FY 2019 HHS Contingency Staffing Plan for Operations in the Absence of Enacted Annual Appropriations
Fiscal Year 2019
The mission of the U.S. Department of Health and Human Services (HHS) is to enhance and protect the health and well-being of all Americans by providing for effective health and human services and by fostering sound, sustained advances in the sciences underlying medicine, public health, and social services. HHS would use the full extent of the authority under the Antideficiency Act to protect the health of Americans under a lapse in appropriations. This plan represents initial estimates for HHS activities under a lapse. Over the duration of any lapse, HHS would continue to review its resources and authorities to minimize impact of such a lapse.
As shown on the attachment, HHS’ contingency plans for agency operations in the absence of appropriations would lead to retaining approximately 41,505 staff and furloughing 37,949 staff as of day two of a near-term funding hiatus. Put another way, more than 50% of HHS employees would be retained. These percentages vary among HHS’ agencies and offices, agencies with a substantial direct service component like the Indian Health Service (IHS) having most of their staff retained. For example, the National Institutes of Health (NIH) Clinical Center will continue to care for patients and admit new patients for whom it is medically necessary. Food and Drug Administration (FDA) will continue core functions to handle and respond to emergencies – such as monitoring for and quickly responding to outbreaks related to foodborne illness and the flu, supporting high-risk food and medical product recalls when products endanger consumers and patients, pursuing criminal and certain civil investigations when we believe public health is at risk, screening the food and medical products that are imported to the U.S. to protect consumers and patients from harmful products, and addressing other critical public health issues.
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. Community Health Centers will continue to operate. Additionally, HRSA would continue the National Practitioner Databanks and Hansen’s Disease Program.
- Administration for Children and Families (ACF) – ACF would continue care of children in custody of, and accept additional referrals to, the Unaccompanied Alien Children program. Child support and foster care services will also continue because they received advance appropriations in the FY 2018 appropriation process.
- Substance Abuse and Mental Health Services Administration (SAMHSA) – SAMHSA would continue programs such as the Disaster Distress Helpline, Disaster Behavioral Health, Treatment Locator, Treatment Referral Line, and Suicide Prevention Lifeline using available grant balances. 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 maintain a core level of readiness and staffing for all-hazards preparedness and response operations including the Secretary’s Operations Center and the National Disaster Medical System under the safety of human life exception.
- National Institutes of Health (NIH) – NIH would continue patient care for current NIH Clinical Center patients, necessary support for ongoing protocols, animal care services to protect the health of NIH animals, and necessary staff to safeguard NIH facilities and infrastructure.
- Centers for Disease Control and Prevention (CDC) – CDC would continue support to protect the health and well-being of US citizens here and abroad with any furloughed staff on-call to respond to outbreak investigations, processing of laboratory samples, and maintaining the agency’s 24/7 emergency operations center. CDC would also ensure that staff that are currently supporting the ongoing Ebola outbreak in Africa, as well as hurricane response will continue their important work to respond to immediate public health needs in the affected areas. CDC's immediate response to urgent disease outbreaks, including seasonal influenza, would continue. To continue ongoing influenza surveillance, CDC would collect data being reported by states, hospitals, and others, and report out critical information needed for state and local health authorities and providers to track, prevent and treat the disease. CDC would also continue World Trade Center Health Program, which is 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, as well as activities funded through Supplemental activities including Ebola Global Health Security implementation and the 2018 hurricane response
- 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) – The FDA would continue specific activities within the scope of its user fee funded programs, including those for prescription drugs, generic drugs, biosimilars, medical devices, animal drugs, and tobacco products. User fee work supports the approval of new medical products, our ability to review requests to conduct important clinical research, issue guidance, and other necessary activities to help patients have access to new therapies and important generic and biosimilar treatment options. The FDA would also continue vital activities to respond to emergencies, manage high-risk recalls, pursue criminal enforcement work and civil investigations related to imminent threats to human health or life, review import entries to determine potential risks to health, and respond to other critical public health issues, as appropriate. The FDA would also continue to address existing critical public health challenges, including drug shortages, and outbreaks related to foodborne illness and infectious diseases.
- Centers for Medicare & Medicaid Services (CMS) – The Medicare Program would continue largely without disruption during a short-term lapse in appropriations. Other non-discretionary activities including Health Care Fraud and Abuse Control, and Center for Medicare & Medicaid Innovation activities would continue. States would have sufficient funding for Medicaid because they received advance appropriations in the FY 2018 appropriation process and Medicaid staff will continue to oversee the program. CMS would continue key Federal Exchange activities, such as eligibility verification, using Federal Exchange user fee prior year funds.
