How do you effectively teach sex education and prevent teen pregnancy?

King County says it has a pretty good idea, but it’s suing the U.S. Department of Health and Human Services to restore grant funding for its sex education and pregnancy prevention program, known as FLASH, in order to find out.

In July 2017, HHS announced it was ending federal Teen Pregnancy Prevention Program grant agreements two years early, cutting funding for sex education programs around the country.

In King County, the TPPP grants were funding an effort to evaluate how effective the FLASH program has been in preventing teen pregnancy and the spread of sexually transmitted diseases and infections.

Ending the five-year, $5 million grant two years early will cost King County $2 million, “effectively gutting the research” that staff has been gathering about the FLASH program over the last three years, a county press release stated.

Patty Hayes, the director of Public Health in King County, said the only warning they received about the grant’s end was in a single line on the bottom of the county’s 2017 grant award.

“The way it worked was very unusual and shocking… Thank goodness our staff was paying detailed attention to it,” Hayes said during a national media conference March 15. “It was so dramatically different than how we’ve ever seen HHS behave.”

Some of the other 80 grantees were not so lucky, learning only about the grant cut when reporters from the Center for Investigative Reporting called them for a comment.

King County filed the first of two complaints against HHS on Feb. 15.

The complaint asks the District Court for the Western District of Washington to reinstate the remainder of the $2 million TPPP grant to King County for the next two years while the courts decide whether HHS could legally end the grants early.

The loss of TPPP grants won’t end the FLASH program, said James Apa, communications director for King County’s health department, but it means the county can’t finish its evaluation of FLASH.

“Without that final data point we can’t analyze any of the other data we have already collected, meaning that three years and $3 million will have been wasted,” Apa said in an interview after the media conference. “We will have lost the opportunity to know for certainty that [FLASH] is effective, and what makes it effective… Without evaluation results, schools are forced to make their best guess about what works and what doesn’t. That’s not a fair position to put teachers in, and it’s not the best way to serve students.”

In response to the suit, HHS signed an agreed order with King County on March 22, stipulating the federal department will hold $1 million for King County’s fourth year of grant funds and not distribute the money elsewhere while this issue is in court. King County then filed another complaint on March 29, asking the court to order HHS to process King County’s year-four non-competing grant application and disperse the $1 million.

HHS spokesman Mark Vafiades said the department cannot comment on pending litigation.

Cross motions are expected to be filed by April 17.

King County’s FLASH program — standing for Family Life and Sexual Health — has been in place for more than three decades. It is used in all school districts in King County, and taught in 44 other states.

Teen pregnancies in King County have been falling steadily over the last several years. According to the county, there were 21.5 teen pregnancies per 1,000 women, ages 15 to 19, in 2008. That has shrunk to 8 pregnancies per 1,000 women in 2016, a 63 percent drop.

The national teen pregnancy rate was 20.3 per 1,000 women in 2016.

However, the effectiveness of FLASH is not being studied in King County, but in 10 urban high schools in Minnesota and 10 rural high schools in Georgia, where birth rates are as high as 71.2 out of 1,000 women.

The study’s goal is to measure behavioral changes regarding sex, including changes in condom or birth control use, STD testing, and the quality and quantity of conversations about sex with family members, as well as non-behavioral changes like perceived peer norms about having sex and attitudes toward birth control.

“Each of the selected schools was in an area that lacked adequate sexual and reproductive health education and had higher than average teen birth rates, with students who often have significantly fewer financial and educational resources than their peers in other parts of the country,” the county’s complaint document reads.

Since partnering with those schools in 2015, the Office of Adolescent Health (OAH) — the branch of HHS that administers Teen Pregnancy Prevention Program grants — has commended King County’s plan to study the effectiveness of the FLASH program.

“For example, OAH praised King County for having ‘successfully completed all of [its] planning year milestones’ in year one and, subsequently, for focusing on ‘key objectives and major activities both to implement FLASH with high quality and to evaluate FLASH rigorously,’” the county’s complaint quotes.

Additionally, King County officials were invited to speak at HHS’s 2016 national Teen Pregnancy Prevention Conference.

