Annals of Health Law
ACHIEVING AN AIDS-FREE GENERATION
SEPs.101 Although President Obama signed the Consolidated Appropriations
Act of 2010 after taking office,102 the act did not remove the rider provision
to lift the ban. Instead, the Act only modified the ban to say:
None of the funds contained in this Act may be used to distribute any
needle or syringe for the purpose of preventing the spread of blood borne
pathogens in any location that has been determined by the local public
health or local law enforcement authorities to be inappropriate for such
Thus, under the new bill, using federal funds to operate SEPs is allowed
unless local authorities determine the location is “inappropriate.”
In response to the ban modification, the Department of Health and Human
Services (“HHS”), through CDC, published Implementation Guidance for
Syringe Services Programs as a template for organizations seeking federal
funding for SEPs.104 This document outlined “guiding principles” for
grantees of federal funds, namely adherence to state and local laws and the
coordination of services for substance abuse and HIV prevention.105
Interestingly, it also calls for affirmative documentation showing that local
law enforcement and health officials have approved the location of an SEP.106
This last requirement shifts the statutory requirement from a restriction on
using funds where the location is deemed inappropriate, into a positive
eligibility requirement. This may make practical sense—perhaps the federal
government does not want to issue funds to an SEP only to have local
objections arise.107 However, this shift also suggests more limited support for
101. See Am. Found. for AIDS Research, supra note 67; Ryan Grim, Obama Budget Bans
Federal Funding For Needle Exchange, Breaking Campaign Pledge, HUFFINGTON POST (June
7, 2009), http://www.huffingtonpost.com/2009/05/07/obama-budget-bans-
federal_n_199436.html; Editorial, Righting a Wrong, Much Too Late, N.Y. TIMES, Dec. 26,
2009, at A22.
102. Consolidated Appropriations Act of 2010, Pub. L. No. 111-117, § 505, 123 Stat.
3034, 3279; Richard C. Boldt, Drug Policy in Context: Rhetoric and Practice in the United
States and the United Kingdom, 62 S. C. L. REV. 261, 339 (2010); Ban Lifted on Federal
Funding for Needle Exchange, supra note 19.
103. Consolidated Appropriations Act of 2010 § 505.
104. DEP’T OF HEALTH & HUMAN SERVS., supra note 61.
105. Id. at 1–2.
106. Id. at 2.
107. The success of SEPs may also require cooperation with local law enforcement.
However, this recognizes the practical realities of the conflict between traditional criminal law
relating to drugs and drug use and public health goals. Leo Beletsky et al. surveyed 111 SEP
program managers (representing 59% of all SEPs), and a significant minority reported “client
harassment” by police (43%) and at least monthly, unauthorized confiscation of clients’
syringes (31%). Beletsky et al., supra note 70, at 359. They concluded that “legal status of
SEP, jurisdiction’s syringe regulation environment and affiliation with health department were