B-308128, Abstinence Education: Applicability of Section 317P of the Public Health Service Act, October 18, 2006
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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
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
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
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 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
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]
[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 (
[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.
[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 (
[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.,
[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]
[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.
[19]
Abstinence education curricula may include materials used directly by students.