TITLE: B-308128, Abstinence Education: Applicability of Section 317P of the Public Health Service Act, October 18, 2006
BNUMBER: B-308128
DATE: October 18, 2006
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B-308128, Abstinence Education: Applicability of Section 317P of the Public Health Service Act, October 18, 2006
B-308128
October 18, 2006
The Honorable Michael O. Leavitt
Secretary of Health and Human Services
Subject: Abstinence Education: Applicability of Section 317P of the Public
Health Service Act
Dear Mr. Secretary:
In responding to a congressional request on federal abstinence education
grant programs, we identified a legal matter that requires the attention
of the Department of Health and Human Services (HHS). In this regard,
section 317P(c)(2) of the Public Health Service Act.[1] requires certain
educational materials to contain medically accurate information about
condom effectiveness. HHS believes that this statute does not apply to
materials prepared and used by recipients of federal abstinence education
grants. As discussed below, we conclude that this requirement would apply
to abstinence education materials prepared and used by federal grant
recipients, depending upon the substantive content of those materials. We
did not assess any particular abstinence education materials for
compliance with section 317P(c)(2) and, therefore, reach no conclusions
regarding statutory violations. However, in light of our conclusion, we
recommend that HHS reexamine its position and adopt measures to ensure
that, where applicable, abstinence education materials comply with this
requirement.
BACKGROUND
As you know, HHS supports efforts to provide abstinence education
primarily through grants to states, local communities, and private
organizations under three programs. First, under section 510 of the Social
Security Act,[2] HHS makes formula grants to states for the provision of
abstinence education, targeting those most likely to have children
out-of-wedlock. In addition, under section 1110 of the Social Security
Act,[3] HHS awards community-based grants through a competitive process to
public and private entities for the purpose of creating an environment
that supports postponing sexual activity until marriage.[4] Grants may be
used to support before and after school programs, adult and peer
mentoring, and parent education groups.[5] Through the adolescent family
life program established by Title XX of the Public Health Service Act,[6]
HHS also makes competitive grants to public and private nonprofit
organizations, including community, school, and faith-based organizations,
to facilitate abstinence education. The state formula and community-based
grant programs are administered by the Administration for Children and
Families (ACF) within HHS and the adolescent family life program is
administered by the Office of Population Affairs, which is located in the
Office of the Secretary.
Section 510(b)(2) of the Social Security Act defines "abstinence
education" for purposes of the state formula grant program, effectively
requiring grantees to meet eight criteria;[7] annual appropriations acts
and program announcements have extended these criteria to the
community-based and adolescent family life program grants as well.[8]
Three of these criteria focus on the physical consequences of sexual
activity, and one explicitly references sexually transmitted diseases.
Specifically, abstinence education for which federal funds may be provided
must (1) have as its exclusive purpose teaching the social, psychological,
and health gains to be realized by abstaining from sexual activity; (2)
teach that abstinence from sexual activity is the only certain way to
avoid out-of-wedlock pregnancy, sexually transmitted diseases, and other
associated health problems; and (3) teach that sexual activity outside of
the context of marriage is likely to have harmful psychological and
physical effects. Annual announcements about the three grant programs also
instruct grantees to incorporate material related to sexually transmitted
diseases.[9]
During the course of our congressionally requested work on abstinence
education, we identified a federal statute relevant to these grants.
Section 317P of the Public Health Service Act addresses human
papillomavirus specifically, as well as sexually transmitted diseases
generally. Section 317P(c)(1) requires the Secretary to prepare and
distribute educational materials to the public and health care providers
that include information on human papillomavirus. Among other things, the
materials are to address modes of transmission and the consequences of
infection. Subsection (c)(2), which is pertinent to our review, states:
Educational material under paragraph (1), and all other relevant
educational and prevention materials prepared and printed from this date
forward for the public and health care providers by the Secretary
(including materials prepared through the Food and Drug Administration,
the Centers for Disease Control and Prevention, and the Health Resources
and Services Administration), or by contractors, grantees, or subgrantees
thereof, that are specifically designed to address [sexually transmitted
diseases] including [human papillomavirus] shall contain medically
accurate information regarding the effectiveness or lack of effectiveness
of condoms in preventing the [sexually transmitted disease] the materials
are designed to address. Such requirement only applies to materials mass
produced for the public and health care providers, and not to routine
communications.
