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 The proposed rules concern current agency restrictions upon funding pursuant to 42 U.S.C §§300-300a-6, originally enacted in 1970 as the Public Health Service Act (P.L. 91-572) (the “PHS Act” or the “Act”).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