FY 2019 HHS Contingency Staffing Plan for Operations in the Absence of Enacted Annual Agriculture and Interior 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.
Since most of HHS’s Operating Divisions were funded through FY 2019 by the Labor, Health and Human Services, and Education appropriation (which represents approximately 60% of HHS staff overall), the contingency staffing plans detailed here represent only the Operating Divisions and programs funded through the Agriculture and Interior appropriations.
As shown on the attachment, HHS’ contingency plans for agency operations in the absence of appropriations for Agriculture and Interior would lead to retaining approximately 24,927 staff and furloughing 7,997 staff as of day two of a near-term funding hiatus. Put another way, more than 76% of HHS employees would be retained and 24% would be furloughed. 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. 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.
- Agency for Toxic Substances and Disease Registry (ATSDR) – ATSDR experts will continue to provide a 24/7 response to toxic chemical exposures, hazardous leaks and spills, environmentally-related poisonings, natural disasters and terrorist acts. ATSDR would continue activities supported with funding not affected by the lapse in appropriations, such as: the Per- and Polyfluoroalkyl Substances (PFAS) Contamination in Drinking Water study and related activities, certain asbestos exposure-related activities in Libby, Montana, as well as activities funded with supplemental funding for the 2017 hurricane season response.
- 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. The tobacco program has sufficient user fee carryover to continue all programmatic work. 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.
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.
- NIH-NIEHS – Superfund Research Program (SRP) staff would be furloughed. NIEHS would suspend fiscal oversight and scientific accountability work for approximately 50 grant awards.
- ATSDR – HHS would use the full extent of the authority under the ADA to protect life and property under a lapse in appropriations. For environmental exposure assessment activities not directly related to protection of life and limiting disease progression, limits on ATSDR staff resources under the lapse would result in more time to review, analyze, and report out public health information. ASTDR would be unable to support most environmental health professional training programs, continuous updating of health exposure assessments and recommendations, and technical assistance, analysis, and other support to state and local partners.
- FDA – FDA would be unable to support some routine regulatory and compliance activities. This includes some medical product, animal drug, and most food related activities. FDA will also pause routine establishment inspections, cosmetics and nutrition work, and many ongoing research activities.
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. 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 the end of November, 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 exempt 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
Some HHS agencies have mandatory, carryover, or user fee funds which are not affected by a hiatus in annual appropriations. 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 1 on board. Other Officers appointed by the President include Commissioned Corps personnel. HHS would retain 2,975 on board.
Staff performing activities authorized by necessary implication – support of funded activities The HHS plan includes 593 staff performing activities authorized by necessary implication, other than law enforcement and orderly shutdown.
ATSDR – 86 staff would be carrying out excepted activities for hurricane response, to protect the safety of human life and protection of property, to support operations necessary for funded activities to continue such as travel, procurement, grants, finance, and payment services. Funded programs include: ALS Registry, Asbestos Activities in Libby Montana, PFAS studies and some of ATSDR’s reimbursable activities.
Staff performing activities authorized by necessary implication – orderly phase-down and suspension of operations
HHS has identified 143 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
IHS – 9,015 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.
Safety of human life – activities other than direct medical services
FDA – 912 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.
Protection of property -- maintenance of computer data
HHS estimates that 286 staff (excluding those otherwise authorized by law) would be excepted for the protection of computer data, including staff at FDA (127) and IHS (157).