FY 2016 HHS Contingency Staffing Plan for Operations in the Absence of Enacted Annual Appropriations
Fiscal Year 2016
As shown on the estimates of staffing, HHS’ contingency plans for agency operations in the absence of appropriations would lead to furloughing 40,659 staff and retaining 39,173 staff as of day two of a near-term funding hiatus. Put another way, 51% of HHS employees would be on furlough, and 49% would be retained. These percentages vary among HHS’ agencies and offices, with grant-making and employee-intensive agencies (e.g., the Administration for Children and Families (ACF), the Substance Abuse and Mental Health Services Administration (SAMSHA), the Administration for Community Living (ACL), and the Agency for Healthcare Research and Quality (AHRQ)) having the vast majority of their staff on furlough, and agencies with a substantial direct service component (e.g., the Indian Health Service (IHS)) having most of their staff retained.
Summary of Activities to Remain Open and to be Closed
Consistent with legal advice that activities authorized by law, including those that do not rely on annual appropriations, and activities that involve the safety of human life and protection of property are to be continued, some of the HHS activities that would continue include:
- Indian Health Service (IHS) – IHS would continue to provide direct clinical health care services as well as referrals for contracted services that cannot be provided through IHS clinics.
- Health Resources and Services Administration (HRSA) – HRSA would continue activities funded through sources other than annual appropriations including the Community Health Centers, National Health Service Corps, Maternal Infant, and Child Health Home Visiting program. Additionally, HRSA would continue the National Practitioner Databanks and Hansen’s Disease Program.
- Administration for Children and Families (ACF) – ACF would continue mandatory funded programs including the Federal Parent Locator Service, Personal Responsibility Education, and Health Profession Opportunity Grants. Child support and foster care services will also continue because they receive advanced appropriations in the FY 2015 appropriation process.
- Administration for Community Living (ACL) – ACL would continue to support Health Care Fraud and Abuse Control activities through mandatory appropriations.
- Substance Abuse and Mental Health Services Administration (SAMHSA) – SAMHSA would continue programs such as the Disaster Distress Helpline, Treatment Locator, Treatment Referral Line, and Suicide Prevention Lifeline using available grant balances but without technical assistance or facilitation from SAMHSA. SAMHSA will have staff ready to receive and properly route any letters indicating suicidal ideation to the appropriate local Suicide Lifeline, and to review opioid prescription limit waivers.
- Assistant Secretary for Preparedness and Response (ASPR) – ASPR would continue to maintain minimal readiness and limited staffing for all-hazards preparedness and response operations including the Secretary’s Operations Center, the National Disaster Medical System, and specialized medical countermeasure response under the safety of human life exception.
- National Institutes of Health (NIH) – NIH would continue patient care for current NIH Clinical Center patients, minimal support for ongoing protocols, animal care services to protect the health of NIH animals, and minimal staff to safeguard NIH facilities an infrastructure.
- Centers for Disease Control and Prevention (CDC) – CDC will continue minimal support to protect the health and well-being of US citizens here and abroad through a significantly reduced capacity to respond to outbreak investigations, processing of laboratory samples, and maintaining the agency’s 24/7 emergency operations center.
CDC would also continue World Trade Center Health Program and certain childhood obesity activities, which are supported through mandatory funding, and CDC would continue activities supported with funding not affected by the lapse in appropriations, such as: U.S. President’s Emergency Plan for AIDS Relief (PEPFAR), CDC’s Global AIDS program, the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), Vaccines for Children (VFC) program, certain asbestos exposure in Libby, Montana, Ebola response and preparedness, and Global Health Security Agenda implementation.
- Agency for Healthcare Research and Quality (AHRQ) – AHRQ would continue to maintain oversight of ongoing projects funded by the Patient-Centered Outcomes Research Trust Fund (PCORTF).
- Food and Drug Administration (FDA) – FDA would continue limited activities related to its user fee funded programs including the activities in the Center for Tobacco Products. FDA would also continue select vital activities including maintaining critical consumer protection to handle emergencies, high-risk recalls, civil and criminal investigations, import entry review, and other critical public health issues.
- Centers for Medicare & Medicaid Services (CMS) – CMS would continue large portions of ACA activities, as the tax credits have an appropriation, and user fee carryover can fund a significant portion of administrative work. In the short term, the Medicare Program will continue largely without disruption during a lapse in appropriations. Additionally, other non-discretionary activities including Health Care Fraud and Abuse Control, and Center for Medicare & Medicaid Innovation activities would continue. States will have funding for Medicaid on October 1, due to the advanced appropriation enacted in the FY 2015 appropriations legislation, as well as for the Children’s Health Insurance Program (CHIP).
