PEPFAR Reauthorization: Side-by-Side of Existing Legislation – Issue Brief – 9215
Overview
The President’s Emergency Plan for AIDS Relief (PEPFAR) is the U.S. government’s global effort to combat HIV and the largest global health program devoted to a single disease (for more information, see the KFF fact sheet on PEPFAR). Three major pieces of authorizing legislation govern PEPFAR’s HIV response, as well as U.S. participation in the Global Fund to Fight AIDS, Tuberculosis and Malaria (Global Fund) and bilateral assistance for tuberculosis (TB) and malaria programs: The Leadership Act, The Lantos-Hyde Act, and The PEPFAR Stewardship Act (see Table 1). PEPFAR was first proposed by President George W. Bush in 2003 and authorized by Congress that same year. Congress updated, extended, and made changes to the program in 2008, under President Bush, and again in 2013, under President Obama. PEPFAR’s current authorizing legislation goes through Fiscal Year 2018, which ends on September 30, 2018.
Table 1: PEPFAR Legislation | |||
Full Title | Common Title | Public Law # | Years |
United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 | “The Leadership Act” | P.L. 108-25 | FY 2004 – FY 2008 |
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 |
PEPFAR Stewardship and Oversight Act of 2013 | “The PEPFAR Stewardship Act” | P.L. 113-56 | FY 2014 – FY 2018 |
This brief provides a side-by-side comparison of changes to PEPFAR’s authorizing legislation over time. In addition, it identifies which authorities are due to expire at the end of this fiscal year (see Tables 2 and 3).
Legislative Changes
After first setting the broad parameters for PEPFAR and creating its main structures in 2003, PEPFAR’s subsequent authorizing legislation has made several key changes to the program, as the HIV response has evolved and as PEPFAR has moved from an emergency response to one supporting longer-term sustainability and epidemic control. These include changes to funding authorization levels and spending directives, as well as requirements for reporting and oversight. Among the major changes over time are:
- Funding authorization levels: The Leadership Act authorized $15 billion during PEPFAR’s first five-year period (FY 2004 – FY 2008), which marked a significant increase in funding for HIV by the U.S. government. The Lantos-Hyde Act authorized even more, with $48 billion over the next five-year period (FY 2009 – FY 2013). The Stewardship Act did not specify authorization of funding for the most recent five-year period (FY 2014 – FY 2018).
- Spending directives: Congress has provided several spending directives to PEPFAR through its authorizing legislation, although these have generally been relaxed over time. For example, in the Leadership Act, Congress required that at least 33% of prevention funds be spent on abstinence-until-marriage programs during the FY 2004 – FY 2009 period. This was relaxed in the Lantos-Hyde Act, which removed the 33% directive and replaced it with a requirement of “balanced funding” for prevention, to be accompanied by a report to Congress if less than half of prevention funds were spent on abstinence, delay of sexual debut, monogamy, fidelity, and partner reduction activities in any host country with a generalized epidemic.
- Reporting, monitoring, and transparency: Each of the authorizing bills has included reporting requirements to provide Congress and others with data and information about the program and to support oversight and evaluation. For example, the Leadership Act and the Lantos-Hyde Act required the Institute of Medicine to conduct evaluations of PEPFAR; however, this was not included in the PEPFAR Stewardship Act. The Lantos-Hyde Act and the PEPFAR Stewardship Act require the Inspectors General of several U.S. agencies (the Department of State, the Department of Health and Human Services, and the U.S. Agency for International Development) to jointly develop coordinated annual plans for overseeing U.S. government global HIV, TB, and malaria programs.
It is important to note that Congress has also made changes to PEPFAR through other legislative vehicles. For example, Congress has used appropriations legislation in certain years to change the amount of withholding required from the annual U.S. contribution to the Global Fund, pending certification of certain benchmarks by the Secretary of State.