OAH again commended King County in May 2017 for addressing all of OAH’s expectations for the county in its work plan, “including rigorous evaluation on the intervention, collection of performance measures, packaging/dissemination of the intervention, health care linkages, and implementation of the intervention in safe and supportive, inclusive environments using a trauma-informed approach.”

Although the FLASH program was only one of 81 grantees affected by the end of TPPP grants, King County is asking why its portion of the grants was cut just two months after receiving praise from HHS?

The county believes the answer lies in a change in leadership.

“On June 5, 2017, Valerie Huber was appointed to serve as Chief of Staff in the office of the Assistant Secretary of Health at HHS, the office that oversees OAH,” the county’s complaint reads. “Ms. Huber is a longtime opponent of the TPP Program which she now oversees, and her appointment followed the appointment of other opponents of evidence-based programs to key positions at HHS.”

According to King County, Huber is a former president of Ascend (formerly known as the National Abstinence Education Association), which promotes “sexual risk avoidance education” (abstinence-only sex education), as opposed to “sexual risk reduction” programs (for example, FLASH).

“The major distinction is how each approach regards teens,” an Ascend resource document on Sexual Risk Avoidance education reads. “SRA education believes teens can avoid sex and CDC trend data shows, in increasing number, they are doing so. … By contrast, SRR assumes that teens can’t or won’t avoid sexual experimentation; so the majority of their time is spent talking about sex — using condoms and other forms of contraception with a view to simply reduce, rather than eliminate, sexual risk among teens.”

Huber’s alleged bias against the TPPP hasn’t come up when King County asked for an explanation as to why grant money was stopped. Instead, the county said HHS has given “shifting explanations” for why the TPPP grant program ended.

“A couple of the reasons they gave were, one, that the programs that were being funded were not showing they were having any impact,” said Javier Guzman, legal director of Democracy Forward, during the March 15 media conference. Democracy Forward is a not-for-profit that “scrutinizes Executive Branch activity across policy areas,” and is co-counsel with Pacifica Law Group representing King County. “That ignores the fact that a number of these grantee projects, including King County, were projects that were being funded to study the effectiveness of the programs in play. It just does not make sense to say, ‘we are going to terminate the funding of your study to see if your program is effective, because we think your program is not effective.’ That just doesn’t add up.”

According to a July 25, 2017 AP report, an unnamed Health and Human Services spokesman said, “an evaluation of the first round of grants released last fall found only four of 37 programs studied showed lasting positive impacts. Most of the other programs had no effect or were harmful … including three that it said increased the likelihood that teens would have unprotected sex and become pregnant.”

However, the day after the AP report was published, emails from HHS Director Evelyn Kappler to her staff show that information to be incorrect. It is unclear how incorrect the quote is considered, but the emails show there were several more programs that were found to have lasting behavioral effects than the four mentioned.

Guzman also said HHS claimed the program was being terminated because President Trump’s 2018 budget proposal eliminated funding for the TPPP.

“But that is simply a proposal, and until Congress actually acts on any budget proposal and actually enacts it, it is no more than a piece of paper,” Guzman continued, adding that Congress has mandated funding for TPPP since its creation in 2010.

Trump’s budget proposal was not taken up by Congress, and the $1.3 trillion spending bill passed March 23 included TPPP funding for year four of King County’s grant.

The remaining $1 million for the fifth year of the FLASH study will have to be appropriated by Congress in a future spending bill.

“Notwithstanding Congress’ inclusion of the Teen Pregnancy Prevention Program in the omnibus spending bill … the Trump Administration is still taking the position that it need not provide year four funding to the current Teen Pregnancy Prevention Program grantees,” Guzman said.

In its complaints, King County claims HHS’s lack of consistent reasoning behind shuttering the TPPP violates the federal Administrative Procedure Act.

“In a nutshell, that act … requires reasoned decision making when an agency takes an action that affects the rights and obligations of third parties or members of the public. Here, when they sent the notice out to King County and other grantees, there was no reason,” Guzman said. “We have a low-line termination notice to King County for a program that was supposed to run for five years cut two years early. Compounding that, what we have, as our complaint alleges, is HHS giving after-the-fact justification, and not consistent ones at that, as to why they made that decision. That lack of decision making is at the core of why HHS acted unlawfully here.”