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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
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Circuit also held that the 2019 rule violated an annual appropriations rider requiring nondirective counseling, the non-directive mandate.1
Losing parties in both cases sought review from the Supreme Court in October of 2020. The Court granted certiorari on February 22, 2021, consolidating the cases. No. 20429. On March 12, 2021, the parties stipulated to dismiss the cases under Supreme Court Rule 46.1.
While courts and judges were split on the ultimate legality of the 2019 rule, evidence of the negative public health consequences of the rule quickly became clear, and significant. After the implementation of the 2019 rule, 19
Title X grantees out of 90 total grantees withdrew from the program. The 19
grantees that withdrew from the Title X
program included 11 State Departments of Health and independent Family Planning Associations and eight Planned Parenthood organizations.2
These organizations made clear to the Department in formal correspondence that they relinquished their grants out of concern that the 2019 rule interfered with the patient-provider relationship and compromised their ability to provide quality healthcare to all clients.
One organization commented that the Final Rule makes it impossible for us to provide healthcare and information to patients consistent with medical ethics and evidence-based standards of care.
Another organization stated that the 2019 rule would fundamentally compromise the relationship our patients have with us as trusted providers of this most personal and private healthcare. Another organization said that the new regulations interfere with a healthcare providers ability to provide healthcare in accordance with accepted standards of care for reproductive health. Still another said, these new rules require our providers to deprive their patients of the information and services they 1 Both circuit courts also differed on the permissibility of the rule under section 1554 of the Affordable Care Act.
2 Withdrawn grantees included 1 Family Planning Association of Maine, Inc., 2 Hawaii Department of Health, 3 Health Imperatives, Inc.
MA, 4 Illinois Department of Health, 5
Maryland Department of Health, 6 Massachusetts Department of Public Health, 7 Oregon Health Authority, 8 Planned Parenthood Association of Utah, 9 Planned Parenthood Minnesota, North Dakota, South Dakota, 10 & 11 Planned Parenthood of Great Northwest & the Hawaiian Islands two separate grants, 12 Planned Parenthood of Greater Ohio, 13 Planned Parenthood of Illinois, 14 Planned Parenthood of Northern New England, 15 Planned Parenthood of Southern New England, 16 Public Health Solutions NY, 17 New York Department of Health, 18 Vermont Agency of Human Services, and 19 Washington State Department of Health.

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need to make and carry out fully informed decisions about their reproductive health. Our providers ethical and professional responsibilities do not allow this. Although it might have been possible, at the time the 2019
rule was promulgated, to predict that providers would withdraw, any such prediction would have been uncertain.
That so many providers did in fact withdraw from the program is a change in circumstances that, in the Departments view, demands reconsideration of the 2019 rule.
In addition to the grantees that withdrew from Title X completely, many other grantees that continued to receive Title X funding had subrecipients and service sites within their existing networks withdraw from the program. Overall, 19 grantees, including 231 subrecipients and 945
service sites, withdrew from the Title X
program shortly after the rule took effect. Additionally, 18 grantees that continued in the program reported losses to their service network i.e., exiting subrecipients because of the 2019 final rule. As a result, the Title X
program provided services to 844,083
fewer clients in 2019 compared to 2018.3 Comparing Family Planning Annual Report FPAR data for 2018 and 2019, OPA estimates that 94% or 789,960 of the total decrease 844,083
in clients can be attributed to the 2019
rule. A total of 41 states and two territories saw a decrease in clients served in 2019 compared to 2018. Of those, seven saw a decline of more than 40 percent in clients served AK, HI, MD, UT, VT, WI, and WV, seven saw a decline of 3140 percent CA, CT, ME, MN, NH, NM, and NY, seven saw a decline of 2130 percent AZ, IL, MA, MT, NJ, OR, and WA, seven saw a decline of 1120 percent IA, IN, MI, OH, PA, VA, and the Marshall Islands, nine saw a decline of 510 percent AL, AR, KY, NE, NC, ND, SC, TN, and WY, and six saw a decline of five percent or less DE, CO, LA, OK, SD, and the U.S.
Virgin Islands. Only nine states, six territories and the District of Columbia saw their number of clients served stay the same FL, KS, MO, RI, and TX
between 2018 and 2019 1% or increase GA, ID, MS, NV, six territories, and DC, with the majority experiencing a small annual increase of between 70
to 3,000 clients. Minor fluctuations notwithstanding, 789,960 fewer clients were served, which had a disproportionate impact on minority 3 OPA, 2020. Family Planning Annual Report:
2019 National Summary Report. Accessed on March 9, 2021 from https opa.hhs.gov/sites/default/files/
2020-09/title-x-fpar-2019-national-summary.pdf.

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clients, adolescent clients, lowerincome individuals, and those without insuranceall outcomes directly attributable to the 2019 rule. Most concerningly, there are six states that formerly had Title X services that currently have no Title X services available HI, ME, OR, UT, VT, and WA
and seven states with Title X services available on a very limited basis AK, CT, IL, MA, MN, NH, and NY. The Department believes that these stark facts, which became clear only after the promulgation of the 2019 rule, justify reconsideration of that rule.
To ensure continuity of services and maintain a safe environment for clients and staff during the pandemic, Title X
providers followed guidance issued by the Centers for Disease Control and Prevention CDC, OPA, and others to manage supply and staffing shortages, and they implemented creative strategies tailored to their circumstances and clientele virtual telehealth, for example. Despite these efforts, in 2020
vs. 2019, Title X had 193 fewer subrecipients 867 vs. 1,060 and 794
fewer service sites 3,031 vs. 3,825. The decrease in the size of the Title X
service network appears to have substantially reduced the availability of and, consequently, access to Title X
services. In 2020, Title X served 1.6
million fewer family planning users than in 2019 1.5 million vs. 3.1
million, and Title X service sites delivered care to 302 fewer users per site 507 vs. 809. Furthermore, in 2020, Title X conducted almost 2.0 million fewer family planning encounters than in 2019 2.7 million vs. 4.7 million.
While the 2020 data undoubtedly reflect the public health emergency related to the COVID19 pandemic, the pattern of the losses in the program initiated by the 2019 rule was exacerbated in 2020
for an already disrupted and weakened network.
Of additional concern, the 2019 rule has had a disproportionate impact on low-income clients, who are precisely the population that the Title X program was established to serve. The 2019 rule has significantly decreased the number of low-income, uninsured, and racial and ethnic minorities accessing Title X
services. Following implementation of the 2019 rule, 573,650 fewer clients under 100 percent of the federal poverty level FPL; 139,801 fewer clients between 101 percent FPL to 150 percent FPL; 65,735 fewer clients between 151
percent FPL and 200 percent FPL; and 30,194 fewer clients between 201
percent FPL to 250 percent FPL received Title X services. This contradicts the purpose and intent of the Title X
program, which is to prioritize and
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