By letter of May 26, 2006, we solicited the views of HHS's General Counsel
on the applicability of section 317P(c)(2) to the three abstinence
education grant programs described above. In a response dated July 26,
2006, the Assistant Secretary for Children and Families advised that the
statute does not apply, given the purpose of abstinence education programs
and the populations targeted by program grantees.
DISCUSSION
By its own terms, section 317P(c)(2) is quite broad. It applies not only
to the educational material on human papillomavirus described in the first
paragraph of section 317P(c), but to "all other relevant educational and
prevention materials" prepared by the Secretary of HHS. In addition, it
extends to materials prepared by contractors, grantees, and subgrantees
and to material pertaining to sexually transmitted diseases including, and
thus not limited to, human papillomavirus. However, the provision contains
a significant limitation: it extends only to materials that are
"specifically designed to address" sexually transmitted diseases. The
statute does not define this phrase and the legislative history provides
no guidance as to its meaning.[10]
HHS has not issued a regulation or published guidance interpreting section
317P(c)(2). In addition, we found no references to that provision, which
was enacted in December 2000, in grant application guidance or program
announcements on abstinence education programs dating from 2001.[11]
Notably, HHS included a reference to section 317P(c)(2) in proposed
content guidelines for AIDS-related materials issued in 2004.[12] However,
the proposed guidelines stated only that "When HIV materials include a
discussion of condoms, the materials must comply with Section 317P . . .
."[13] This statement could be read to suggest that the statute only
applies to materials designed to address sexually transmitted diseases if,
and only if, the materials discuss condom use.
In our view, the interpretation of section 317P(c)(2) reflected in the
proposed guidelines is not consistent with the statute. Neither the
language nor the structure of section 317P(c)(2) supports an
interpretation that the need to provide medically accurate information on
condom effectiveness arises only where the materials include information
on condoms.[14] The provision does not state that educational materials
prepared by the Secretary or by grantees that are specifically designed to
address condom use shall contain medically accurate information regarding
the effectiveness of condoms in preventing sexually transmitted diseases.
To the contrary, it provides that materials that are specifically designed
to address sexually transmitted diseases shall contain medically accurate
information on condom effectiveness. The syntax of the sentence and
Congress's choice of the mandatory "shall"[15] clearly indicate that
materials specifically designed to address sexually transmitted diseases
are to contain medically accurate information as to the effectiveness of
condom use in preventing transmission of such diseases. Therefore, the
Secretary, grantees, and others to whom the statute applies are required
to include information on condom effectiveness, and that information must
be medically accurate, in materials otherwise meeting the statutory
criteria.
In response to our inquiries, the Assistant Secretary for Children and
Families stated that materials prepared by its abstinence education
grantees do not fall within the scope of section 317P(c)(2). He explained
that the primary purpose of these programs is not to address sexually
transmitted diseases and that, while grantees may address issues related
to sexually transmitted diseases in communicating the importance of
abstinence, they are to address these issues only within the broader
context of abstinence education, as defined by law. Moreover, he pointed
out that a variety of organizations receive abstinence education grants
and materials are produced for different target populations.
The Assistant Secretary's response is not persuasive. Both the statutory
definition of abstinence education and grant program materials distributed
by HHS suggest that section 317P(c)(2) would apply to materials prepared
and used by recipients of abstinence education grants, depending upon the
substantive content of those materials. As discussed above, the governing
statutory provision and program announcements incorporate multiple
references to the physical consequences of sexual activity, specifically
requiring information on sexually transmitted diseases to be an integral
part of abstinence education programs. Notably, the 2006 program
announcement for the community-based abstinence education program
instructs grantees to develop curricula around themes and further
instructs them to incorporate material around the subtheme of sexually
transmitted diseases. In this regard, it offers several illustrations of
appropriate program content and endorses the use of disease-specific
information. It states that abstinence education programs may contain
information on the limitations of contraception to consistently prevent
sexually transmitted diseases, as well as information on the epidemiology
of sexually transmitted diseases in the United States.[16] This
information could include infection rates and modes of transmission for
sexually transmitted diseases.[17] Therefore, grantees could incorporate
sufficiently specific information about these diseases to lead to the
conclusion that the materials were "specifically designed to address"
sexually transmitted diseases, whether or not they were primarily designed
to do so.[18]
The content of a student workbook commonly used by abstinence education
grantees further suggests that section 317P(c)(2) may apply to federally
funded abstinence education materials.[19] The workbook contains eight
chapters, each of which focuses on a dimension of abstinence. One chapter
is dedicated to the topic of sexually transmitted diseases. Among other
things, the chapter provides information on several sexually transmitted
diseases, including human papillomavirus, in a series of brief paragraphs.