Activities that would not continue include:
- IHS – IHS would be unable to provide funding to Tribes and Urban Indian health programs, and would not perform national policy development and issuance, oversight, and other functions, except those necessary to meet the immediate needs of the patients, medical staff, and medical facilities.
- HRSA – HRSA would be unable make payments for the Children’s Hospital GME Program and Vaccine Injury Compensation Claims. Monitoring of Ryan White Grants – particularly AIDS Drug Assistance Program Grants, Emergency Relief Grants and Comprehensive Care would be insufficient to assure states, cities and communities are complying with statutory guidance and necessary performance.
- ACF – ACF would not continue quarterly formula grants for Temporary Assistance for Needy Families, Child Care, Social Services Block Grant, Child Welfare Services and the Community Service Block Grant programs. Additionally new discretionary grants, including Head Start and social services programs, would not be made.
- ACL – ACL would not be able to fund the Senior Nutrition programs, Native American Nutrition and Supportive Services, Prevention of Elder Abuse and Neglect, the Long-Term Care Ombudsman program, and Protection and Advocacy for persons with developmental disabilities.
- NIH – NIH would not admit new patients (unless deemed medically necessary by the NIH Director), or initiate new protocols, and would discontinue some veterinary services. NIH will not take any actions on grant applications or awards.
- CDC – CDC would be unable to support the annual seasonal influenza program, outbreak detection and linking across state boundaries using genetic and molecular analysis, continuous updating of disease treatment and prevention recommendations (e.g., HIV, TB, STDs, hepatitis), and technical assistance, analysis, and support to state and local partners for infectious disease surveillance.
- AHRQ – AHRQ would be unable to fund new grants and contracts or monitor previously-funded projects related to health services research initiatives, including research on improving patient safety and reducing healthcare-associated infections. In addition, the data collection and modifications to the household survey of the Medical Expenditure Panel Survey would be stopped.
- SAMHSA – SAMHSA would be unable to fund new or monitor existing grants or contracts, including activities requiring on-site supervision.
- CMS – CMS fraud and abuse activities will be curtailed due to the loss of discretionary funding. Fewer recertification and initial surveys for Medicare and Medicaid providers would be completed, putting beneficiaries at risk of quality of care deficiencies.
- FDA - FDA will be unable to support the majority of its food safety, nutrition, and cosmetics activities. FDA will also have to cease safety activities such as routine establishment inspections, some compliance and enforcement activities, monitoring of imports, notification programs (e.g., food contact substances, infant formula), and the majority of the laboratory research necessary to inform public health decision-making.
- ASPR - ASPR would be unable to fund activities related to medical countermeasures against chemical, biological, radiological, nuclear, and emerging threats, the Hospital Preparedness Program, and fully staff the National Disaster Medical System.
- ONC - ONC will be unable to continue the Standards and Interoperability Framework activities as well as related standards and testing activities; policy activities such as privacy, security, and clinical quality measure development; and administration of the Certified Health IT Product List.
The HHS contingency staffing plan for agency operations in the absence of appropriations has been updated consistent with the requirements in Section 124 of OMB Circular A-11. The plan was prepared based on the Department of Justice legal opinions of April 25, 1980, January 16, 1981, and August 16, 1995, and the memoranda and Q’s and A’s that OMB provided to Departments and Agencies in 1995, 1996, April 2011, December 2011, and August 2013 on this topic. To the degree that updated government-wide guidance is released, or there are events that affect the programmatic activities that HHS needs to carry out during an absence of annual appropriations, the plan would require additional updating. In cases of public health disasters at home or abroad that demand the attention of a range of agency experts to secure and protect human life, the HHS plan would also have to be modified. This plan reflects the anticipated number of staff who would be on-board the second business day of a near-term funding hiatus, after initial shutdown activities would have been completed. On the first day, HHS expects to complete initial shutdown activities within the first day after OMB notification to implement the contingency plans. The plan is updated for staffing levels and funding levels as of September 4, 2015.
As in previous periods without enacted annual appropriations, the number of excepted staff would vary daily, depending on the amount of excepted work that needs to be done. For example, at the end of a pay period, time keepers would need to be excepted for the amount of time to prepare and enter into the timekeeping system the hours worked in pay status, hours worked in non-pay status, and hours in furlough status. Also, the second-day staffing level is likely to include more contract officers than some later days, as contract officers must complete their notifications of those contractors whose performance would need to be changed.
The information on staff who would not be furloughed is broken into the two broad categories of “authorized by law” and “safety of human life and protection of property,” consistent with Department of Justice legal opinions.
“Authorized by law” includes:
- Employees who are “exempt” from furlough because they are not affected by a lapse in appropriations – These staff would be working in a pay status, as funding would continue to be available to pay their salaries.
