Quiero saber acerca de...

56154

Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
conflicts with the OCR. A case-by-case approach to investigations will best enable the Department to deal with any perceived conflicts within fact-specific situations.
The Department declines to definitively interpret RFRA or the First Amendment in this context for largely the same reasons. Not only do the conscience protections more specifically allow providers to object to referral and counseling for abortion requirements, but the Title X rules in force for decades prior to the 2019 rule also existed side by side with RFRA and the First Amendment with no conflict. However, in light of the comments received, and to eliminate any confusion, the Department has noted in this final regulation that providers may separately be covered by federal statutes protecting conscience and/or civil rights.

lotter on DSK11XQN23PROD with RULES3

E. Options Counseling Comments: The Department received thousands of comments expressing support for the reinstatement of the requirement to offer nondirective options counseling to pregnant patients. Many comments expressed support for reversing the 2019 rules restrictions on what referrals can be provided to clients and allowing providers to offer patients complete information about their healthcare options and refer patients to providers who offer services to meet those needs.
One comment stated that reinstating the 2000 regulations would remove this undue governmental interference into medical care and will help ensure patients receive medically accurate, comprehensive information from their physicians.
The Department also received comments in opposition to removing restrictions on referring for abortion services and requiring nondirective counseling. Several comments opposed removing restrictions on what referrals can be provided to clients in general, and a few opposed removing restrictions which state that only advanced practice providers can provide nondirective counseling. Many comments opposing the rule expressed a belief that the information and counseling requirements in this provision violate section 1008 of the Title X statute.
Others believed that requiring that grantees refer sic individuals to abortion providers conflicts with the free speech and religious freedom of grantees. Still others expressed concern that the requirement could limit the type of providers in the program due to conscience concerns.

VerDate Sep<11>2014

22:06 Oct 06, 2021

Jkt 256001

Response: The Department appreciates the comments in support of this provision. The Department believes that offering pregnant clients the opportunity to receive neutral, factual information and nondirective counseling on all pregnancy options and providing referral upon request for options the client wishes to receive are critical for the delivery of quality, client-centered care. The Department agrees that restoring this provision will remove unnecessary limitations governing the patient-provider relationship and will enable healthcare providers to offer complete and medically accurate information and counseling to their clients.
The Departments response to comments opposing this provision is included earlier in Section II. A.
Compliance with Section 1008 42
U.S.C. 300a6 and D. Application of Conscience Statutes to Title X. The NPRM language for this provision would restore the regulatory text from the 2000 regulation, which successfully governed the Title X program for decades without opposition from major medical organizations and was widely accepted by grantees.
F. Subrecipient Nondiscrimination Comments: The Department received many comments on state policies restricting subrecipient participation for reasons unrelated to the providers ability to provide care. The majority of these comments favored a regulatory prohibition on such restrictions because they often exclude the best family planning providers for no discernible purpose. Many comments stated that State policies putting restrictions on how state funds are allocated, called tiering, make it difficult or impossible for privately operated reproductive health-focused providers to receive funding. Tiering and other prohibitions against abortion providers often exclude the specialist providers that are the most qualified and best equipped to help Title X patients achieve their family planning goals. Such restrictions, which are in place in approximately 15
states, can make access for certain subpopulations and geographic areas more difficult. Many comments stressed that expelling well-qualified, trusted family planning providers from publicly funded health programs like Title X has adverse effects on patients access to critical family planning and sexual healthcare.
The Department also received many comments, including from multiple state Attorneys General, condemning any regulation in this area. Many of these objections stated that such a
PO 00000

Frm 00012

Fmt 4701

Sfmt 4700

regulation would undermine federalism and intrude on the States selfgovernance for no good reason, and, most prominently, violate the Congressional Review Act, 5 U.S.C.
801808. Under that law, an agency may not promulgate a rule that is substantially the same as one that has been disapproved by Congress. In 2016, the Department enacted a rule barring projects from rejecting sub-grantees for non-programmatic reasons. 81 FR 91852
Dec. 19, 2016. Congress subsequently revoked the rule. P.L. 11523 4/13/
2017. Multiple comments asserted that any regulation in this area would be unlawful unless Congress specifically authorized it.
Response: All proposed additions to the 2000 rule received an overwhelmingly positive response, except the proposal to include a subrecipient non-discrimination provision. After carefully considering several factors, the agency is declining to include a subrecipient nondiscrimination provision in this rulemaking. Foremost among the Departments considerations is the sense of urgency in the interest of public health to complete this rulemaking. This schedule allows for a final rule to be effective before the award of the next round of competitive funding for the Title X program. This, in turn, will enable applicants that previously withdrew from participation in the program as a result of the previous regulation to apply for funding.
The Department still believes state restrictions on subrecipients unrelated to care hamper the ability of the program to achieve its goals. However, the overriding task of this rulemaking is to undo the negative public health effects of the previous rule. That result is most effectively reached by not including a subrecipient nondiscrimination provision in this rulemaking. Organizations in states with restrictive laws may still apply directly to receive Title X grants see PHS Act sec. 1001b; 59.3.
G. Other Comments Comments: While many comments were specific to certain sections of the proposed rule, a sizeable number were more general in nature, or commented on portions of the preamble. Many of these general comments were summarized in detail in the sections above, and the remainder of the general comments are summarized here.
Of those that support the proposed rule, a large number of comments expressed general support for removing the harmful effects of the 2019 rule on Title X services. A similarly large
E:FRFM07OCR3.SGM

07OCR3