For example, it explains that the human immunodeficiency virus or HIV
affects the body's T-4 cells, which are central to the immune system and
necessary for the body to fight diseases. It also points out that there is
no cure for HIV. Although the chapter contains general statements about
condom effectiveness, it does not contain information about the
effectiveness or lack of effectiveness of condoms in preventing HIV or the
other diseases it describes.
The Assistant Secretary's view that section 317P(c)(2) is inapplicable
since ACF grants are made to a variety of grantees and materials are
prepared for different target populations is also not persuasive. We do
not believe that the applicability of section 317P(c)(2) turns on whether
materials are prepared for all members of the public, as the Assistant
Secretary suggests. As a general matter, abstinence education programs
target broad segments of the population, namely, preadolescents and
adolescents. While grantees may not prepare identical materials for all
recipients of program services, they nonetheless may produce educational
materials in large quantities for those members of the public for whom the
materials are appropriate. We also note that the 2004 proposed content
guidelines for AIDS-related materials did not reflect the Assistant
Secretary's apparent view that section 317P(c)(2) only applies to
materials distributed to all members of the public. Those proposed
guidelines were designed to apply to materials used by school-based and
other assistance programs rather than materials distributed to all members
of the public.
CONCLUSION
The statutory requirement to include medically accurate information on
condom effectiveness would apply to abstinence education materials
prepared and used by federal grant recipients, depending upon the
substantive content of those materials. While general references to
sexually transmitted diseases would appear insufficient to trigger the
application of section 317P(c)(2) of the Public Health Service Act, the
inclusion of more detailed information as an essential element of the
materials' design would require the incorporation of medically accurate
information on condom effectiveness. As stated above, we did not assess
any particular materials for compliance with section 317P(c)(2) and,
therefore, reach no conclusions regarding statutory violations. However,
in light of our conclusion, we recommend that HHS reexamine its position
and adopt measures to ensure that, where applicable, abstinence education
materials comply with this requirement.
Sincerely yours,
Gary L. Kepplinger
General Counsel
cc: The Honorable Henry A. Waxman
Ranking Minority Member
Committee on Government Reform
House of Representatives
The Honorable Pete Stark
Ranking Minority Member
Subcommittee on Health
Committee on Ways and Means
House of Representatives
The Honorable Sherrod Brown
Ranking Minority Member
Subcommittee on Health
Committee on Energy and Commerce
House of Representatives
The Honorable Barbara Boxer
The Honorable Maria Cantwell
The Honorable Tom Coburn
The Honorable Richard J. Durbin
The Honorable Russell D. Feingold
The Honorable Dianne Feinstein
The Honorable Tom Harkin
The Honorable James M. Jeffords
The Honorable Edward M. Kennedy
The Honorable Frank R. Lautenberg
The Honorable Patrick Leahy
The Honorable Patty Murray
United States Senate
The Honorable Howard L. Berman
The Honorable Lois Capps
The Honorable Jay Inslee
The Honorable Barbara Lee
The Honorable Nita M. Lowey
The Honorable Betty McCollum
House of Representatives
------------------------
[1] 42 U.S.C. sect. 247b-17(c)(2) (2000).
[2] 42 U.S.C. sect. 710 (2000 & Supp. III 2003).
[3] 42 U.S.C. sect. 1310 (2000 & Supp. IV 2004). This section authorizes
the Secretary to make grants to states, local governments, and other
entities for a wide range of demonstration projects.
[4] Announcement, Department of Health and Human Services, Administration
for Children and Families, Community-Based Abstinence Education Program,
Funding Opportunities FY 2006, p. 3.
[5] Id.
[6] 42 U.S.C. sect.sect. 300z et seq. (2000). Title XX authorizes the
Secretary to make grants for demonstration projects to help communities
provide appropriate care and prevention services in easily accessible
locations. The term "prevention services" means necessary services to
prevent adolescent sexual relations. 42 U.S.C. sect. 300z-1(a)(8).
[7] 42 U.S.C. sect. 710(b)(2)(A)-(H).
[8] See, e.g., Departments of Labor, Health and Human Services, and
Education, and Related Agencies Appropriations Act, 2006, Pub. L. No.
