*This is an archive page. The links are no longer being updated. 1992.03.20 : Regulation -- Title X Abortion Contact: Lucy Eddinger (202) 245-6335 March 20, 1992 The following guidance by the Department of Health and Human Services was provided today: March 20, 1992 William R. Archer III, M.D., F.A.C.O.G. Deputy Assistant Secretary for Population Affairs Implementation of Title X Abortion Regulation Regional Health Administrators Regions I-X This guidance on the Title X regulation is for use by Regional Office staff in implementing the February 2, 1988, regulation construing the statutory prohibition on abortion as a method of family planning in Title X projects, salient provisions of which are found at 42 CFR sections 59.7 through 59.10. This guidance supplements the previous guidance provided by the memorandum dated May 30, 1991, regarding implementation of the February, 1988, regulation and is designed to clarify certain operational questions which have arisen concerning the implementation and scope of the regulation. Guidance on Compliance with 42 CFR 59.7 Under 42 CFR 59.7, as promulgated on February 2, 1988, an applicant for or recipient of a Title X grant is required to provide: assurance satisfactory to the Secretary that it does not include abortion as a method of family planning. Such assurance must include, as a minimum, representations (supported by such documentation as the Secretary may request) as to compliance with each of the requirements in Sect. 59.8 through Sect. 59.10. In the following paragraphs, the conditions of compliance that are stated for applicants also pertain to current grantees. The Assurance The applicant or grantee must provide to the appropriate Regional Health Administrator (RHA) the following assurance within 30 days from the date of notification from the RHA: The applicant [or grantee] hereby assures that it will not include abortion as a method of family planning in its Title X project and the project will comply with the requirements of 42 CFR 59.8 through 59.10, as promulgated on February 2, 1988. The applicant [or grantee] further agrees to submit to the Secretary promptly any further documentation concerning its arrangements to comply with this assurance that the Secretary may request. The regulation seeks to ensure project integrity and defines the "Title X project" as the identified program which is approved by the Secretary for support under Section 1001 of the Public Health Service Act. Applicants and grantees should note that the regulatory requirements apply to all Title X project funds, that is, Title X grant funds, non-Federal funds, and grant-related income generated by the Title X project. The regulatory requirements do not apply to grantee activities which are not a part of the Title X project. Initial Documentation In addition to the assurance, the RHA may request documentary evidence from an applicant or grantee on a case-by-case basis in situations where such information is deemed necessary. Such information may include: (1) Copies of protocols to be used by the Title X project in counseling and referring pregnant clients. (2) Copies of referral lists to be used by the Title X project in referring pregnant clients under 42 CFR 59.8(a). (3) Copies of timetables for revision of existing protocols or referral lists to bring them into compliance with the regulation. (4) The plan of the applicant or grantee for training Title X project staff about the regulatory requirements. (5) The plan of the applicant or grantee for monitoring compliance with the regulation at the clinic or other service delivery level, including the type and frequency of monitoring activities to be undertaken. (6) The plan of the applicant or grantee for resolving any issue of compliance with the physical and financial separation requirements of 42 CFR 59.9, including identification of any components of the Title X project in which action needs to be taken to come into compliance, a description of the steps to be taken, and timetable for resolving the compliance issues. Timetable for Implementation To provide consistent implementation of the regulation, written notification to the grantees from the RHA should occur within two weeks after receiving this guidance. RHAs will notify the Office of Population Affairs (OPA) of the date that official notice went out in their regions. Grantees must provide an assurance to the RHA within 30 days of the date of official notification. Following receipt of the required assurance by the RHA, grantees have an additional 30 days to come into compliance. If a grantee believes that it cannot meet the compliance deadline, it must submit a request for an extension of the deadline in writing to the appropriate RHA within 30 days of original notification, along with an explanation or documentation of the need for the extension. The RHA will give timely notification to the grantee of its decision on a requested extension. The compliance deadline may also be extended when it is determined that such extension is needed to promote the orderly and effective implementation of the regulation. Clarification of Title X Issues The purpose of this program is to provide pre-pregnancy family planning services, not to provide services to pregnant women. Accordingly, this memorandum applies only to