PEPFAR Reauthorization 2023: Key Issues
Kellie Moss Follow @KMossGH on Twitter and Jennifer Kates Follow @jenkatesdc on Twitter Mar 13, 2023
This year, Congress will consider reauthorization of the President’s Emergency Plan for AIDS Relief (PEPFAR), which was created in 2003 as the U.S. government’s signature global health effort in the fight against HIV. This would be PEPFAR’s fourth reauthorization. The program is broadly regarded as one of the most successful programs in global health history, with the U.S. government reporting tens of millions of lives saved over the past 20 years. Our analyses have also found positive spillover effects associated with the program beyond HIV, such as large, significant reductions in both maternal and child mortality and significant increases in some childhood immunization rates. At the same time, with a divided Congress, there are likely to be heightened disagreements over funding levels across the federal budget, potentially tied to the need to raise the debt ceiling later this year.
Following are fast facts about the program and top issues related to PEPFAR’s authorization and funding.
|Fast Facts About PEPFAR|
What are authorization and reauthorization bills, and what is their connection with appropriations bills?
Established by House and Senate rules, the two-step process of authorization/appropriations supports the linkages between the authorizing and appropriating committees of each chamber:
- Authorization legislation establishes programs, policies, and organizational, oversight, and reporting requirements. It is also “intended to provide guidance to appropriators as to a general amount and under what conditions funding might be provided to an agency or program” before appropriations may be made. It may have time-limited provisions, including for funding.
- Reauthorization legislation allows existing law for programs and policies to be adapted to current circumstances, such as adding or updating reporting requirements, increasing oversight, and extending or modifying time-limited provisions.
- Appropriations legislation provides budget authority, allowing funding for an agency or program.
For foreign assistance specifically – including global health assistance – this two-step process is also required by law. Still, this requirement is often waived by Congress since it has not passed comprehensive foreign assistance authorization legislation since 1985. (Some instances of limited authorization legislation for specific programs, including global health programs such as PEPFAR, exist, but these are less frequent occurrences than the use of waivers for the process.) Thus, absent an authorization or reauthorization bill, an appropriations bill can have the effect of authorizing the creation of a new program when providing funding for a specific activity for the first time and/or authorizing the continued operation of an existing program by providing continued funding for its activities.
When was PEPFAR created, and how many times has it been reauthorized?
President George W. Bush called for the creation of a new U.S. global HIV program in his State of the Union address on January 28, 2003, and Congress passed authorizing legislation just four months later on May 23, 2003. This legislation established the program, its structure – including creating a new position of U.S. Global AIDS Coordinator at the Department of State, with the rank of Ambassador – and initial funding authorization levels. Since then, PEPFAR has been reauthorized three times (see Table 1).
|Table 1: PEPFAR Legislation|
|Full Title||Common Title||Public Law #||Years||Funding Authorization Level|
|United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003||“The Leadership Act”||P.L. 108-25||FY 2004 – FY 2008||$15 billion|
|Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008||“The Lantos-Hyde Act”||P.L. 110-293||FY 2009 – FY 2013||$48 billion|
|PEPFAR Stewardship and Oversight Act of 2013||“The PEPFAR Stewardship Act”||P.L. 113-56||FY 2014 – FY 2018||Did not specify authorization for funding|
|PEPFAR Extension Act of 2018||“The PEPFAR
|P.L. 115-305||FY 2019 – FY 2023||Did not specify authorization for funding|
|NOTES: Current law is reflected in the consolidation of PEPFAR authorizing legislation in U.S. Code: 22 USC Chapter 83: United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria.|
Will PEPFAR end without reauthorization?
No. PEPFAR operates largely under permanent authorities of U.S. law that allow for ongoing funding and the continuation of the major structures of the program, such as the Office of the Global AIDS Coordinator at the Department of State as well as the position of Global AIDS Coordinator, U.S. participation in the Global Fund, and annual reporting on PEPFAR efforts. Absent a reauthorization, the PEPFAR program would continue, provided funds are appropriated. There are, however, some requirements that are time-bound and would “sunset” if a reauthorization bill is not passed (Congress could, for example, simply extend the dates of these time-bound provisions in a reauthorization bill) or if Congress does not address them through another legislative vehicle. Specifically, there are seven requirements that would end after FY 2023, and one that would end after FY 2024, if not addressed. Of these, two relate to how HIV funding is allocated, four specify requirements related to the U.S. contribution to the Global Fund, and two address reporting or oversight (see Table 2).
