Senator Patty Murray's office issued the following today:
Trump-Pence Administration
plans to restrict Title X family planning program through new domestic
gag rule, undermining care for millions of families
In comment to Health
Department, Senators Murray, Cantwell, & 43 colleagues outline the
many ways the Trump Administration’s proposed changes fly in the face of
the goals of the Title X program by reducing access to family planning
services
Changes would make providers that serve millions of women across the country ineligible for funding
New proposed domestic gag rule
would prevent providers from giving patients information on their full
range of reproductive health care options
More than 80,000 women in Washington state could be impacted by proposed rule – LINK
Proposed rule restricting
access to reproductive care comes as President Trump pushes Supreme
Court nominee vetted by far-right groups determined to overturn Roe v. Wade
ICYMI: Senators
Murray and Cantwell Join More than 200 Members of Congress to Speak Out
Against Effort to Restrict Women’s Access to Reproductive Health Care in
Washington State and Across Country – LINK
(Washington, D.C.) — Today, U.S. Senators
Patty Murray (D-WA), top Democrat on the Senate health committee, Maria
Cantwell (D-WA), a senior member of the Senate Finance Committee, and
43 of their colleagues submitted a comment to Secretary Alex Azar at the
Department of Health and Human Services (HHS) strongly opposing the
Trump-Pence Administration’s proposal to implement a domestic gag rule
on Title X, restricting patients’ access to the Title X family planning
program and reducing health care access for millions of women. They
called on the Administration to reverse course and revoke its planned
changes.
“As U.S. Senators, we are deeply concerned
the Trump-Pence Administration’s proposed rule to update the Title X
program includes a number of significant changes that run counter to
Congress’s intent in establishing the program and, like so many other
harmful steps this Administration is taking, will make it significantly
harder for women across the country to get the health care they need.
The proposed rule would allow politicians with extreme ideological views
to interfere with women’s personal health care decisions, undermine the
provider-patient relationship, and leave women’s access to health care
increasingly dependent on how much money they have and where they live.
The proposed rule would have devastating impacts on women across our
country and we urge you to reverse course and revoke it,” wrote the senators.
In their comment, the senators outlined the many
ways the Trump-Pence Administration’s proposed domestic gag rule would
undermine the Title X program’s ability to provide family care services
to people across the country. The senators blasted proposed changes that
would make providers that serve millions of women ineligible for
funding and a new domestic gag rule that would interfere with providers’
ability to give patients information about their full range of
reproductive care options. They also criticized changes that would
undermine requirements that Title X-funded providers only offer services
that are “medically approved.”
The proposed rule restricting women’s access to
reproductive health care comes as President Trump attempts to appoint an
extreme Supreme Court nominee, Judge Brett Kavanaugh, who anti-abortion
groups vetted and approved as a fifth vote to turn the Supreme Court
against women’s constitutional rights by striking down Roe v. Wade. According to a recent analysis,
80,000 women in Washington state could be affected by President Trump’s
proposed domestic gag rule, and on Monday, Governor Jay Inslee announced
that he would pull Washington state from the federal Title X program if
the proposed rule goes into effect. Previously, both Senators Murray
and Cantwell have been vocal in their opposition to the Trump-Pence domestic gag rule and its potential impact on women in Washington state and nationwide.
The comment was submitted by Senator Murray,
Senator Cantwell, and U.S. Senators Sherrod Brown (D-OH), Sheldon
Whitehouse (D-RI), Edward Markey (D-MA), Elizabeth Warren (D-MA), Kamala
Harris (D-CA), Richard Blumenthal (D-CT), Tammy Baldwin (D-WI), Jeanne
Shaheen (D-NH), Maggie Hassan (D-NH), Patrick Leahy (D-VT), Jon Tester
(D-MT), Mazie Hirono (D-HI), Tom Carper (D-DE), Tammy Duckworth (D-IL),
Jack Reed (D-RI), Kirsten Gillibrand (D-NY), Robert Menendez (D-NJ), Ben
Cardin (D-MD), Debbie Stabenow (D-MI), Chris Van Hollen (D-MD), Chris
Murphy (D-CT), Michael Bennet (D-CO), Dick Durbin (D-IL), Chris Coons
(D-DE), Bernie Sanders (I-VT), Brian Schatz (D-HI), Dianne Feinstein
(D-CA), Tim Kaine (D-VA), Catherine Cortez Masto (D-NV), Bill Nelson
(D-FL), Amy Klobuchar (D-MN), Angus King (I-ME), Bob Casey (D-PA), Cory
Booker (D-NJ), Chuck Schumer (D-NY), Ron Wyden (D-OR), Gary Peters
(D-MI), Jeff Merkley (D-OR), Tom Udall (D-NM), Tina Smith (D-MN), Claire
McCaskill (D-MO), Martin Heinrich (D-NM), and Mark Warner (D-VA).
