Philosophy, Law and Politics

How Do Federally Funded Entities Provide for the Family Planning of Minors and Vulnerable Adult Populations?

The Comments Letter below was Submitted Today Regarding Proposed Rulemaking by the U.S. Department of Health and Human Services.

Lori Gayle Nuckolls, Esq.

July 22, 2018

Office of the Assistant Secretary for Health

Office of Population Affairs

Attention: Family Planning

U.S. Department of Health and Human Services

Hubert H. Humphrey Building, Room 716G

200 Independence Avenue, S.W.

Washington, D.C. 20201

Via Electronic Submission to: www.regulations.gov

Re: Docket No.: HHS-OS-2018-0008 (“Family Planning”)

Dear Assistant Secretary,

I write with interest in the proposed amendment of 42 C.F.R. Part 59, and, specifically, the promulgation of regulations, to be codified at 42 C.F.R. § 59.17, by the Department of Health and Human Services (“HHS” or, alternatively, the “Department”). The proposed rules concern current agency restrictions upon funding pursuant to 42 U.S.C §§300-300a-6, originally enacted in 1970 as the Public Health Service Act (P.L. 91-572) (the “PHS Act” or the “Act”). Please consider this letter formal comments upon this proposed rule in response to the Department’s notice of proposed rulemaking and request for comments, as published in the Federal Register, on June 1, 2018. (83 Fed. Reg. 25502-25533). I support this proposed rule, in part, and I believe it achieves the primary objectives of the Act, “to support preventive family planning services, population research, infertility services and other related medical, information, and educational activities.” (H.R. Rep. No 91-1667, at 8-9 (1970) (Conf. Rep.) (as quoted in 83 Fed. Reg. at 25502).

The Department envisions that proposed new rule 42 C.F.R. §59.17 will aid in the achievement of the expressed statutory purpose in the new rule’s implementation of a requirement that entities receiving funding for the authorized purpose, both public and private not-for-profit, duly comply with all applicable State and Local laws requiring notification or reporting of sex crimes against both minor and adult clients. See, Consolidated Appropriations Act, 2018, P.L. 115-141, Div. H, sec. 208, 132 Stat. 348, 736 (2018) (83 Fed. Reg. at 25519-25520). In providing this protection to both minors and vulnerable adult populations, the proposed rule imposes an ongoing obligation upon funded family planning counselors to “comply with all State and local laws requiring notification or reporting of child abuse, child molestation, sexual abuse, rape, incest, intimate partner violence or human trafficking (collectively, ‘State notification laws’),” regardless of the age of the client. (to be codified as 42 C.F.R. §59.17(a)).

Under the proposed rule, each funded entity would reconcile this broader purpose with its prefunding certification attestation as to compliance with a further duty that it: “encourages family participation in the decision of minors to seek family planning services.” Consolidated Appropriations Act, 2018, Public Law 115-141, Div. H, sec. 207, 132 Stat. 348, 736 (2018)(quoted in 83 Fed. Reg. at 25503). This narrower duty also requires that it “provides counseling to minors on how to resist attempts to coerce minors into engaging in sexual activities.” Id. And, as previously stated, in doing the foregoing “no provider of services … shall be exempt from any State law requiring notification or the reporting of child abuse, child molestation, sexual abuse, rape, or incest.” Consolidated Appropriations Act, 2018, Public Law 115-141, Div. H, sec. 208, 132 Stat. 348, 736 (2018) (as quoted at 83 Fed. Reg. 25503).

Apart from the regulatory provisions setting forth the type of family planning counseling funded under the proposed amendment of 42 C.F.R. Part 59, the Department should consider that the concern intended to be met by this amendment envisions that certain adults and certain unemancipated minors are residents within compromised households and relationships. They are without full exercise of their legal privilege and right of self-governance, and, as presumed by the current and proposed regulations, live without legal recourse. Most importantly, many in a compromised living situation, act improperly and contrary to criminal law prior to becoming the victim envisioned by the proposed rule. They engage in what is properly denominated criminal conduct when acting in self-defense so that they do not, if able, become the type of victim this proposed rule seeks to aid. In remedy, perhaps the Department should impose upon funding receipts a similar requirement to report all instances of general criminal conduct within the family unit or relationship, as to all adults and all children, even if the possible misconduct is not related to acts of sexual abuse.