Activities that would not continue include:
- IHS – IHS could only perform national policy development and issuance, oversight, and other functions necessary to meet the immediate needs of the patients, medical staff, and medical facilities. IHS would be unable to provide the majority of funds to Tribes and Urban Indian Health programs.
- HRSA – HRSA would be unable to award new funds for the Children’s Hospital GME Program and Vaccine Injury Compensation Claims.
- ACF – ACF would not continue quarterly formula grants including for the Temporary Assistance for Needy Families, Social Services Block Grant, Child Care and Development Fund, Child Welfare Services and the Community Service Block Grant programs. Additionally new competitive grants, including Head Start and other social services programs, would not be made.
- Administration for Community Living (ACL) – ACL would be unable to award new funds to states for the Senior Nutrition programs, Native American Nutrition and Supportive Services, Prevention of Elder Abuse and Neglect, the Long-Term Care Ombudsman program, Protection and Advocacy for persons with developmental disabilities, or Independent Living Centers and services. These programs have partnerships with State and local governments, philanthropic organizations, and private donors that contribute funding. Since many of these activities are also funded with non-Federal sources and they likely have some federal funding from the previous year, some of these activities may continue at the state level.
- NIH – NIH would admit new patients when deemed medically necessary by the Director. NIH would not initiate new protocols, and would discontinue some veterinary services. NIH will not take any actions on grant applications or awards.
- CDC – HHS would use the full extent of the authority under the Antideficiency Act to protect life and property under a lapse in appropriations. For disease surveillance activities not directly related to protection of life and limiting disease progression, limits on CDC staff resources under the lapse would result in more time to review, analyze, and report out public health information. CDC would be unable to support most non-communicable disease prevention programs, continuous updating of disease treatment and prevention recommendations, and technical assistance, analysis, and other support to state and local partners.
- AHRQ – AHRQ would be unable to fund new grants and contracts or monitor previously-funded projects related to health services research initiatives.
- SAMHSA – SAMHSA would be unable to fund new or monitor existing grants or contracts, including activities requiring on-site supervision.
- FDA – FDA would be unable to support some routine regulatory and compliance activities. This includes some medical product, animal drug, and food related activities. FDA will also pause routine establishment inspections, cosmetics and nutrition work, and many ongoing research activities.
- ASPR – ASPR would be unable to fund activities related to the Hospital Preparedness Program, and fully staff the National Disaster Medical System.
- ONC – ONC would be unable to continue any activities, including those required by the Health Information Technology for Economic and Clinical Health Act and the 21st Century Cures (Cures) Act.
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, 2018.
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) and Financial Management Service (FMS) Division of Payment Management (DPM) will be operational and retain the necessary staffing in an excepted status to ensure delivery of grant payments for excepted programs. The PMS and DPM will follow specific processes to ensure payment of permissible disbursements. In addition, HHS will maintain Grants.gov system in an operational status, but with reduced federal support staff presence. The Grants.gov Contact Center will remain available, and provide assistance to callers. HHS will provide the federal grantor community with guidance and updates 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, and the HCFAC mandatory. CDC has some staff supported through carryover funding, including for PEPFAR, and the Strategic National Stockpile. 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 17 on board. Other Officers appointed by the President include Commissioned Corps personnel. HHS would retain 4,696 on board.
Staff performing activities authorized by necessary implication – support of funded activities The HHS plan includes 3,575 staff performing activities authorized by necessary implication, other than law enforcement and orderly shutdown.
CDC – 5,100 staff would be carrying out excepted activities for hurricane response, to protect the safety of human life and protection of property, 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, 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 769 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 11,227 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.
IHS – 8,803 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 and 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.
NIH – 2,264 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. These staff 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
FDA – FDA staff would be excepted to support vital activities to respond to emergencies, manage high-risk recalls, pursue criminal enforcement work and civil investigations related to imminent threats to human health or life, review import entries to determine potential risks to health, conduct for cause inspections of regulated facilities, conduct surveillance of adverse events reports for issues that could cause human harm, and other critical public health issues, as appropriate. These staff will also be responsible for efforts to continue to address other critical public health challenges, including drug shortages, and outbreaks related to foodborne illness and infectious diseases.
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.
Protection of property -- research property, animals, and inanimate property
NIH – 612 staff would be excepted to protect property related to on-going medical experiments, and 589 staff would be needed for maintenance of animals and protection of inanimate government property. The 612 excepted to protect property related to on-going medical experiment is a subset of the over 8,000 people that work in 1,100 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 544 staff (excluding those otherwise authorized by law) would be excepted for the protection of computer data, with the majority of these at NIH.
NIH – 147 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.