B-164031(3), APR 16, 1975

B-164031(3), APR 16, 1975

WITH REFERENCE TO HEW'S 1975 FISCAL YEAR APPROPRIATION ACT, PUB. L. NO. 93-517, THIS OFFICE HAS TRADITIONALLY TAKEN POSITION THAT TOTAL AMOUNT OF LINE ITEM APPROPRIATION MAY BE APPLIED IN ANY AMOUNTS AMONG AVAILABLE USES ABSENT SPECIFIC STATUTORY RESTRICTION. THUS REFERENCES IN SENATE AND HOUSE REPORTS TO $9.2 MILLION FOR SRS RESEARCH AND DEVELOPMENT ARE NOT TOTAL DOLLAR LIMIT, BUT RATHER ARE REFLECTIVE OF JUSTIFICATIONS AND INTENT AS TO HOW PART OF TOTAL APPROPRIATION SHOULD BE APPLIED. DIRECTION IN SENATE COMMITTEE ON APPROPRIATIONS REPORT THAT SRS MAKE AVAILABLE AN ADDITIONAL $10 MILLION FROM EXISTING MEDICAID FUNDS FOR RESEARCH AND DEVELOPMENT DOES NOT INVOLVE A LEGAL ISSUE, BUT RATHER INTERPRETATION OF COMMITTEE'S INTENT.

FUNDING LEVEL FOR SRS RESEARCH AND DEVELOPMENT ACTIVITIES.:

THIS DECISION IS IN RESPONSE TO A LETTER OF FEBRUARY 24, 1975, FROM THE GENERAL COUNSEL OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), ASKING US TO DETERMINE WHETHER $9.2 MILLION, OR SOME LARGER SUM NOT EXCEEDING $19.2 MILLION, IS AVAILABLE FROM HEW'S FISCAL YEAR 1975 APPROPRIATION ACT, PUB. L. NO. 93-517, TITLE II, 88 STAT. 1637, FOR CARRYING OUT SOCIAL AND REHABILITATION SERVICE (SRS) RESEARCH AND DEVELOPMENT ACTIVITIES.

OUR OFFICE HAS TRADITIONALLY TAKEN THE POSITION THAT, IN A STRICT LEGAL SENSE, THE TOTAL AMOUNT OF A LINE ITEM APPROPRIATION MAY BE APPLIED TO ANY OF THE PROGRAMS OR ACTIVITIES FOR WHICH IT IS AVAILABLE IN ANY AMOUNT ABSENT FURTHER RESTRICTIONS PROVIDED BY THE APPROPRIATION ACT OR ANOTHER STATUTE. SRS RESEARCH AND DEVELOPMENT ACTIVITIES ARE AMONG THOSE FINANCED UNDER THE "PUBLIC ASSISTANCE" LINE ITEM IN THE HEW APPROPRIATION ACT, PUB. L. NO. 93-517. THAT ACT APPROPRIATED A LUMP SUM OF $12.1 BILLION UNDER THIS HEADING FOR FISCAL YEAR 1975, OF WHICH $50 MILLION IS DESIGNATED FOR CHILD WELFARE SERVICES. SEE 88 STAT. 1643.

THE REFERENCES IN THE LEGISLATIVE HISTORY OF PUB. L. NO. 93-517 (H.R. REP. NO. 93-1140, 93D CONG., 2D SESS., P. 64, AND S. REP. NO. 93-1146, 93D CONG., 2D SESS., PP. 85 & 139) TO $9.2 MILLION FOR CARRYING OUT THE RESEARCH AND DEVELOPMENT ACTIVITIES OF THE SRS ARE NOT STATUTORY LIMITS. RATHER, THESE REFERENCES ARE REFLECTIVE OF JUSTIFICATIONS BY HEW AND INDICATIONS BY THE HOUSE AND SENATE APPROPRIATIONS COMMITTEES AS TO HOW $9.2 MILLION OF THE LUMP SUM APPROPRIATION SHOULD BE APPLIED.

HEW REFERS TO A DIRECTION IN THE SENATE REPORT THAT SRS MAKE AVAILABLE AN ADDITIONAL $10 MILLION FROM EXISTING MEDICAID RESOURCES TO CONDUCT RESEARCH AND DEMONSTRATION PROJECTS (S. REP. NO. 93-1146, PP. 30 & 87-88) AND ASKS THE FOLLOWING QUESTION:

"THE WORDS 'AN ADDITIONAL $10 MILLION FROM EXISTING MEDICAID RESOURCES' RAISE TWO PROBLEMS: 'ADDITIONAL' TO WHAT? AND WHAT ARE 'EXISTING MEDICAID RESOURCES'?"

