Compliance with Statutory Program Integrity Requirements

May 18, 2021 — The U.S. Department of Health and Human Services (HHS) has proposed a new rule to revise the Title X family planning program regulations. The comment period for the Notice of Proposed Rulemaking (NPRM), entitled “Ensuring access to equitable, affordable, client-centered, quality family planning services” closed on May 17, 2021. All comments on the proposed rule received by the deadline are under review.

In May 2019, district courts in California, Maryland, Oregon, and Washington issued preliminary injunctions preventing the U.S. Department of Health and Human Services (HHS) from enforcing the March 2019 Final Rule, titled Compliance With Statutory Program Integrity Requirements. Among other things, the Final Rule ensures statutory compliance with Section 1008 of Title X, which states, “None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.”

Motions panels in the Fourth and Ninth Circuit stayed the injunctions, but plaintiffs in the Ninth Circuit cases filed motions for an administrative stay of the Ninth Circuit’s stay order. On July 11, 2019, an en banc panel of the Ninth Circuit denied those requests for an administrative stay and made clear that the order staying the injunctions remained in effect. By denying those motions, the en banc Ninth Circuit—along with the Fourth Circuit and a federal district court in Maine that recently denied another motion for a preliminary injunction—has made clear that HHS may begin enforcing the Final Rule. Consistent with those rulings, compliance with physical separation was required starting March 4, 2020.

On February 14, 2020 the U.S. District Court for the District of Maryland issued a permanent injunction against enforcing the 2019 Title X Final Rule in the State of Maryland only. Because of this permanent injunction, all services provided in Maryland must be in compliance with the previous regulations until further notice.

Compliance with the requirements of the Final Rule, except for the physical-separation requirements, was therefore required as of Monday, July 15, 2019.