But others see this as nothing more than a step toward defunding parts of the law. One target is unlimited spending, as determined by the HHS secretary, for state-based grants to set up the insurance exchanges, a pivotal component of the reform law.
Another is a prevention and public health fund, which calls for $17.75 billion in funding between fiscal 2011 and 2021 to expand and sustain the nation's investment in prevention and public health programs.
“I don't believe, given the authority to make it discretionary, they will have any intention of funding public health,” said Dr. Georges Benjamin, executive director of the American Public Health Association. Benjamin said Congress acted deliberately in the law to create a sustainable funding stream for public health.
The HHS secretary has the full authority to fund any programs or activities she chooses under the Public Health Service Act, according to Rep. Joe Pitts (R-Pa.), the subcommittee's chairman.
“Last Thursday, I asked Secretary (Kathleen) Sebelius whether she needed further congressional approval to spend the money from the 4002 fund, and she said no,” Pitts said in the hearing, referring to Sebelius' March 3 testimony before his committee regarding the public health fund. “I then asked her if she could fund activities above and beyond the level Congress appropriated, and she stated yes,” he continued. “This should concern every member that we have created a slush fund that the secretary can spend from without any congressional oversight or approval.”
The subcommittee wants to make three other funding provisions discretionary as well: a construction and capital cost fund for school-based health centers, which provides $200 million between fiscal 2010 and 2013; $230 million in development grants for fiscal 2011 through 2015 to establish new or expanded accredited primary-care residency programs at community health centers; and $75 million for each of fiscal 2010 and 2014 for state grants for programs that educate adolescents about preparing for adulthood.
Democrats on the subcommittee were quick to remind their Republican counterparts that mandatory spending had been used in other legislation when the Republicans last controlled the 108th and 109th Congresses, such as in the Medicare Prescription Drug Improvement and Modernization Act of 2003 and the Deficit Reduction Act in 2005.
“There are different types of mandatory appropriations,” said hearing witness Ernest Istook Jr., a former Republican congressman from Oklahoma who now serves as a distinguished fellow at the conservative Heritage Foundation. “In the drug benefit bill, you have an existing program, and it's an expansion of its scope—rather than creation of something new.”
Istook said that because the Affordable Care Act was so complicated, people are just now discovering many of its implications. “One largely unknown fact is that $6 billion or more was immediately appropriated in the new law, and approximately $105 billion more was appropriated for FY 2011 and beyond,” Istook said in his written testimony.
After the hearing, Pitts said legislation to address these funding issues in the reform law would come this month. What Pitts called “cut bills” would make the five targeted funds discretionary or perhaps eliminate some of them. That could be just the beginning, he said. “We've started with the five.”