PDF of comment is available HERE.
Full text of comment is below:
July 31, 2018
The Honorable Alex Azar II
Secretary of Health and Human Services
Attention: Family Planning
U.S. Department of Health and Human Services
Hubert H. Humphrey Building, Room 716G
200 Independence Avenue SW
Washington, DC 20201
RE: HHS–OS–2018–0008, Proposed Rule for Compliance With Statutory Program Integrity Requirements
Dear Secretary Azar,
As U.S. Senators, we are deeply concerned the
Trump-Pence Administration’s proposed rule to update the Title X
program includes a number of significant changes that run counter to
Congress’s intent in establishing the program and, like so many other
harmful steps this Administration is taking, will make it significantly
harder for women across the country to get the health care they need.
The proposed rule would allow politicians with extreme ideological views
to interfere with women’s personal health care decisions, undermine the
provider-patient relationship, and leave women’s access to health care
increasingly dependent on how much money they have and where they live.
The proposed rule would have devastating impacts on women across our
country and we urge you to reverse course and revoke it.
1. Congress intended for the Title X program to create a comprehensive and integrated system for family planning services.
On a bipartisan basis, Congress established
the Title X family planning program to address the unmet need for family
planning services and to make this specialized care available to all,
regardless of their income. Before Title X was enacted in 1970, 60
percent of counties lacked a family planning program.[1]
In the process of establishing the nation’s family planning program,
Congress engaged in extensive committee hearings and floor debates that
document its intent that the program be comprehensive and integrated.[2]
In addition, in arguing for the creation of a
nationwide family planning program, President Richard Nixon stated, “it
is clear that the domestic family planning services supported by the
Federal Government should be expanded and better integrated.”[3]
He further called for “more extensive[]” reliance on the “existing
network” of providers already participating in a small federal program
under the Office of Economic Opportunity.
Congress emphasized its interest in comprehensive and coordinated approaches to family planning,
including making effective contraception available to all women and
especially low-income women, throughout the legislative debate around
the Title X bill. Senate report language from 1970 stated, “[T]his
legislation is designed to make comprehensive, voluntary family planning
services, and information relating thereto, readily available to all
persons in the United States desiring such services; to provide greatly
increased support for biomedical, behavioral, and operational research
relevant to family planning and population; to develop and disseminate
information on population growth; and to coordinate and centralize the
administration of family planning and population research programs
conducted by the Department of Health, Education, and Welfare.”[4]
The Senate Committee on Labor and Public Welfare’s Subcommittee on
Health described its efforts to organize “a comprehensive and
coordinated attack on the … family planning problem” and worked to bring
about a “coordinated, concerted federal focus on this problem.”[5]
Senator Thomas Eagleton (D-MO) endorsed as “indispensably vital to this
hearing” a Louisiana physician’s testimony in favor of a “coherent,
adequately-funded, well-coordinated national family-planning-service
delivery system.”[6]
It is clear that Congress intended for the
Title X program to focus on addressing the nation’s family planning
needs and that efforts now to apply ideological restrictions to the
program that will limit qualified providers from participating run
counter to Congress’s intent.
2. By imposing restrictions on providers,
the proposed rule would have a devastating impact on the provider
network and on the ability of women to access health care from a trusted
provider of their choice.
Physical Separation Requirements
The proposed rule’s numerous
requirements for physical and administrative separation would make it
more difficult for women to access the family planning services they
need and would undermine Title X’s role as a broad family planning
program. Title X-funded clinics provide services to 4 million low-income
patients each year, including women who traditionally face health
disparities, such as women living in rural communities[7]
and women of color who make up 51 percent of the Title X recipients. Of
all Title X patients, 32 percent are Hispanic women or Latina, 21
percent are black women, and 4 percent are Asian American or Pacific
Islander women.[8]
The proposed rule would jeopardize these
patients’ access to health care by making it harder for health centers
to operate. The proposed rule mandates that Title X-funded health
centers be physically and financially separate from programs that
provide, refer for, or even “present” abortion as an option. While
Title X-funded health programs have long complied with strict financial
segregation requirements, the proposed rule would offer broad latitude
to HHS to disqualify providers based on an onerous list of physical and
administrative standards that have no grounding in a provider’s actual
ability to provide needed care and could prove impossible for some
centers to comply with.
Besides requiring separate accounting
records, the proposed rule directs HHS to assess program grant
applicants for separate office entrances; separate treatment,
consultation, examination, and waiting rooms; separate personnel and
personnel workstations; and separate medical records systems among
numerous other criteria that would impose massive expense and redundancy
on health care providers. The economic analysis of this proposed rule
suggests that it would cost between $10,000 and $30,000 in order to
comply with these requirements. This cost does not reflect what would be
expected to create separate facilities, which would be required to
comply with the separation requirements. It is very likely that these
costs would cause clinics to close or reduce services, resulting in
reduced access to health care.