In the explanation of the proposed rule, the Department acknowledges that funded family service providers at times do not inquire as to the age of the child or teenager receiving services, for maintaining confidentiality encourages young people to seek counseling. (83 Fed. Reg. 25520). Similarly, compromised adults and children might not disclose problems of nonsexually related criminal conduct. Yet, compromised individuals develop an unfounded sense of personal shame and self-blame, even when they are not those who act in self-defense before services are needed.

Perhaps, in remedy, the Department should require funded providers to not only notify or report as to the possibly victimized client to whom services are provided. But, providers should, as well, notify or report to State and Local governments all suspected criminal offenses, committed by minors as well as adults, of which a provider becomes aware in assessing the needs and living situations of their client. Specifically, in addition to reporting putatively criminal facts learned of when counseling vulnerable adults, the funded entity would notify or report as to all possible criminal activity of which it becomes aware when complying with the provider’s obligation under the new rule “to conduct a preliminary screening of any [minor under the legal age of consent] who presents with a sexually transmitted disease (STD), pregnancy, or any suspicion of abuse, in order to rule out victimization of a minor.” (to be codified as 42 C.F.R. 59.17(b)(1)(iv).

In summary, proposed new rule 42 C.F.R. §59.17 provides, as intended, that “minors and vulnerable populations” within the United States are protected by requiring family planning providers to comply with State and Local laws as to possible abuse. Yet, the providers might also include within their mandatory reporting all possible criminal offenders learned of in the course of providing counseling to both minors and adults, even if the activity does not constitute sexual abuse. Children, their parents, as well as adults and their families, alike, should benefit fully from guidance made possible with authorized Federal funds, to the extent of present law. With adequate legal monitoring, through notice and reporting, adults, children and their family members may not, not disclose, fully, the factual circumstances resulting in their compromised living situation. For, such difficulty is often a result of criminal activity that proceeds sexual abuse. Only, with adequate disclosure, discussion and remedy will Federally funded family planning guidance be effective.

The Department’s amendment of 42 C.F.R. Part 59 places the burden of compliance upon the funded provider which must possess adequate procedures for meeting the requirements of relevant State and Local law as a precondition of funding approval. And, this achieves the Department’s purpose of providing for minors and vulnerable populations upon whom the burden would never lie. Perhaps, the Department need only expand this protection to require funded family counselors to apprize State and Local governing officials of all suspected criminal activity within personal relationships, to the extent permitted or required by law.

I thank you greatly for considering my comments on this rule. And, I may certainly be contacted as indicated above.

Sincerely,

Lori G. Nuckolls

Lori G. Nuckolls

Philosophy, Law and Politics

To Legalize, Or, Not To Legalize?

In discussing the current debate of whether the use and sale of marijuana should be generally allowed in each of the 50 States, and no longer be deemed a criminal activity, requires that thought be given to American history and traditional theories of the law. And, perhaps our debate should focus on the history of Prohibition, last century.

Currently proposed legislation before the U.S. Congress asks if the Federal government may, or should, dictate that the use of marijuana is legal conduct for every citizen in every state. Or, should the Federal Government respect the aged-old American doctrine of States Rights and the prudent theory of experimentation within and among jurisdictions, whether they be the Federal judicial Appellate Circuits, the States themselves, or the various political subdivisions therewithin?

As citizens, we must ask in what manner marijuana differs from the time honored American custom of enjoying fermented and distilled spirits – alcohol. If marijuana is properly legal in the United States, regardless of locale, for social, and not only medical, purposes, what is the scientific rationale for permitting it being criminalized in any jurisdiction within the country? If legal in any State and deemed safe by our scientific community, is there a valid legal rationale for treating the use of marijuana differently from the current regulation of our use of alcohol?

Traditional grassroots, self-governance of communities in America is the foundation of our democracy, our representative republic. Governing jurisdictions, as small as towns and villages, may dictate legal policy as to the sale and use of alcohol within their jurisdictions. Yet, they may not proscribe the use of alcohol. This has only been done and repealed by a revision of the U.S. Constitution. Marijuana, like alcohol, should properly be regulated below the Federal level by State and Local Governments only as they regulate commerce within their boundaries. Like alcohol, marijuana requires more regulation than English muffins and wheat bread. Such regulation, though, results from theories of corporate and business structure, and the proper purposes of land use management – zoning restrictions.

If legal in one State, marijuana should be legal in all. And, the existence of the 50 States, and our various political subdivisions and territories, permits American capitalism to experiment. Various business forms may evolve from the art of the “dry county,” the State owned and or regulated, stand alone “brick and mortar” business concern, or the State regulated, corner shop in the interstate or international grocery store.

