussed in the NPRM, legislative history and longstanding appropriations riders prohibit Title X
funds from being expended on abortion.
See, e.g., Consolidated Appropriations Act, 2021, Public Law 116260, Div. H, sec. 207, 134 Stat. 1182, 1590. More generally, Section 507 of the Consolidated Appropriations Act, 2021
prohibits federal funds from being used for abortion except for cases of rape, incest, or maternal health. Id. at sec.
507. As discussed in the NPRM and
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above, the Department employs a variety of mechanisms to enforce such restrictions, such as regular grant reports, compliance monitoring visits, third-party audits, compliance guidance, and grantee education. None of these oversight tools have uncovered any more than minimal problems with grantee compliance under section 1008.
The Department also agrees that no particular private organizations have a right to Title X funding. The program is returning to the program requirements in operation for the majority of its history because those requirements best serve individual clients and the public health. In the wake of the 2019 rule, both private organizations and states withdrew from the program, leaving multiple states without any Title X
providers and the agency struggling to meet its mandate to provide family planning services for low-income populations in areas of high need.
Though in some places organizations and jurisdictions were able to temporarily provide resources to replace the loss of Title X funds, providers were not always able to provide the same scope of services or seamless care coordination that Title X projects can provide. Public comments from those organizations made clear that they were not able to provide the same breadth of services, nor were they able to provide services with the same schedule of discounts for low-income clients.
The Department disagrees that Title X
grant funds allow for the creation of slush funds or that those funds are fungible. As stated above, the Department has multiple methods by which it confirms that grant funds are spent for grant purposes, and it has concluded that grantees comply, not just with section 1008, but with Congressional directives and other requirements of the program. Again, the 2019 rule could point to no significant compliance issues related to the diversion of Title X grant funds, and a fresh review of decades of evidence has uncovered no such issues. A ban on organizations receiving Title X funds for lawful activities outside of the Title X
project would go beyond the 2019 rule and raise serious constitutional issues.
And even if such a restriction might conceivably be lawful, the Department clearly has the discretion to open eligibility to the most qualified Title X
providers.9
9 Zolna, M.R., & Frost, J.J. 2017, August 2.
Publicly funded family planning clinics in 2015:
Patterns and trends in service delivery practices and protocols. Guttmacher Institute. Retrieved from https www.guttmacher.org/report/publiclyfunded-family-planning-clinic-survey-2015.

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B. Data on Negative Public Health Consequences of 2019 Rule Comments: A few comments took issue with data presented in the NPRM.
They stated that the Department used flawed data and failed to account for the effects of COVID19, instead attributing the loss of grantees and subrecipients and the decline in services to the 2019
rule. One comment stated that the Department does not have data to assess the effect of the 2019 rule. Another comment argued that the decline in clients served is the result of a long time decline since the 2000 rule. One of those same comments reflected the belief that the decline in services is instead related to changes in insurance, changes in poverty, and use of the most effective contraceptive methods, and that declines have been continuous since 2000.
Some of the comments also took issue with the Departments position that the withdrawal of grantees from the program in response to the 2019 rule resulted in a decline in services, as they stated those services were continued with state and private funds and not discontinued, and the Departments claims of fewer services provided is a red herring. The same comment pointed out the proposed rule noted that seven states saw an increase in clients after the 2019 rule. Another comment cited Planned Parenthood data showing that Planned Parenthood provided more services in 2020 compared to 2019 and that other providers stepped in to fill the gaps in services left when Planned Parenthood exited the Title X program.
It cited Ohio as an example and said that additional clients would be served post-COVID19. A final opposing comment claimed that the number of new providers applying for Title X
funds increased after the publication of the 2019 rule.
In contrast, numerous comments supported the 2021 NPRM and shared data on the negative impact that the 2019 rule has had in their states and communities, reinforcing the Departments statements in the NPRM.
Many of the comments spoke to the drastic reduction in clients they were able to serve after the 2019 regulation.
One comment stated, throughout the history of Title X, since its inception in 1970, there has never been as sharp a decline in the number of patients served by the program as occurred between 2018 and 2019. More than losing numbers of clients, numerous comments spoke to the types of clients they have not been able to serve and the nature of services that are being lost because clients cannot afford those services.

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