Permanent and Expiring Authorities
PEPFAR operates largely under permanent authorities of U.S. law that allow for 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 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. Still, 8 of PEPFAR’s congressionally-mandated requirements expire at the end of FY 2018 or FY 2019. Of these, 2 relate to how HIV funding is allocated, 4 specify requirements related to the U.S. contribution to the Global Fund, and 2 relate to reporting or oversight (one of which does not expire until the end of FY 2019). If PEPFAR legislation is not extended through a reauthorization bill, these provisions would no longer be in effect, though Congress could continue them through appropriations legislation or via some other legislative vehicle.
Table 2: PEPFAR Legislation – Expiring Provisions | |
Topic of Provision | Description |
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 |
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 |
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”) |
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 |
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 Statea |
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” |
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 (expiring at the end of FY 2019) |
Oversight Plans of Inspectors General | Directs various agencies’ inspectors general to jointly develop coordinated annual plans for overseeing HIV, malaria, and TB programs |
NOTES: Provisions expire at the end of FY 2018, unless otherwise noted. a indicates that in certain years, Congress directed that the withholding be 10%, rather than 20%. SOURCES: KFF analysis of: U.S. Congress, United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (P.L. 108-25), May 27, 2003; Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (P.L. 110-293), July 30, 2008; PEPFAR Stewardship and Oversight Act of 2013 (P.L. 113-56), Dec. 2, 2013; U.S. Code, Title 22: Foreign Relations and Intercourse, Chapter 83 (UNITED STATES LEADERSHIP AGAINST HIV/AIDS, TUBERCULOSIS, AND MALARIA) and Chapter 32 (FOREIGN ASSISTANCE), Sections 2151b – 2151b-4; appropriations legislation; Congressional Research Service, International HIV/AIDS, Tuberculosis, and Malaria: Key Changes to U.S. Programs and Funding, RL34569, July 14, 2008. Congressional Research Service, The President’s Emergency Plan for AIDS Relief (PEPFAR), U.S. Global HIV/AIDS, Tuberculosis, and Malaria Programs: A Description of Permanent and Expiring Authorities, R43232, September 27, 2013; Congressional Research Service, “PEPFAR Stewardship and Oversight Act: Expiring Authorities,” IF10797, May 18, 2018. |
Table 3: PEPFAR Legislation – Side-by-Side of Key Topics | |||||
Common Title | THE LEADERSHIP ACT | THE LANTOS-HYDE ACT | THE PEPFAR STEWARDSHIP ACT | ||
OVERVIEW | |||||
Full Title | United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 | Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 | PEPFAR Stewardship and Oversight Act of 2013 | ||
Date Enacted | May 27, 2003 | July 30, 2008 | December 2, 2013 | ||
Public Law # | P.L. 108-25 | P.L. 110-293 | P.L. 113-56 | ||
Authorization of Programs | Authorizes U.S. global HIV, TB and malaria efforts
Authorizes U.S. participation in the Global Fund to Fight AIDS, TB, and Malaria |
Maintains current law | Maintains current law | ||
Authorization of Funding | FY04 – FY08:
Authorizes $15 billion ($3 billion/year), of which:
|
FY09 – FY13:
Authorizes $48 billion (in totala), of which:
|
FY14 – FY18:
Does not specify authorization for funding for HIV, TB, or malaria (however, Congress effectively authorizes funding when it appropriates funding for a purpose) |
||
Program Coordinator/Office | Establishes Office of the Global HIV/AIDS Coordinator and Global HIV/AIDS Coordinator at Department of State | Maintains current law regarding Global HIV/AIDS Coordinator
Establishes Malaria Coordinator at USAID |
Maintains current law | ||
HIV | |||||
Major Objective
|
Providing assistance for the prevention, treatment, and control of HIV/AIDS is a “major objective of the foreign assistance program of the United States” | Providing assistance for the prevention and treatment of HIV/AIDS and the care of those affected by the disease is a “major objective of the foreign assistance program of the United States” | Maintains current law | ||
5-Year Strategy, Reports, Targets/Goals
|
Requires:
Recommends (Sense of Congress) an urgent priority be the rapid increase in distribution of antiretroviral treatment so that U.S. assistance provides treatment for:
Recommends (as U.S. policy):
Requires HIV/AIDS strategy to:
|
Requires:
