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From Health Law Daily, March 8, 2019

AMA, Planned Parenthood take aim at Title X family-planning fund restrictions

By Rebecca Mayo, J.D.

The AMA and multiple Planned Parenthood organizations are challenging a new HHS Final Rule that imposes additional restrictions on the use of family-planning assistance program funds under Title X.

Multiple organizations have come together to file suit in the U.S. District Court in Oregon to set aside and enjoin a final rule issued by HHS that alters the family-planning assistance program established by Title X of the Public Health Service Act. The American Medical Association (AMA), Oregon Medical Association, Planned Parenthood Federation of America, Inc, Planned Parenthood of Southwestern Oregon, Planned Parenthood Columbia Willamette, and two physicians filed a complaint alleging that the rule would politicize the practice of medicine and the delivery of health care.

The rule. On March 4, 2019 HHS issued the final rule titled ‘Compliance with Statutory Program Integrity Requirements’ which reaffirmed the prohibition on the use of Title X funds for abortion and prohibited referrals for abortions (see HHS firm on ensuring no Title X funds go towards abortionMarch 4, 2019). The final rule imposed a gag requirement that bans abortion referrals, mandates prenatal referrals, and prevents providers from telling patients how and where they can access abortion. Additionally, while providers have been separating the Title X fund activities from the non-Title X fund activities for decades with no evidence that the funds are being misused, the final rule imposed a separation requirement to separate Title X facilities, personnel and workstations, and health care records from non-Title X activities.

Gag requirement. The organizations assert that the gag requirement imposes a content-based and viewpoint-based unconstitutional proscription on medical professionals concerning abortion-related speech that would have practitioners in the Title X program direct women toward continuing pregnancy to term. The final rule prohibits referrals for abortion while mandating referrals for prenatal care, regardless of what a patient requests. The organizations allege that the gag requirement interferes with communications about patients’ health care options and is thus fundamentally at odds with physicians’ ethical and professional obligations to provide comprehensive information to their patients and to refer a patient to another professional if her care falls outside the treating clinician’s practice.

Separation requirement. The organizations argue that the final rule imposes vague separation requirements on Title X providers that engage in so-called "prohibited activities," which are defined so broadly as to include virtually anything having to do with abortions. To comply with this restriction, providers may be required to make costly renovations to their health care centers, purchase new facilities, duplicate staff positions, and duplicate administrative systems, such as bookkeeping and health records. The organizations are concerned that the costs of compliance would exceed the amount of Title X funding that provides receive, making compliance effectively impossible and forcing providers to withdraw from Title X. Providers being forced to shut down will reduce patient access to healthcare in many areas.

Additional requirements. According to the organizations, the final rule alters the eligibility and section criteria HHS uses to decide which Title X projects to fund, which could shift funds away from established Title X providers such as Planned Parenthood. It also imposes infrastructure restrictions which require grantees to use the majority of grant funds to provide direct services to clients.

Requested relief. The organizations ask the court to declare the final rule contrary to law, contrary to constitutional right, arbitrary and capricious, and invalid. They ask the court to set aside and vacate the final rule and to issue preliminary and permanent injunctive relief to enjoin HHS from enforcing the final rule.

Companies: American Medical Association; Oregon Medical Association; Planned Parenthood Federation of America, Inc; Planned Parenthood of Southwestern Oregon; Planned Parenthood Columbia Willamette.

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