109-149, 119 Stat. 2833, 2855-56 (providing funds for community-based and
adolescent family life program abstinence education grants consistent with
the criteria at section 510(b)(2) and, with respect to community-based
grants, further providing for grantees not to provide any other education
regarding sexual conduct, except to the extent that health information or
services are legally required to be provided and are provided in a setting
different from abstinence education). See also Notice, Department of
Health and Human Services, Office of the Secretary, Availability of Funds
for Adolescent Family Life Demonstration Projects, 69 Fed. Reg. 17,888-89
(April 5, 2004); Announcement, Department of Health and Human Services,
Administration for Children and Families, Community-Based Abstinence
Education Program, Funding Opportunities FY 2006, p. 2.
[9] See, e.g., Announcement, Department of Health and Human Services,
Administration for Children and Families, Community-Based Abstinence
Education Program, Funding Opportunities FY 2006, pp. 2, 7-8;
Announcement, Department of Health and Human Services, Administration for
Children and Families, Section 510 Abstinence Education Program, FY 2006
Program Announcement, p. 9; Notice, Department of Health and Human
Services, Office of the Secretary, Availability of Funds for Adolescent
Family Life Demonstration Projects, 69 Fed. Reg. 17,888-89 (April 5,
2004).
[10] The sponsor of the provision was particularly concerned that women
had been misled to believe that condoms were effective in preventing human
papillomavirus and had suffered serious health consequences as a result.
146 Cong. Rec. H9844 (daily ed. Oct. 12, 2000) (statement of
Representative Coburn). See also 146 Cong. Rec. H2692-93 (daily ed. May 9,
2000) (statement of Representative Coburn). This provision was initially
included as an amendment to a bill that was subsequently enacted as the
Breast and Cervical Cancer Prevention and Treatment Act of 2000. A similar
provision had been contained in an earlier bill introduced by
Representative Coburn. See H.R. 3248, 106^th Cong. sect. 2 (1999). The
provision was ultimately enacted as part of the Consolidated
Appropriations Act, 2001. See Pub. L. No. 106-554, app. A, sect. 516, 114
Stat. 2763, 2763A-72 to 73 (Dec. 21, 2000).
[11] For the state and community-based programs, we reviewed the annual
announcements for 2001 through 2006. For the adolescent family life
program, we reviewed announcements for 2002 and 2004, the latest years for
which they were published.
[12] See Notice, Department of Health and Human Services, Centers for
Disease Control and Prevention, Proposed Revision of Interim HIV Content
Guidelines for AIDS-Related Materials, Pictorials, Audiovisuals,
Questionnaires, Survey Instruments, Marketing, Advertising and Web Site
Materials, and Educational Sessions in CDC Regional, State, Territorial,
Local, and Community Assistance Programs, 69 Fed. Reg. 33,824 (June 16,
2004); Notice, Department of Health and Human Services, Centers for
Disease Control and Prevention, Interim HIV Content Guidelines for
AIDS-Related Materials, Pictorials, Audiovisuals, Questionnaires, Survey
Instruments, Marketing, Advertising and Web Site Materials, and
Educational Sessions in CDC School-Based Assistance Programs, 69 Fed. Reg.
33,826 (June 16, 2004).
[13] 69 Fed. Reg. at 33,825 and 33,828.
[14] See U.S. National Bank of Oregon v. Independent Ins. Agents of
America, 508 U.S. 439, 455 (1993) ("Statutory construction `is a holistic
endeavor' . . . and, at a minimum, must account for a statute's full text,
language as well as punctuation, structure, and subject matter.").
[15] See, e.g., United States v. Booker, 543 U.S. 220, 233-34 (2005);
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).
[16] Announcement, Department of Health and Human Services, Administration
for Children and Families, Community-Based Abstinence Education Program,
Funding Opportunities FY 2006, p. 8.
[17] Id.
[18] Language regarding abstinence education programs in annual
appropriations acts does not make section 317P inapplicable to abstinence
education materials. The language simply reiterates that funds made
available are for abstinence-only education, rather than for educational
efforts concerning other approaches to sexual conduct. The 2006 program
announcement for the community-based program supports this reading,
providing that abstinence education grantees may not promote, endorse,
distribute, or demonstrate the use of contraception, although they may
provide information on contraceptives as it supports a message of
abstinence. Id. at 5-6.
[19] Abstinence education curricula may include materials used directly by
students.