Includes U.S. policy objective to, by FY13, assist partner countries to:
|
Maintains current law regarding annual report on Best Practices
Requires:
Maintains current law regarding targets/goals specified in the Lantos-Hyde Act
–
Requires annual report to include:
|
||
Authorization of Funding and Spending Directives
|
FY04 – FY08:
Authorizes $15 billion ($3 billion/year), of which:
Recommends (Sense of Congress on funding distribution):
Requires for FY06 – FY08:
States that no funds may be used to promote or advocate the legalization or practice of prostitution |
FY09 – FY13:
Authorizes $48 billion (in total), of which:
Removes Sense of Congress on funding distribution that was in the Leadership Act
–
Requires for FY09 – FY13:
Requires the Global AIDS Coordinator provide balanced funding for prevention activities for sexual transmission of HIV/AIDS +and:
Maintains current law regarding no funds used to promote or advocate the legalization or practice of prostitution |
FY14 – FY18:
Does not specify authorization for funding for HIV (however, Congress effectively authorizes funding when it appropriates funding for a purpose) Requires for FY09 – FY18:
Maintains current law regarding balanced funding for prevention requirement and no funds used to promote or advocate the legalization or practice of prostitution |
||
Organizations’ Eligibility for Funding | States that no funds may be made available to provide assistance “to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking” (often called the “prostitution pledge”1)
States that an organization that is otherwise eligible to receive HIV assistance shall not be required, as a condition of receiving the assistance, to endorse or utilize a multisectoral approach to combatting HIV/AIDS, or to endorse, utilize, or participate in a prevention method or treatment program to which the organization has a religious or moral objection (often called the “conscience clause”) |
Maintains current law regarding “prostitution pledge”
Regarding the conscience clause:
|
Maintains current law | ||
Focus Countries/ Regions and Partnership Frameworks | Requires the HIV/AIDS Coordinator to directly approve all U.S. activities and funding related to HIV/AIDS in certain countries (often referred to as “PEPFAR focus countries”):
|
Adds:
Authorizes “compacts” and “framework agreements” with recipient countries in order to promote host government commitment to deeper integration of HIV/AIDS services into health systems, contribute to health systems overall, enhance sustainability Requires annual report to describe compacts or framework agreements reached or negotiated with countries |
Maintains current law
Requires annual report to describe what has been learned in advancing partnership framework agreements and implications for how to further strengthen these agreements (previously called “compacts” and “framework agreements”) |
||
Prevention | Requires that funding be used to carry out:
|
Maintains existing funding requirements under the Leadership Act, and adds requirement funding also be used to carry out the following prevention activities:
Expresses Sense of Congress recognizing need and urgency to expand range of female-controlled HIV prevention methods Requires microbicides research at the National Institutes of Health and “strongly encourage[s]” the Centers for Disease Control and Prevention to fully implement its microbicide agenda |
Maintains current law (amends some annual reporting requirements) | ||
Women & Girls / Gender | Recommends significant funding, of FY04 – FY08 funding directed to a pilot program for care and treatment of orphans and other children and young people affected by HIV, be directed to activities ensuring the importance of inheritance rights of women, in light of the impact of the epidemic
Requires:
|
Adds greater, more explicit emphasis on women and girls, particularly related to PMTCT and families, and language about gender and gender-related vulnerabilities to HIV
Requires:
|
Maintains current law (amends some annual reporting requirements) | ||
Nutrition & Food Support | Requires, as appropriate:
Expresses “Sense of Congress” that U.S. food assistance should be accepted by countries with large populations of people living with HIV to help feed such individuals |
Strengthens support for nutrition and food assistance:
|
Maintains current law (amends some annual reporting requirements); does not include specific funding authorization (however, Congress effectively authorizes funding when it appropriates funding for a purpose) | ||