the services provided to the small percentage of clients who are found to be pregnant. Speech about Abortion Title X projects may not counsel, refer or steer clients to abortion. The regulation does not, however, forbid Title X projects from mentioning the word "abortion." In general, Title X staff should state that abortion counseling and abortion referral are not services provided by Title X projects. Title X staff will make it clear that they can refer a client to the prenatal and social services necessary to promote her own health and that of her unborn child. Referrals may be made by Title X projects to full-service health care providers that perform abortions, but not to providers whose principal activity is providing abortion services. Referral to specialized medical care for medical conditions which may complicate pregnancy still must be made, even if the ultimate result may be the termination of her pregnancy. This referral seeks to provide a pregnant woman with the best medical management of her pregnancy and to ensure both her health and the health of her unborn child. This kind of referral must be distinguished from referrals which are made specifically for the purpose of obtaining abortions. This latter kind of referral is considered to be inconsistent with the statutory intention of Title X. Physicians in Title X The February 2, 1988, Title X regulation will be implemented in accordance with the November 5, 1991, memorandum of the President and the November 19, 1991, memorandum of the Secretary to the Assistant Secretary for Health. The first numbered paragraph in both the President's and the Secretary's memoranda provides: "Nothing in these regulations is to prevent a woman from receiving complete medical information about her condition from a physician." This statement is intended to apply to medical information provided only by a physician directly to his or her patient, in a clinic visit or a subsequent telephone conversation directly with the physician. Title X staff must provide women diagnosed as pregnant with a list of appropriate prenatal and/or social services as outlined in 59.8(a)(2). Referrals may be made by Title X programs to full-service health care providers that perform abortions, but not to providers whose principal activity is providing abortion services. Section 59.5(b)(1) of the regulation requires a physician to refer a pregnant woman with a health problem to medical care appropriate to her particular health problem, even if that referral ultimately results in an abortion. Continuity of Care The regulation governs only the operation of programs funded by Title X. Cases in which Title X programs are operated in conjunction with programs supported by other funds have raised questions about the extent of separation required by the regulation. When a Title X client is found to be pregnant she must be provided the list of prenatal and social service providers as outlined in 59.8(a)(2). A Title X provider which is also funded by another source to provide prenatal services or a co-located provider of services may qualify, through provision of the required services, to be on the list as a referral source for the pregnant client. The client must have the opportunity to freely choose which source of care she prefers. If the client chooses and clinic time permits, provision of continuing prenatal care may follow immediately upon the determination of pregnancy and the provision of the list. Physical and Financial Separation Requirements Section 59.9 of the regulation requires that Title X programs be organized so that they are physically and financially separate from other activities which are prohibited from inclusion in the Title X program. This requirement is to ensure program integrity. Although the proposed July 1987 regulation would have provided per se exclusion of any abortion-related activities from co- location with a Title X program, the final regulation of February, 1988, adopts a more flexible "facts and circumstances" approach that provides the Department with greater ability to make individual determinations for the many complex circumstances that will be presented. Actual provision of abortion in a clinic in which a Title X project is co-located will be weighed most heavily in the balancing test. OPA Oversight In order to ensure consistency in implementing the regulation nationwide, OPA will monitor the program to ensure that Regional Offices: (1) receive assurances from grantees and any accompanying documentation of plans to achieve compliance; (2) conduct site visits, program reviews, or investigations of specific inquiries initiated in response to complaints; (3) review requests made by grantees to extend the compliance deadline. Please forward any questions not answered in this guidance or any previous guidance relating to interpretation or implementation of the regulation to OPA before giving guidance. This will enable OPA to consult with the Office of General Counsel, and ensure consistent implementation. If the information upon which the determination of compliance is to be based is insufficient, the Regional Office will obtain additional information. If a determination is adverse to the grantee, standard grants management procedures will be followed by the Department in seeking a remedy.