The separation requirements would
undermine what Congress intended for the Title X program, by essentially
eliminating the ability for qualified providers to participate in the
Title X network.
Prohibited Activities
The proposed regulation also includes a
broad prohibition on more than a dozen activities related to abortion
that are certain to create confusion among providers and patients and
will limit the accessibility of health care services. The list includes
such actions as creating a “favorable attitude” toward abortion, an
undefined term that could severely limit the providers or health centers
to which a patient could be referred. The lack of clarity within the
proposed regulation may also lead qualified providers to avoid
permissible or medically advisable activities for fear of being found in
violation of the law.
Expert providers of family planning are concerned about how they will comply with these overly broad restrictions.[9]
Consequently, health centers may be forced to forego funding rather
than risk incidentally running afoul of the standards. This onerous
design seems to reveal the true purpose of the new regulatory scheme: to
discourage specialized reproductive health centers from participating
in the program at all.
By discriminating against clinics
unless they agree to unacceptable intrusions on the patient-provider
relationship, the proposed rule could force health centers to stop
participating in the Title X program or to shut down entirely, both of
which would severely limit access to reproductive health care.
3. By gagging providers from
providing full, confidential, unbiased information about their
patients’ health care options, the proposed rule would further undermine
the patient-provider relationship.
The proposed rule would deny funding to
health centers unless they agree to restrict the services and advice
their clinicians can offer to patients.
Unbiased counseling
Patients rely on their health care providers
for sound advice and comprehensive, unbiased information about their
health care options. The American Medical Association’s Code of Medical
Ethics advises that “[t]ruthful and open communication between physician
and patient is essential for trust in the relationship and for respect
for autonomy.”[10]
Yet, the proposed rule restricts a provider’s ability to counsel her
patients based on her clinical judgment and consistent with her
professional obligations and training. By blocking health care
practitioners from honestly answering patients’ questions or providing
comprehensive information, these restrictions interfere with this
relationship of trust.
By removing the requirement for nondirective
options counseling and prohibiting providers from referring patients for
abortion care, the proposed rule would make it harder for patients to
get the information they need to make the best decisions for themselves
and their families and violates longstanding appropriations law that
requires all pregnancy counseling to be nondirective.[11]
Further, the regulations purport to permit limited abortion referral by
allowing doctors to provide their patients a list of providers, some of
whom may offer abortion care, but the list could not explicitly
identify which services are provided by the health care providers on the
list. Such restrictions on information sharing interfere with
providers’ ability to discuss health care options with their patients.
In addition, the regulation seems to exclude nurses, physician’s
assistants, certified nurse midwives, trained counselors, or any other
health professionals from sharing even that type of limited list.
Because most Title X centers are staffed by a variety of types of health
care providers, few Title X providers would be able to engage in even
this limited opportunity for assisting patients who request referrals
for abortions.[12]
Confidentiality
The strong confidentiality protections
in the current Title X regulations and in the underlying statute are
vital to ensuring that adolescents and young adults seek the health care
they need. The proposed rule would require rather than encourage family
involvement unless providers can meet a strict documentation
requirement, which may not be appropriate for all patients and would
undermine the provider-patient relationship, and could cause adolescents
to avoid seeking health care at all.[13]
4. The proposed rule would undermine the
standard of care and change the focus of the program, by removing the
requirement that providers offer a broad range of contraceptive methods
and instead requiring them to prioritize primary care services.
The proposed rule would eliminate the
longstanding requirement that Title X programs provide “medically
approved” family planning methods, potentially allowing purveyors of
untested, unproven family planning methods to be eligible for program
funds.[14]
The proposed rule would also weaken language in current law ensuring
that local Title X projects offer access to a broad range of family
planning methods. In combination, these provisions could permit a
non-medical crisis pregnancy center, which promotes a decidedly
anti-contraception agenda and employs no trained health care providers,
to nonetheless qualify for Title X funds. These proposed changes would
likely reduce low-income patients’ options for health care and
jeopardize their access to effective forms of contraception, including
long-acting reversible contraception, like the intrauterine device (IUD)
and implant.
The proposed rule attempts to morph the
program’s focus away from dedicated family planning services towards
primary care. It requires that providers prioritize
comprehensive primary health care either by providing such services
onsite or by having robust referral linkages with primary care
providers.