And, there cannot be an argument for not fully expunging the criminal records of conviction and time served for offenders penalized for personal expression before their governing officials “saw the light.” It goes without saying, then, that, too, all criminal defendants currently “serving time” for marijuana only offenses should be released through existing transitional, reentry programs. Not doing so would be merely a creative theory of law ex post facto.

Lori Gayle Nuckolls, Esq.

Law Students Before the Judiciary, Revisited

On Christmas Eve, last, I asked if the Rules formally adopted by the Ohio Supreme Court to govern the Ohio Bar might be amended to improve the educational opportunities of Ohio’s law students prior to their graduation. Supreme Court Rules for the Government of the Bar of Ohio, R. II., “Limited Practice of Law by a Legal Intern.” Perhaps, all Ohio law students should be permitted to share in providing formal legal representation to clients when mentored by a supervising attorney. This is something Cincinnati’s current Mayor John Cranley did as a student at Harvard Law School. He participated in a student practitioner program in the Massachusetts court system as a member of the Harvard Legal Aid Bureau, as I had done myself many years before. The Supreme Judicial Court of Massachusetts permits Second Year law students to engage in supervised civil representation, and Third Year law students to engage in both supervised civil and criminal representation. S.J.C. Rule 303.

Currently, when mentored by an Ohio attorney, the Ohio Supreme Court permits Ohio law students to act as student practitioner legal interns in both civil and criminal matters, and before courts, administrative boards and government agencies. Gov. Bar R. II. Sec. 5. Yet, the Ohio Supreme Court only permits law student practitioners to do so in their Third Year of law school. Gov. Bar R. II. Sec. 2.

Support truly exists for permitting Ohio law students to begin student legal internships in their Second, or even First, Year of law school. Ohio’s law students are usually employed part time while full time law students, as law clerks in law firms, corporations, governmental agencies, as well as in the offices of State and Federal partisan elected officials. Student practitioner duties would not diminish attention given legal studies.

Paid part time legal employment supplements participation in law school Moot Court and Clinical programs. Many students engage in law related employment before entering law school. Both the practice customs and economic structure of Ohio’s legal community would encourage the Ohio Supreme Court to expand upon its own court rules, and those of other States, to permit student practitioners to provide formal legal representation to clients. Currently, Ohio’s Third Year law students may only represent the financially needy and governmental entities, though in both civil and criminal matters. Gov. Bar R. II. Sec. 5.

If the clear majority of Ohio law students currently work in a for profit or personally interested capacity during law school, for law firms, corporations and partisan elected officials, why would an ethical concern arise if their current for profit or personally interested client work product were accorded the formal sanctioning of Rule II legal intern status? The for profit or partisan attorneys by whom they are currently employed are subject to the same professional ethical duties as are the government and public interest attorneys presently sanctioned by Rule II. The due and proper incentive of government should enable students to derive the most from the structure, both formal and informal, of their academic environment during their tenure as students.

We should agree that if law students maintain employment begun before enrollment through their First Year, law school studies would not suffer if they were given Rule II student practitioner privileges for this, or similar, work during First Year. Rather, our theories of client interest and adversarial practice, as the guiding principles of our judicial system, indicate that formal legal representation during law school enhances understanding of both law school studies and substantive for profit work product.

Acknowledgement by the Ohio Supreme Court of the substantive, for profit legal work currently incumbent upon law students in the private sector would enhance the depth of their legal study, and they would then more greatly succeed upon graduation into private practice. In for profit law clerk employment, law students research and draft, with the obligatory duty incumbent upon a practitioner, as do the current Rule II law students with governmental and public interest entities. The formal right to appear in a representative capacity, in deference to a mentoring attorney, allows a law student to fully understand the burden of client representation regardless of the economic status of the client.

Law students rely upon law school course work and law clerk employment to develop required skills in legal methods, specifically, analyzing judicial opinions, conducting Federal and State legislative histories, and the comparative analysis of both primary and secondary legal sources. With the addition of formal practice during First and or Second Year, Ohio law students would make a more informed choice of practice areas, and more readily begin their practice after graduation. Even our best known legal practitioners in Ohio, and we need not name names, would, I am sure, concede that, as graduates of Ohio law schools, they would have truly benefited from such an Hohfeldian right and privilege.

Lori Gayle Nuckolls