- Officers appointed by the President –This includes all presidential appointment with Senate confirmation and presidential appointment officials and members of the uniformed services (Commissioned Corps).
- Staff performing activities authorized by necessary implication.
For activities related to the safety of human life and the protection of property, HHS relied on the guidance provided by the Attorney General in 1980, as modified by the Department of Justice in 1995 to reflect relevant statutory changes in the intervening years.
For safety of human life, the numbers needed to continue medical services that HHS provides are separately identified. For protection of property, the plan provides separate information on the number of staff excepted to protect on-going medical experiments, to maintain computer data, and to maintain animals and protect inanimate government property.
HHS, Program Support Center (PSC), Financial Management Portfolio (FMP), Payment Management Services (PMS) will be operational and retain the necessary staffing in an excepted status to ensure delivery of grant payments for excepted programs during a possible appropriations hiatus. The PMS will follow specific processes to ensure payment of permissible disbursements. Additionally, grant payments will continue to be processed following the existing, robust internal controls – as long as the drawdown requests do not trigger the Payment Management System (PMS) edit checks and awarding entity drawdown limit controls. PMS is poised to issue specific guidance to its customers, including information about how payment requests that trigger any one of the PMS drawdown controls will be handled.
HHS, Program Support Center (PSC), Financial Management Service (FMS), Division of Payment Management (DPM) will be operational and retain minimal necessary staffing in an excepted status to ensure delivery of grant payments for excepted programs during a possible appropriations hiatus. The DPM will follow specific processes to ensure payment of permissible disbursements. Additionally, grant payments will continue be processed following the existing, robust internal controls – as long as the drawdown requests do not trigger the Payment Management System (PMS) edit checks and awarding entity drawdown limit controls. DPM is poised to issue specific guidance to its customers, including information about how payment requests that trigger any one of the PMS drawdown controls will be handled.
HHS will maintain Grants.gov system in an operational status, but with reduced federal support staff presence, should a lapse in appropriations occur. In addition, the Grants.gov Contact Center will remain available, and provide assistance to callers. HHS, as Managing Partner, in collaboration with OMB and the Grants.gov Program Management Office, will keep the federal grantor community updated as to the status of the Grants.gov system as plans evolve in the event of a government shutdown.
Summary by Category of Exception
The sections on the staffing table display the staff that would be exempted according to which category their funding falls or the activities they fulfill. This section summarizes the highlights of those totals across HHS.
Staff performing activities without funding issues
Several HHS agencies have substantial mandatory, carryover, or user fee funds which are not affected by a hiatus in annual appropriations, with CMS having the most mandatory funds, including State Grants and Demos, ACA Mandatory Program Management, ARRA Mandatory Program Management, Center for Medicare and Medicaid Innovation, the ACA Implementation Fund, and the HCFAC mandatory. CDC has some staff supported through carryover funding, including for PEPFAR, and the Strategic National Stockpile, and the James Zadroga 9/11 Health and Compensation Act of 2010, which includes mandatory administrative funding for the World Trade Center program. FDA also has carryover funding from user fees paid by industry. IHS has the most reimbursable activities, which includes collections from third-party billing for health services, including from private insurance, Medicaid, and Medicare.
Officers appointed by the President
The Officers appointed by the President at HHS include the Secretary, Deputy Secretary, Assistant Secretaries, and many agency heads, which total 23 on board. Other Officers appointed by the President include Commissioned Corps personnel. HHS would retain 4,938 on board.
Staff performing activities authorized by necessary implication – support of funded activities
The HHS plan includes 1,307 staff performing activities authorized by necessary implication, other than law enforcement and orderly shutdown.
CDC – 552 staff would be carrying out excepted activities to support both domestic and international operations in foreign countries with a CDC presence, such as travel, procurement, grants, finance, and payment services. Fully funded programs include: PEPFAR, Strategic National Stockpile, World Trade Center, International Malaria, Haiti cholera response, and some of CDC’s reimbursable activities.
Staff performing activities authorized by necessary implication – orderly phase-down and suspension of operations
HHS has identified 803 staff that would be excepted to assure an orderly phase-down and suspension of activities. This designation include staff that would be needed to assure an orderly process for determining, as conditions change, what activities should be re-initiated and what activities may no longer be excepted. This number also includes non-PAS shutdown staff carrying out responsibilities described in the November 17, 1995 OMB memorandum to the President’s Management Council on PAS shutdown responsibilities, and the estimated number of OGC staff who would be excepted to ensure that HHS responds appropriately to orders from the Judicial branch.
Safety of human life – direct medical services
HHS estimates that 9,826 staff would be excepted for the provision of direct medical services, with the vast majority of these in the Indian Health Service and the NIH Clinical Center.