ALTHOUGH THE SENATE DIRECTED THE SRS TO MAKE AVAILABLE AN ADDITIONAL $10 MILLION FROM EXISTING MEDICAID RESOURCES, THERE IS NO INDICATION THAT THE HOUSE CONSIDERED THE MATTER. FURTHERMORE, THE CONFERENCE REPORT (H.R. REP. NO. 93-1489, 93D CONG., 2D SESS., P. 15) REFERS TO THE TOTAL AMOUNT, $12.1 BILLION, APPROPRIATED FOR PUBLIC ASSISTANCE WITH NO MENTION AS TO HOW THAT TOTAL (EXCEPT FOR CHILD WELFARE SERVICES) IS TO BE SPENT. NEVERTHELESS, WE NOTE THAT MEDICAID RESOURCES ARE ALSO PROVIDED BY THE "PUBLIC ASSISTANCE" LINE ITEM; AND HEW DOES NOT DOUBT ITS STATUTORY AUTHORITY TO UNDERTAKE THE PROGRAM CONTEMPLATED BY THE SENATE COMMITTEE.

IN VIEW OF THE ABOVE IT IS APPARENT THAT THE QUESTIONS RAISED RELATE TO NONSTATUTORY "REPROGRAMING" MATTERS RATHER THAN ISSUES OF STATUTORY CONSTRUCTION. ACCORDINGLY, THE ANSWERS INVOLVE INTERPRETATION OF WHAT THE SENATE APPROPRIATIONS COMMITTEE, IN FACT, INTENDED BY THEIR DIRECTION TO SRS, AND THE COMMITTEE IS OBVIOUSLY THE BEST SOURCE TO EXPLAIN ITS INTENT. WE NOTE, HOWEVER, THAT BOTH THE SENATE AND HOUSE REPORTS EXPRESS THE CONCERN THAT APPROPRIATIONS REQUESTED AND MADE FOR MEDICAID FOR FY 1973 AND FY 1974 HAD EXCEEDED REQUIREMENTS FOR THOSE YEARS. (H.R. REP. NO. 93-1140, PP. 62-63 AND S. REP. NO. 93-1146, PP. 86-87). ILLUSTRATIVE OF THIS CONCERN IS THE FOLLOWING COMMENT BY THE SENATE COMMITTEE ON APPROPRIATIONS:

"*** THE COMMITTEE AND THE CONGRESS CANNOT AFFORD - FOR THE THIRD STRAIGHT YEAR - TO APPROPRIATE UNNEEDED FUNDS FOR THIS ACTIVITY. GIVEN TIGHT FISCAL RESTRAINTS, SUCH AN ACTION TAKES MONEY - DOLLAR FOR DOLLAR - AWAY FROM BADLY NEEDED IMPROVEMENTS IN OUR NATIONS HEALTH, EDUCATION, REHABILITATION, AND MANPOWER PROGRAMS." S. REP. NO. 93-1146, P. 87.

CONSIDERING THIS CONTEXT AND THE REFERENCE TO "EXISTING MEDICAID RESOURCES," THE SENATE COMMITTEE ON APPROPRIATIONS APPARENTLY WAS OF THE IMPRESSION THAT THERE ARE SURPLUS MEDICAID FUNDS AMOUNTING TO $10 MILLION FROM PRIOR YEAR ACCOUNTS WHICH REMAIN AVAILABLE FOR OBLIGATION IN 1975. ASSUMING THAT SUCH FUNDS DO EXIST, IT WOULD SEEM THAT THE COMMITTEE INTENDED SRS TO REPROGRAM SO THAT $10 MILLION OF THOSE FUNDS COULD BE APPLIED TO RESEARCH AND DEVELOPMENT ACTIVITIES.

UNDER THIS APPROACH, THE $10 MILLION WOULD BE "IN ADDITION TO" THE $9.2 MILLION DESIGNATED FROM THE FY 1975 APPROPRIATIONS, AND, IN FACT, WOULD HAVE NO BEARING UPON THE NEW BUDGET AUTHORITY PROVIDED FOR 1975. ACCORDINGLY, IF SUCH FUNDS DO EXIST, APPROPRIATE REPROGRAMMING OF THE PRIOR YEAR BALANCES COULD ACCOMPLISH THE COMMITTEE'S DIRECTION. IF SUCH FUNDS DO NOT EXIST, THE COMMITTEE'S DIRECTION COULD STILL BE LEGALLY EFFECTED BY REPROGRAMING THE PUBLIC ASSISTANCE APPROPRIATION FOR 1975. ANY EVENT, WE BELIEVE THAT THE QUESTIONS RAISED ARE MATTERS FOR RESOLUTION BETWEEN HEW AND THE COGNIZANT CONGRESSIONAL COMMITTEES RATHER THAN OUR OFFICE.