Immigration and Travel Ban of HIV Positive Individuals | No mentionc | Ends statutory prohibition against HIV-positive visitors and immigrants by amending Immigration & Nationality Actd | Maintains current law | ||
GLOBAL FUND | |||||
Global Fund to Fight AIDS, TB, and Malaria
|
FY04 – FY08:
Authorizes $15 billion ($3 billion/year), of which:
“1/3 cap”: Limits U.S. contributions to Global Fund to 1/3 (cannot exceed 33%) of contributions from all sources for FY04 – FY08
Requires, for FY04 – FY08, that if the President determines the Global Fund has provided assistance to a country the government of which the Secretary of State has determined has “repeatedly provided support for acts of international terrorism,” then the U.S. shall withhold from the U.S. contribution for the next fiscal year an amount equaling the amount of funding expended by the Global Fund to the government of each such country Authorizes amounts withheld for this and other reasonsf to be made available for bilateral HIV |
FY09 – FY13:
Authorizes $48 billion (in total), of which:
“1/3 cap”: Limits U.S. contributions to 1/3 for FY09 – FY13
Requires, for FY09 – FY13, withholding portion if funding expended by the Global Fund to governments that have “repeatedly provided support for acts of international terrorism” Maintains authorization for amounts withheld for this and other reasonsf to be made available for bilateral HIV Requires withholding 20% of annual contribution from obligation for each year during FY10 – FY13 pending certification of certain accountability and transparency benchmarks by the Secretary of Stateg Finds the Global Fund represents the multilateral component of U.S. global HIV, TB, and malaria efforts and that the Global Fund and U.S. bilateral efforts in these areas “are demonstrating increasingly effective coordination, with each possessing certain comparative advantages” and “often work most effectively in concert with each other”; says the U.S. Government is “fully committed to the success of the Global Fund as a multilateral public-private partnership” |
FY14 – FY18:
Does not specify authorization for funding for Global Fund (however, Congress effectively authorizes funding when it appropriates funding for a purpose) “1/3 cap”: Limits U.S. contributions to 1/3 for FY09 – FY18h
Requires, for FY09 – FY18, withholding portion if funding expended by the Global Fund to governments that have “repeatedly provided support for acts of international terrorism” Maintains authorization for amounts withheld for this and other reasonsf to be made available for bilateral HIV Requires withholding 20% of annual contribution from obligation for each year during FY10 – FY18 pending certification of certain accountability and transparency benchmarks by the Secretary of Stateg Maintains current law regarding Global Fund and U.S. bilateral efforts |
||
TB | |||||
Tuberculosis Programs
|
Control of tuberculosis (TB) is a “major objective of the foreign assistance program of the United States”
FY04 – FY08: Authorizes $15 billion ($3 billion/year), of which:
Requires funding priority be given to activities that increase Directly Observed Treatment Short-course (DOTS) coverage and MDR-TB treatment Recommends that at least 75 percent of the amount made available for TB each year be spent on drugs, supplies, direct patient services, DOTS training, and treatment of multi-drug resistant tuberculosis using DOTS-Plus, including substantially increased funding for the Global Tuberculosis Drug Facility |
Maintains current law regarding major objective
FY09 – FY13: Authorizes $48 billion (in total), of which:
Requires funding priority be given to direct services described in the Stop TB Strategy, including DOTS coverage, treatment for individuals co-infected with TB/HIV, and MDR-TB treatment; as well as to funding for the Global TB Drug Facility, the Stop TB Partnership, and the Global Alliance for TB Drug Development Significantly strengthens and elevates focus on TB:
Adds specific TB goals/targets:
|
Maintains current law
FY14 – FY18: Does not specify authorization for funding for TB (however, Congress effectively authorizes funding when it appropriates funding for a purpose) |
||
MALARIA | |||||
Malaria Programs | Providing assistance for the prevention, control, and cure of malaria is a “major objective of the foreign assistance program of the United States”
FY04 – FY08: Authorizes $15 billion ($3 billion/year), of which:
|
Adds providing assistance for treatment to major objective
Strengthens, embraces President’s Malaria Initiative:
FY09 – FY13: Authorizes $48 billion (in total), of which:
|
Maintains current law
FY14 – FY18: Does not specify authorization for funding for malaria (however, Congress effectively authorizes funding when it appropriates funding for a purpose) |