Indian Health Service – 7,638 IHS staff would be excepted for the provision of direct medical care. This number reflects FTE at all of the IHS service unit facilities where direct health care is provided. The contingency plan provides for health care to continue at all of these locations. While some preventive health services would continue to be provided (e.g., well child exams or prenatal visits), the predominant care provided would be treatment services for acute conditions or monitoring of chronic diseases for complications. The IHS annual appropriation is not large enough to provide the level of medical services that, for example, Federal employees receive through FEHB. IHS already defers needed medical services. In addition, most IHS facilities are in remote locations, where there are few if any other providers. As a result of these factors, IHS does not anticipate further reducing the number of inpatient/outpatient visits during a hiatus. While the furlough percentage is lower than in FY 1996, the lower percentage reflects changes in the way IHS does business, including significant reductions in the number of headquarters administrative staff.
National Institutes of Health -- 2,084 staff would be excepted for the provision of patient care. In general, individuals enroll in inpatient and outpatient investigational procedures at the NIH Clinical Center only when standard medical treatments have failed, and other treatment options are not available. As a result, they have no other alternatives. While NIH would not be accepting new patients or initiating new clinical protocols during a hiatus, the continued provision of care to existing patients (both inpatients and outpatients) means the hospital would be operating at roughly 90% of normal patient load during the initial weeks of a funding hiatus. This staffs comprise the multidisciplinary patient care team needed for safe and effective patient care, including direct patient care and patient support. NIH also plans to retain a small group of staff to support direct medical care staff. These staff will perform critical functions such as the monitoring of protocols and regulatory adverse effect report functions, and the distribution of drugs to clinics.
Safety of human life – activities other than direct medical services
Food and Drug Administration – FDA comprises over half of the other staff that would be excepted for the protection of human life. The 1,010 FDA staff that would be excepted to inspect regulated products and manufacturers, conducts sample analysis on products and review imports offered for entry into the U.S. This number includes active investigators who will be needed to perform inspections, recall operations, emergency response, review import entries and make admissibility decisions. These FDA staff members would be conducting and overseeing adverse event reporting and lot release protocol reviews as well as providing support with surveillance, product incidents, compliance, recalls, and emergencies.
Protection of property -- research property, animals, and inanimate property
NIH – 503 staff would be excepted to protect property related to on-going medical experiments, and 585 staff would be needed for maintenance of animals and protection of inanimate government property. The 503 excepted to protect property related to on-going medical experiment is a subset of the over 8,000 people that work in 1,140 intramural research laboratories and clinical branches. For some of the on-going experiments, a break in the protocol would render the research property (both animate and inanimate) useless and require some of it to be destroyed. These staff would also be responsible for maintaining cell lines and other invaluable research materials.
NIH staff provides continuous utilities, facilities surveillance and maintenance, fire protection, and support a host of other critical systems. These functions protect the 281 government buildings, comprising 15 million square feet worth $6 billion, as well as 45 leased facilities, constituting over 4 million rentable square feet. In addition to supporting patient care activities, NIH also provides utilities and buildings surveillance for laboratory and vivarium facilities housing 1,350,000 mice; 390,000 fish, 63,000 rats and 3,900 nonhuman primates. These animals are used for research by 24 NIH Institutes and Centers at multiple facilities across the country; many of these animals are priceless and have taken generations to breed. NIH also plans to retain staff responsible for the proper maintenance, calibration, and usage of specialized medical equipment (e.g., infusion pumps, medication administration, pharmacokinetics, medical gas, anesthesia pumps, etc.). These staff includes technologists, chemists, pharmacists, and biomedical engineers.
Protection of property -- maintenance of computer data
HHS estimates that 341 staff (excluding those otherwise authorized by law) would be excepted for the protection of computer data, with the majority of these at NIH.
NIH – 152 staff would be excepted to maintain computerized systems to support research and clinical patient care. The majority of retained individuals would be for the maintenance of the hospital data network, clinical research information system, picture archiving and communications systems, radiology information system, and other components directly related to the electronic patient medical record (e.g., patient care unit workstations on wheels and bar coding devices). Additional retained employees would be necessary to curate concurrent toxicologic data from external contractor sites requiring sophisticated data-handling expertise to prevent corruption of data streams, as well as to ensure the integrity of experimental data systems.
The plan for maintaining access to databases includes the minimum staff required to identify and correct dynamic access problems caused by changes in the volume and types of use. (During a shutdown, there would be no routine updating of databases that is normally a major part of these database operations.) In addition, the plan for continuation of IT infrastructure services represents only the bare minimum to sustain the essential infrastructure for keeping the National Library of Medicine data center operational for serving the external biomedical databases that are used in the provision of non-Federal health care.
See the staff estimates of the number of staff for Operations in the Absence of Enacted Annual Appropriations.