Is the RWCA dead?

By: 

Eddie Hamilton

Director

ADAP Educational Initiative

There has been a lot of chatter and disputes in the HIV/AIDS advocacy world regarding the Ryan White Program Care Act (RWCA) expiration on September 30, 2013. Granted, there are numerous valid arguments for and against Ryan White Program RWCA reauthorization and for reprioritization. There are inherent dangers by acting now and also waiting until 2015 until the numerous impacts of the ACA are known. With the ACA enrollment issues, it may be even longer than 2015 before all of the impacts are fully understood.

However, I truly believe that there are two bigger and dangerous elephants in the room that needs to be addressed by all nationwide advocacy groups.

The first is sequestration where organizations are already feeling tremendous negative impacts in service delivery and those impacts will only get worse. There is not much being said publically about Sequestration 2.0.

The second and more immediate issue is a much bigger problem. Upon further research from credible government sources, I have found that it is very possible that the Ryan White Program no longer legally exists due to sloppy appropriations writing and Washington gridlock.

Many HIV/ AIDS organizations are relying on the argument that “Even though there is not a 'sunset' provision, the RWCA program is just fine because there is money being appropriated for the program.”

I had to question that argument because it was too easy of an answer to such an important question.

Question: Is the RWCA dead? Short Answer: In other words, Maybe no but most likely so.

Long Answer: There are a few different sources of information regarding “Unauthorized Appropriations” primarily from the U. S. Government Accountability Office (GAO).  An “Unauthorized Appropriation” is where Congress has allocated money for a program whose primary authorization has since expired that could be subject to a point of order within either chamber that could possibly kill the bill.

In this toxic political atmosphere, anything can happen as it only takes one representative from either chamber to raise a point of order. In the case of the Ryan White program, the authorization had expired on 9/30/2013. The Program has already hit the list for Unauthorized Appropriations.

An authorization bill is known as an enabling statute or a program’s “organic’ authority that articulates a program parameters and an agencies’ mission within in a program. In usual course, no funds can be expended until an actual separate dedicated appropriation authority with specific language directing programs goals and requirements has been initiated.

However, when an appropriations authorization has expired, the language within a continuing resolution or appropriations bill is critical when making the determination of whether the appropriation has the force of a continuing reauthorization of its’ “organic “ authority.

In other words, unless an appropriations bill contains the explicit language reauthorizing the Ryan White Program, the “organic” authority laying out the priorities is still expired and therefore, dead. A catch-all sloppy appropriation to an agency (i.e. HRSA) on January 13th (the new appropriation date) is and will be insufficient without the adequate instructions for the Ryan White Program because there is no valid authorization on the books. The last CR that was passed to stop the shutdown does not explicitly lay out any new authority for the RWCA.

Therefore, in my opinion, the RWCA is legally dead!

Do we have a Plan B in the event the states cannot issue new operating rules (based on ACA or Medicaid expansion) based on the fact that the RWCA is dead?

I also argue at a bare minimum that the any state law and rules, Request for Proposals, bids and contracts constructed and awarded listing the RWCA 2009 as their source of authority, immediately become inoperative when the entity spends the last dollar authorized in their budgets (prior to 9/30/2013) for FY 2013 because they refer to RWCA 2009 as their source of authority. Rebate monies will not count towards this authority as this money comes from the pharmaceutical companies and not the Federal Government.

As a result, I would highly encourage that the entire HIV advocacy community do some appropriate research before coming out with blanket statements on such a vital program.

Various national HIV advocacy groups who are making assumptions that the status quo will be maintained are not viable options. It is imperative that both of these issues be addressed as our lives depend on it!   Hollow words of advocacy no longer cut it anymore.

References:

• GAO-04-2618P Principles of Appropriations Law, U.S. Government Accountability Office (2004), p.69-71, http://www.gao.gov/assets/210/202437.pdf
• CBO Testimony (Douglas Holtz Eakin) , Unauthorized Resolutions and Senate Resolution 173, Congressional Budget Office, http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/44xx/doc4400/07-09-uaea.pdf
• GAO-06-382SP Principles of Appropriations Law, U.S. Government Accountability Office (2006), p.32-36, http://www.gao.gov/assets/210/202819.pdf
• Unauthorized Appropriations and Expiring Resolutions, Congressional Budget Office (Jan. 15, 2013) Page 24.
• Analysis H. R. 2775 Continuing Resolution for 2014, http://www.gop.gov/bill/113/1/hr2775-senateamendment