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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
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same standards as in Title X, and the same schedule of discounts and subsidies were not applied as required in the Title X program. Finally, many of the states that provided emergency or one-time funds, or those organizations that were able to raise funds privately, indicated through their comments that they could only do so on a very shortterm basis, that it was not sustainable for the long term, and that it came at a pricerequiring elimination of other critical services.
Given the data presented in the preamble and the data presented above, the Department disagrees with the claim that Title X services would improve after COVID19 absent a change in the 2019 rule. The loss in clients served, the states with no service providers, and the states with limited service providers occurred in 2019 after enactment of the 2019 rule and prior to COVID19, making it unlikely that the number of clients served or services provided would increase to pre-2019 levels or above without a change to the 2019 rule.
Comparing FPAR data for 2018 typical year and 2019 post 2019 rule but preCOVID, OPA estimates that 94%
789,960 of the total decrease 844,083
in family planning clients between 2019
and 2020 can be attributed to the 2019
rule. Further comparing FPAR data for 2018 typical year and 2020 postCOVID, OPA estimates that 63% or 1.5
million of the total decrease 2.4
million in family planning users between 2018 and 2020 can be attributed to the final rule. The grantees and subrecipients that left the program have indicated that they will not return to the program under the 2019 rule.
Coupled with the lack of additional applicants to the Departments funding opportunity, the Department maintains the decline in access, clients, and services from 2018 levels will continue until a new rule is in place.
C. Grantee and Subrecipient Compliance Comments: Several comments expressed concern that the 2021 NPRM
did not include language from 59.1 in the 2019 rule, stating, the requirements imposed by these regulations apply equally to grantees and subrecipients.
Several comments also expressed concern that the 2021 NPRM did not include language from 59.13 specifically requiring grantees to provide assurance that their project does not provide abortion and does not include abortion as a method of family planning. One comment stated that the removal of an explicit compliance requirement, without at minimum an explanation that subrecipients are assumed to have
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to comply with all Title X regulations, suggests that such compliance is no longer required.
Another comment claimed that the departure of providers from the Title X
network after the introduction of the 2019 rule confirmed that Title X
funding had been used by those providers for impermissible purposes.
Additionally, the comment claimed that the withdrawal demonstrates an unwillingness to comply with program requirements, and that healthcare providers were accepting Title X
funding for years without complying with the statutory requirements of the program.
Response: The Department disagrees with the comments and does not believe that it is necessary to include language within the Title X regulations stating that the regulations apply equally to grantees and subrecipients because this is already a requirement in the HHS
grants regulations that apply to Title X
grantees. All Title X grantees are subject to 45 CFR part 75, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards. In fact, Title X Notices of Funding Opportunity NOFOs state that successful applicants that accept an award agree that the award and all activities under the award are subject to all provisions of 45 CFR part 75.
Specifically, 45 CFR 75.352 sets out the requirements for pass-through entities and clearly specifies that all passthrough entities must a ensure that every subaward is clearly identified to the subrecipient as a subaward and includes the following information at the time of the subaward and if any of these data elements change, include the changes in subsequent subaward modification. . . . Required information includes . . . 2 All requirements imposed by the passthrough entity on the subrecipient so that the Federal award is used in accordance with Federal statutes, regulations and the terms and conditions of the Federal award. Given that Title X grantees are required to follow 45 CFR part 75, and since 45 CFR
part 75 makes clear that all requirements of the grant, including federal statutes, regulations, and terms and conditions of the federal award, apply to all subrecipients, the Department believes it is clear that the Title X regulations will continue to apply equally to all grantees and subrecipients without needing to include separate language in the Title X
regulations.
Similarly, the Department does not deem it necessary to include language within the regulation itself requiring
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grantees to provide assurance that their project does not provide abortion and does not include abortion as a method of family planning. The Department has explicitly stated in all NOFOs that all grantees must comply with the Title X
statute, regulations, and legislative mandates, and applicants certify in the application materials that they will comply with all applicable requirements of all other Federal laws, executive orders, regulations, and policies governing this program. Additionally, compliance with program statutes and appropriations act requirements is included as a standard term of the grant award. Therefore, during the application process, and by accepting funds, grantees have assured their compliance to the statute, regulations, and legislative mandates.
The Department also disagrees with the contention that withdrawal of organizations following the 2019 rule proves that these organizations were non-compliant with the statutory requirements. The primary reasons cited by most grantees for withdrawing from the Title X program after promulgation of the 2019 rule was out of concern that the 2019 rule interfered with the patient-provider relationship and compromised their ability to provide quality healthcare to all clients. For certain grantees, the regulation was also in direct conflict with laws established by their state.
Furthermore, there is no evidence to suggest that the grantees that withdrew from the Title X program had had any difficulties complying with the Title X
statute, regulations, or legislative mandates. OPA practices, and practiced long before the 2019 rule, robust monitoring processes to ensure grantee compliance with the statute and regulations, including through regular grant reports, compliance monitoring visits, and legally required audits. As stated in the Background section, close oversight of Title X grantees for almost two decades under the 2000 rule uncovered no misallocation of Title X
funds by grantees. OPA oversight did identify occasional instances over the years where grantees needed to update their written policies to clearly reflect the Title X statutory language, but OPA
never found any instance where grantees were co-mingling funds with activities not allowed under the statute.
The Department believes that grantee compliance with the Title X statute and regulations has not been an issue throughout the history of the Title X
program, and the compliance monitoring methods that have historically been applied by OPA prior to the 2019 rule have ensured that
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