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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
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with the opportunity to reach their full potential.
To measure the ability of an applicant to advance health equity, OPA could assess how the location of planned Title X service sites compares to the need for family planning services within the communities served. OPA also could assess how the applicant plans to provide services in a manner that is culturally and linguistically appropriate. OPA could assess how the project plans to monitor outcomes by clients income, race, ethnicity, geographic location, etc., as well as how the project plans to address differences in outcomes through the Title X services provided. OPA could also ask applicants to describe the uptake of services by client demographics to identify existing disparities and to describe how they would work to reduce existing disparities in service provision. In addition, some agencies within the Department have incorporated disparity impact statements as a part of the post-grant award process. Disparity impact statements are just one example of a tool that OPA may consider in order to measure demographic, cultural, and linguistic data that identify the populations in which health disparities exist and the quality improvement plan designed to address the noted disparities. These are just examples of how this new grant review criterion could be operationalized within future NOFOs.
The Department will provide details on how all grant review criteria will be measured in future NOFOs, including the new grant review criterion on advancing health equity. The Department also plans to develop training and technical assistance products to assist family planning providers in advancing health equity.
In conclusion, the Department adopts the language from the NPRM for 59.7
as final with one technical correction to replace his estimate with an estimate to reflect inclusive language.
59.10. Confidentiality In the NPRM, the Department proposed revising the provision of the 2000 regulations related to confidentiality, which was section 59.11
in the 2000 regulations, but is now section 59.10, to add a widely accepted practice in the Title X community, indicating that reasonable efforts must be made to collect charges without jeopardizing client confidentiality. In addition, the Department proposed adding a requirement that grantees must inform the client of any potential for disclosure of their confidential health
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information to policyholders where the policyholder is someone other than the client. Since state and local laws may vary across jurisdictions e.g., some are likely to result in notification to the policyholder that the client has received services, others provide for an opt out process whereby the client can elect that such a notification will not be made, this addition was added to ensure that the client understands the implications for using their insurance and the options available for them to maintain confidentiality.
Specifically, the NPRM stated, All information as to personal facts and circumstances obtained by the project staff about individuals receiving services must be held confidential and must not be disclosed without the individuals documented consent, except as may be necessary to provide services to the patient or as required by law, with appropriate safeguards for confidentiality. Otherwise, information may be disclosed only in summary, statistical, or other form which does not identify particular individuals.
Reasonable efforts to collect charges without jeopardizing client confidentiality must be made. Recipient must inform the client of any potential for disclosure of their confidential health information to policyholders where the policyholder is someone other than the client.
Comments: The Department received numerous comments in support of this provision and the proposed revisions.
Many comments expressed support for restoring the confidentiality protections that have been a hallmark of the Title X program. Several comments expressed support for allowing providers to return to the high standard of confidentiality that all patients, including adolescents, deserve when accessing healthcare services, especially ones as potentially sensitive as family planning and sexual health.
Several comments also specifically supported the new language on potential disclosure to policyholders.
The Department also received numerous comments requesting further revisions to the regulatory text for 59.10.
Numerous comments urged the Department to add language to the regulatory text to clarify that Title X
projects may not require consent of parents or guardians for the provision of services to minors, nor can any Title X
project staff notify a parent or guardian before or after a minor has requested and/or received Title X family planning services.
Comments underscored that this language has been longstanding guidance from OPA for the Title X

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program and is included in OPA
Program Policy Notice 201401:
Confidential Services to Adolescents.
One comment stated, We encourage you to take all possible steps when finalizing the rule to ensure that adolescents are treated with the same client-centered approach as all other patients at Title X-funded health centers. In addition, many comments generally opposed the removal of language from the regulation that encouraged family participation in the decision of a minor patient to seek family planning services and requested that the language be added back into the final regulation.
Several other comments expressed concern with a new rule from the HHS
Office of the National Coordinator for Health Information Technology ONC
about Electronic Health Records and information blocking. Several comments requested that the Department confirm in the final rule that withholding of sensitive information in compliance with 59.10 would fall within the ONC
rules privacy exception and would not constitute information blocking.
Response: The Department appreciates the comments in support of the revised provision in the NPRM. The Department agrees with comments to add specific language to the final rule regarding adolescent confidentiality to reflect Title X legal requirements. Since 1981, the Title X statute has required that, to the extent practical, grantees shall encourage family participation in Title X projects. 42 U.S.C. 300a.
However, such involvement is not mandatory and grantees are required to protect clients confidentiality.
Specifically with respect to adolescents, courts have for decades recognized minors rights to receive confidential services under the Title X program. See, e.g., Planned Parenthood Federation of America, Inc. v. Heckler, 712 F.2d 650
D.C. Cir., 1983 Title X expressly protects minors rights to seek services confidentially. See also OPA Program Policy Notice 201401: Confidential Services to Adolescents.
The Department does not agree that specific language needs to be added to the final rule to clarify the applicability of the ONC rule to Title X. Instead, as described below related to section 59.12, OPA suggests that grantees seek guidance from ONC with respect to the applicability of the informationblocking provision, as ONC administers this rule and, thus, would be in the best position to interpret it. With this revision, the final language in the 2021
rule for 59.10 is, a All information as to personal facts and circumstances obtained by the project staff about
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