||
EVALUATION AND OVERSIGHT | |||||
Evaluation and Oversight | Requires IOM study comparing the success rates of the various programs and methods used under the first 5-year strategy for combatting HIV, as well as TB and malaria
Requires U.S. Comptroller General to monitor and evaluate projects funded by the Global Fund and, every two years, prepare a report on its results |
Requires IOM studies for: data evaluation plan; performance assessment; impact evaluation
Maintains current law regarding U.S. Comptroller General and the Global Fund Requires the Inspectors General of the Department of State and Broadcasting Board of Governors, the Department of Health and Human Services (HHS), and USAID to jointly develop five coordinated annual plans for overseeing U.S. Government global HIV, TB, and malaria programs from FY09 – FY13 Requires U.S. Comptroller General to submit a one-time report on U.S. global HIV/AIDS programs no later than 3 years after enactment of Lantos-Hyde Act |
Does not require IOM (now the National Academy of Medicine, or NAM) study
Maintains current law reqarding U.S. Comptroller General and the Global Fund Requires Inspectors General of the Department of State and Broadcasting Board of Governors, the Department of Health and Human Services (HHS), and USAID jointly develop annual oversight plans through FY18 |
||
NOTES: Provisions expiring at the end of FY 2018 are in red. Existing law remains in force unless it was limited to a specific period (expiring at a particular point, such as funding that was authorized through the end of a certain fiscal year) or amended. a: Also authorizes an additional $2 billion over five years for Emergency Fund for Indian Health and Safety and requires establishment of an emergency plan for Indian safety and health. b: Defines partner country as a country that receives a minimum of $5 million in HIV/AIDS assistance from the U.S. Government in the previous fiscal year, for the purposes of the annual report and the Treatment Provider Study. c: Governed by Immigration & Nationality Act, which prohibits HIV-positive individuals from visiting or immigrating to the United States (except if a waiver is granted). HIV is only health condition specifically named as inadmissible in the law; for all others, the Secretary of Health and Human Services is given the authority to decide what conditions pose public health threats. d: Returns decision about whether HIV should be considered a threat to public health to the Secretary of Health & Human Services, as is the case for all other health conditions. e: This amendment to the Leadership Act was made in the Consolidated Appropriations Act of 2004 (P.L. 108-199). f: Specifically, amounts withheld from the U.S. contribution 1) equaling the amount of funding, if any, expended by the Global Fund in the prior year to any governments that have “repeatedly provided support for acts of international terrorism” and 2) equaling the average annual amount of funding, if any, spent on certain administrative expenses in excess of 10% of the total expenditures of the Global Fund for any 2-year period. g: In certain years, Congress directed 10% withholding, rather than 20%. h: For U.S. contributions from FY 2015 through FY 2018, Congress directed that the basis for calculating the limitation of the overall U.S. contribution to not exceed 33% of total Global Fund contributions would be U.S. contributions relative to all contributions to the Global Fund from FY 2004 rather than FY 2009, as was directed in the 2013 PEPFAR Stewardship Act. SOURCES: KFF analysis of: U.S. Congress, United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (P.L. 108-25), May 27, 2003; Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008 (P.L. 110-293), July 30, 2008; PEPFAR Stewardship and Oversight Act of 2013 (P.L. 113-56), Dec. 2, 2013; U.S. Code, Title 22: Foreign Relations and Intercourse, Chapter 83 (UNITED STATES LEADERSHIP AGAINST HIV/AIDS, TUBERCULOSIS, AND MALARIA) and Chapter 32 (FOREIGN ASSISTANCE), Sections 2151b – 2151b-4; appropriations legislation; Congressional Research Service, International HIV/AIDS, Tuberculosis, and Malaria: Key Changes to U.S. Programs and Funding, RL34569, July 14, 2008. Congressional Research Service, The President’s Emergency Plan for AIDS Relief (PEPFAR), U.S. Global HIV/AIDS, Tuberculosis, and Malaria Programs: A Description of Permanent and Expiring Authorities, R43232, September 27, 2013; Congressional Research Service, “PEPFAR Stewardship and Oversight Act: Expiring Authorities,” IF10797, May 18, 2018. |