|Table 2: PEPFAR Legislation – Expiring Time-Bound Provisions|
|Topic of Provision||Description|
|1. HIV Bilateral Funding Allocation: Treatment, Care, Nutrition and Food Support||Requires that more than half of funds appropriated or otherwise made available for bilateral HIV be expended for treatment, care, and nutrition and food support for people living with HIV (through FY 2023)|
|2. HIV Bilateral Funding Allocation: Orphans and Vulnerable Children (OVC)||Requires that not less than 10% of funds appropriated or otherwise made available for bilateral HIV be expended for programs targeting orphans and other children affected by, of vulnerable to, HIV (through FY 2023)|
|3. Global Fund Contribution: 1/3 Cap||Limits U.S. contributions to the Global Fund to not exceed 33% of all funds donated to the Global Fund during a specified period (“1/3 cap”) (through FY 2023, calculated from FY 2004)|
|4. Global Fund Contribution: Use of Funds Withheld Due to 1/3 Cap||Authorizes that any of the U.S. contribution to the Global Fund withheld due to the 1/3 cap may be used for bilateral HIV, TB, and malaria programs (through FY 2023)|
|5. Global Fund Contribution: Withholding Obligation of 20% Pending Certification||Requires withholding 20% of annual U.S. contribution to the Global Fund pending certification of certain accountability and transparency benchmarks by the Secretary of State* (through FY 2023)|
|6. Global Fund Contribution: Withholding Portion if Funds Expended to Certain Governments||Requires withholding a portion of the U.S. contribution to the Global Fund, the next fiscal year, equal to the amount expended by the Global Fund to country governments determined by the Secretary of State to have “repeatedly provided support for acts of international terrorism” (through FY 2023)|
|7. Annual Treatment Providers Study||Directs the Global AIDS Coordinator to annually complete a study of treatment providers for HIV programs, including spending by the Global Fund and partner countries (through FY 2024)|
|8. Oversight Plans of Inspectors General||Directs various agencies’ inspectors general to jointly develop coordinated annual plans for overseeing HIV, malaria, and TB programs (through FY 2023)|
|NOTES: * In certain years, Congress directed the withholding to be 10%, rather than 20%.
SOURCE: KFF, PEPFAR Reauthorization: Side-by-Side of Legislation Over Time.
Is PEPFAR reauthorization required for the program to receive continued funding?
No. Under current legislative rules, Congress can continue to appropriate funding for the program each year. As mentioned above, typically, reauthorization and appropriation bills work hand-in-hand, though there are exceptions, such as authorized programs that do not have a current funding authorization but for which funding is effectively authorized when it is appropriated (as has been the case for PEPFAR since FY 2014). At the same time, the House of Representatives recently passed a rules package for the 118th Congress that requires authorization and oversight plans for House committees, which may signal heightened oversight as well as more visibility around, and potential discussion of, the practice of appropriating funding to programs without a current funding authorization.
Does a funding authorization signal a required level of funding?
When included in an authorization or reauthorization bill, a funding authorization may indicate congressional intent to appropriate funding at certain levels, but Congress is not required to appropriate the level of funding that is authorized for a discretionary program. Ultimately, Congress may appropriate more funding than authorized in some instances, while it may appropriate less in others. This happened during PEPFAR’s first five-year authorization, FY 2004 – FY 2008, when more was appropriated than the $15 billion initially authorized ($19.8 billion was appropriated). The reverse happened during the its second period, FY 2009 – FY 2013, when less was appropriated than the $48 billion authorized (just under $37.2 billion was provided).
A funding reauthorization in PEPFAR for an area (e.g., bilateral HIV) or purpose (e.g., U.S. contribution to the Global Fund) may be a specific funding amount – either as an exact amount that indicates Congress wants that amount directed to this, as a floor that indicates Congress wants at least this amount directed to this, a ceiling that indicates Congress wants no more than this amount directed to this – or more general, stating “such sums as necessary” are authorized for this (this amount may be within an overall funding authorization level or may be standalone).
What are some issues to consider for PEPFAR’s future and are these affected by reauthorization?
Regardless of what happens with reauthorization, there are several discussions underway and questions about PEPFAR’s future that are not dependent on the program’s reauthorization (though Congress could choose to address them that way). Among others, these include discussions about PEPFAR’s role in pandemic preparedness and response, particularly given its work to address COVID-19 in PEPFAR countries and the numerous global challenges ahead for shoring up pandemic preparedness more generally. Indeed, in December 2022, the Secretary of State announced plans for a new Bureau of Global Health Security and Diplomacy that would bring together the functions of several Coordinators and offices, including PEPFAR’s Office of the U.S. Global AIDS Coordinator and Global Health Diplomacy and the Coordinator for Global COVID-19 Response and Health Security. The Bureau would be led by the Department of State official who is already dual-hatted as the U.S. Global AIDS Coordinator and the U.S. Special Representative for Health Diplomacy, currently Dr. John Nkengasong. There are also broader questions about how PEPFAR, and other vertical disease programs (those focused on single diseases), can best contribute to making health systems stronger and more sustainable at the country level; how, with what has largely been flat funding, the program can make further gains in the HIV response; and how best to promote equity, particularly regarding key and other vulnerable populations.