By David Yucht, J.D.
Finding that the evaluative tools that applicants for Teen Pregnancy Prevention (TPP) program Tier one funding grants were required to replicate were not "programs" and had not "been proven effective through rigorous evaluation" as required by statute, a federal district court in New York granted a permanent injunction barring HHS from using this funding scheme for distributing TPP grants. However, the court upheld a different, Tier two, TPP funding scheme which, under statute, did not require proof of effectiveness or faithfulness to a proven program (Planned Parenthood of New York City v. HHS, August 30, 2018, Buchwald, N.).
Teen Pregnancy Prevention Program. Congress annually allocates funding to HHS for grants to fund teen pregnancy reduction programs. The Consolidated Appropriations Act (Pub. L. No. 115-141 (2018)) (CAA) which provided funding for TPP, established two tiers of HHS Funding Opportunity Announcements (FOAs). Three-quarters of the funding was allotted to Tier one grants, which were for replicating programs that have been proven effective "through rigorous evaluation" to reduce teenage pregnancy. The other quarter was designated for Tier two grants to "develop, replicate, refine, and test additional models and innovative strategies for preventing teenage pregnancy." Prior to 2018 TPP funding applicants were allowed to chose to emulate one of over 15 established teen pregnancy reduction programs to receive funding.
Planned Parenthood had been a beneficiary of TPP funding since the Program’s inception in 2010, but alleged that it was now ineligible for TPP grants as a result of new FOAs that it contended were contrary to law and arbitrary and capricious. The 2018 Tier one FOA solicited applications to emulate one of only two programs that included "protective factors shown to be effective in preventing teen pregnancy and/or sexual risk behaviors with youth." The two referenced programs were the Tool to Assess the Characteristics of Effective Sex and STD/HIV Education Programs (TAC) and the Systematic Method for Assessing Risk-Avoidance Tool (SMARTool). Planned Parenthood did not apply for this funding, representing that it takes significant resources to complete applications and that it could not compete for funding under these FOAs. Planned Parenthood sued challenging the issuance of these FOAs and moved for summary judgment seeking injunctive relief preventing HHS from implementing these FOAs. HHS moved to dismiss for lack of standing and cross-moved for summary judgment.
Standing, reviewability. Preliminarily, the court determined that Planned Parenthood had standing to sue. Given Planned Parenthood’s mission and prior bidding history, it had asserted facts showing that it likely would have bid absent HHS’s allegedly unlawful actions. Restoring Planned Parenthood to a position where it could compete for funds would constitute partial redress necessary for standing purposes. The court also determined that this matter was not exclusively committed to agency discretion. The statutory text here clearly provided the court with the ability to review the agency action. It required that HHS "fund medically accurate and age appropriate programs that reduce teen pregnancy." Funding for Tier one grants was subject to specific statutory language readily within the purview of courts to interpret.
Final agency action. The court also found that HHS’ adoption of the FOAs was final agency action appropriate for review. These FOAs were not subject to further revision, and HHS’ decision, predicating eligibility for funding on replicating SMARTool or TAC, directly affected Planned Parenthood.
Tier one. The court held that the 2018 Tier one FOA violated the CAA. TPP grants were "for replicating programs that ha[d] been proven effective through rigorous evaluation. These programs must "have been proven effective through rigorous evaluation," and applicants’ proposed "programs" must replicate these models. The court determined that SMARTool and TAC were evaluative tools which, as modes of assessment, were not readily replicable into "programs." An applicant who addressed all characteristics of the SMARTool or the TAC would not be able to replicate the underlying tool. Moreover, there were no empirical studies of the SMARTool or TAC in the record. As the SMARTool and TAC were themselves evaluative tools, they could not readily be subject to the types of rigorous testing expected of a Tier one model "program." Accordingly, the court granted Planned Parenthood’s motion for summary judgment in part and permanently enjoined HHS from using the 2018 Tier one FOA as the basis for awarding TPP Program funds.
Tier two. The court however upheld the 2018 Tier two FOA because these tools and HHS’s "public health priorities" were not inconsistent with Tier two’s mandate to "test additional models and innovative strategies." Unlike Tier one, Tier two did not require proof of effectiveness nor faithfulness to a proven program. Accordingly, the court granted HHS’ motion for summary judgment as it related to the 2018 Tier 2 FOA.
The case is No. 1:18-cv-05680-NRB.
Attorneys: Ada Victoria Anon (Arnold & Porter Kaye Scholer LLP) for Planned Parenthood of New York City, Inc. Benjamin Henry Torrance, U.S. Attorney's Office, for U.S. Department of Health and Human Services.
Companies: Planned Parenthood of New York City, Inc.; U.S. Department of Health and Human Services
Cases: CaseDecisions NewsFeed AccessNews ContraceptionCoverageNews GeneralNews NewYorkNews
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