Annals of Health Law
ACHIEVING AN AIDS-FREE GENERATION
they faced.111 In fact, existing programs reported that without clear guidelines
on how the funds may be used, technical assistance from health departments,
and legal reform at the state level, lifting the ban was insufficient, and SEP
success required further affirmative authorization.112 Ultimately, the need for
permanent authority and funding became evident with the reinstatement of
the ban on SEP funding in December 2011.113
IV. THE FAILURE OF THE MODIFIED BAN
The Obama administration’s attempt to modify the ban on federally
funding SEPs failed to achieve lasting change for two reasons: 1) its language
was confusing and 2) it did not affirmatively authorize SEPs.
A. A Failure of Language
The language of the Consolidated Appropriations Act of 2010, modifying
the ban on using federal funds for SEPs, presents three problems that
perpetuate the legal barrier created by the original 1988 ban: 1) it uses
negatively-phrased language; 2) it distributes authority to both local public
health and law enforcement authorities; and 3) it does not define what
locations are “inappropriate” for SEPs.
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
Use of negative language in the modified ban obfuscates what is actually
permitted. The phrase “[n]one of the funds . . . may be used . . . in any
location” does not naturally lead to the inference that funding would be
allowed for SEPs. Provisions that are designed to authorize funding in
appropriations bills generally use the language “shall be available” and
“funds are available.” In contrast, this language could be read to mean that
111. Id. at e9. The challenges for funding are not surprising given the effects of the
recession on resources, including state and local government budgets and the endowments of
private foundations. Semaan et al., supra note 41, at 103.
112. Green et al., supra note 25, at e15.
113. Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, 125 Stat 786. The
prohibition was included in Division F, Title V, Sec. 523. Letter from Ronoldo O. Valdiserri,
Deputy Assistant for the Sec’y of Health, Dep’t of Health & Human Servs. (Mar. 29, 2012),
available at http://www.cdc.gov/hiv/resources/guidelines/PDF/SEC523.pdf.
114. Consolidated Appropriations Act of 2010, Pub. L. No. 111-117, § 505, 123 Stat.
3034, 3279 (emphasis added).