While primary care is an important area of
health services, disqualifying family planning specialists unless they
emphasize primary care moves the program away from its purpose: to meet
the unmet need for family planning services. In 2015, nearly
three-quarters of Title X-funded sites reported being focused on
providing reproductive health services.[15]
Under the proposed rule, patients who currently obtain care from
standalone family planning clinics would be at higher risk of
discontinued contraceptive use and unintended pregnancy. Evidence from
Texas has shown that replacing a family planning program with a program
that eliminated specialized family planning clinics from participating
and instead relied on primary-care “was associated with adverse changes
in the provision of contraception.”[16]
Among women who relied on injectable contraceptives, the rate of
contraceptive continuation decreased, and the rate of childbirth covered
by Medicaid increased following the State’s move away from committed
family planning networks. [17]
Additionally, by redefining the “low-income
families” to whom the Title X program provides free or reduced-cost
services, to include families whose employers choose not to cover
contraceptive services for women, the proposed rule would include an
entirely new population in the Title X program. Categorizing people as
“low-income” based on their employer’s decision to not cover
contraception – rather than on their actual income – would undermine the
program’s original purpose to serve underserved populations. The
proposed rule also does not contemplate the additional costs of
providing free or reduced-cost contraception to women who would only
qualify because of a decision by their employer.
The Department of Health and Human Services
has not demonstrated a need for this rule. Rather than seeking to ensure
that qualified providers are able to offer the reproductive health care
and family planning services that are needed in this country, the
proposed rule prioritizes ideology and ignores the goals and intent of
Congress in establishing a nationwide family planning program. We urge
you to rescind the proposed rule and to instead focus on efforts to
enhance the quality of and access to reproductive health care for women
throughout the nation.
Sincerely,
[1] Family Planning Services in the U.S.: A National Overview, 1968, Family Planning Perspectives, Vol 1, No. 2 (Oct. 1969).
[2]
116 Congressional Record, 91 Congress, 2 session, 1970; 91 S. 2108; 91
H.R. 19318; “Family Planning Services” Hearing HRG-1970-FCH-0043;
“Family Planning and Population Research, 1970” Hearing
HRG-1969-LPW-0014;
https://congressional.proquest.com/congressional/docview/t33.d34.91_pl_572?accountid=45340.
[3] President Richard Nixon, “Special Message to the Congress on Problems of Population Growth,” July 18, 1969.
[4]
“Expanding, Improving, and Better Coordinating the Family Planning
services and Population Research Activities of the Federal Government,”
Senate Committee on Labor and Public Welfare, July 7, 1970.
[5]
“Family Planning and Population Research, 1970,” Senate Committee on
Labor and Public Welfare, Senate Subcommittee on Health, December 8,
1969.
[6] Id.
[7]
National Family Planning and Reproductive Health Association. Title X:
Helping Ensure Access to High-Quality Care. (March 2015) at https://www.nationalfamilyplanning.org/document.doc?id=514.
[8] HHS Office of Population Affairs, Family Planning Annual Report: 2016 National Summary (Aug. 2017), 12 at https://www.hhs.gov/opa/sites/default/files/title-x-fpar-2016-national.pdf.
[9] Letter to Secretary Azar (May 2018) https://www.nationalfamilyplanning.org/document.doc?id=3728.
[10] “Withholding Information from Patients: Code of Medical Ethics Opinion 2.1.3,” American Medical Association.
https://www.ama-assn.org/delivering-care/withholding-information-patients.
https://www.ama-assn.org/delivering-care/withholding-information-patients.
[11] Consolidated Appropriations Act, 2018, Pub. L. 115-141, Div. H, Title II, 132 Stat. 348, (2018).
[12] Christina Fowler, et al, Title X Family Planning Annual Report: 2016 National Summary, RTI International (August 2017). https://www.hhs.gov/opa/sites/default/files/title-x-fpar-2016-national.pdf.
[13] Abigail English, Carol A. Ford, The HIPPA Privacy Rule and Adolescents: Legal Questions and Clinical Challenges, Perspectives on Sexual And Reproductive Health, Vol. 36, Issue 2, (March/April 2004) https://www.guttmacher.org/journals/psrh/2004/hipaa-privacy-rule-and-adolescents-legal-questions-and-clinical-challenges.
[14] “Compliance With Title X Requirements by Project Recipients in Selecting Sub recipients,” 36 Federal Register 179 (September 15, 1971).
[15] Mia Zolna, Jennifer J. Frost, Publicly Funded Family Planning Clinics in 2015: Patterns and Trends in Service Delivery Practices and Protocols, Guttmacher Institute (November 2016) https://www.guttmacher.org/report/publicly-funded-family-planning-clinic-survey-2015.
[16] Amanda J. Stevenson, et al., Effect of Removal of Planned Parenthood from the Texas Women's Health Program, New England Journal of Medicine, Vol. 374 (March 3, 2016) https://www.nejm.org/doi/full/10.1056/nejmsa1511902.
[17] Id.
