This analysis was prepared by McDermott+ Consulting, on behalf of AACOM.

Congressional Contingency Plans 

It has been reported that the Capitol would be open to official visitors only, and the building would be closed to tours and general visitors. The House and Senate buildings would be open only for official business. Only one door in each House and Senate office building would be open under the plan. That means, when Congress is in session, buildings such as Dirksen on the Senate side and Rayburn on the House side would have one entrance and exit. Events will not be allowed to be hosted in the Capitol buildings during the shutdown. 

Of note, the House has released a plan for operations during lapses in government funding.  Each Member of Congress will make their determinations on staffing, but we expect most offices to remain fully staffed. However, whether they are conducting business as usual will be determined by each Member as well. 

Department of Health and Human Services Contingency Plans

The Department of Health and Human Services (HHS) updated its Contingency Staffing Plan for Operations in the Absence of Enacted Annual Appropriations. Contingency plans from other federal agencies are also being released  and are located on the Agency Contingency Plans page of the Office of Management and Budget (OMB).

The Anti-deficiency Act prevents federal agencies from entering into obligations in the absence of appropriations, though it includes some exceptions.  A recent CRS report provides a helpful  example of an exception:  “…employees whose duties involve the safety of human life or the protection of property may be told by an agency to come to work during the period in which funds are lapsed or unavailable.” Further, CRS notes that programs funded by laws other than annual appropriations bills—such as entitlement programs—may not be affected by a lapse in appropriations.

Broadly speaking, CMS plans to furlough 42% of its staff, while retaining 58% -- and those percentages vary by operating divisions. In addition to the details outlined below, it is important to note that another impact of a shutdown is progress on regulations. Some major regulations are expected to be released soon, including the major Medicare calendar year payment final rules. However, the CMS staff who work on these rules and the OMB staff who review the regs before they are released will likely be furloughed. The Medicare rules are required to come out on or around November 1 (60 days prior to the start of the next calendar year), but if the shutdown lasts a full month and there are fewer staff to work on them or approve them, CMS’s only option may be to put these rules out late. For example, following the 2013 shutdown, CMS released the Calendar Year 2014 Physician Fee Schedule almost four weeks late, on November 27, 2013. CMS decided to waive the requirement for the final rule to be published 60 days in advance of the calendar year, stating that it “would be contrary to the public interest to delay the effective date” of the rule. Beyond rules, any operational tasks or guidance that CMS and other federal agencies are working on would also likely be held back. Thus, in all, a long government shutdown would truly put a pause on the regulatory process.

HHS provides details on staff who will continue work as funded through prior year appropriations, mandatory appropriations, and user fees or other reimbursements of non-lapsed appropriations. Information on staff who will continue to work is broken into the two categories – "authorized by law" and "safety of human life and protection of property”. To determine activities related to the safety of human life and the protection of property, HHS relies on previous DOJ guidance, and “authorized by law” includes:

• Employees who are exempt from furlough because they are not affected by a lapse in appropriations.
• Officers appointed by the President, including all presidential appointments with Senate confirmation and presidential appointment officials and members of the uniformed services (Commissioned Corps).
• Staff performing activities authorized by necessary implication.

The agency’s contingency plans are broken out by each of HHS’ Operating Divisions, all of which are linked to on the main HHS contingency plan page (linked above).  Highlights include:

• Centers for Medicare and Medicaid Services (CMS)
  • Medicare will continue during a lapse in appropriations. Any impact on providers would occur in stages based on how long a shutdown continues.
• Impact of Short Shutdown:  For both Medicare fee-for-service (FFS) and Medicare Advantage, a short shutdown of a month or less will likely not affect the timing of payments to providers or health plans.  
• Impact of Long Shutdown:  A shutdown of over a month could delay the timing of payments to providers under Medicare FFS by Medicare Administrative Contractors (MACs).  Payments to health plans who participate in Medicare Advantage will not be affected. 
• Background on Medicare FFS Payments to Providers (Clinicians and Facilities): Medicare FFS payments to providers are made by MACs that operate regionally.  Each MAC has a contract with the Centers for Medicare & Medicaid Services (CMS) to handle Medicare FFS claims (Medicare Part A and Part B). The contracts are funded by the CMS discretionary Program Management account that is appropriated by Congress annually through the appropriations process. The contract periods for MACs do not always align with the government fiscal year (October 1- September 30), so MACs can be funded past September 30th.  However, when a MAC runs out of funding and needs additional funding from the new fiscal year appropriation, it could start to hold back payments until the funding is received (once funding is received, the claims are paid in full).  Therefore, any type of payment delay to providers truly depends on how each MAC’s contract is structured and how long the government shutdown lasts. If the government shutdown lasts longer than 30 days, there is a greater likelihood that at least some of the MACs could run out of funds. 
• Background on Medicare Advantage Payments to Health Plans:  Medicare Advantage plans are paid a monthly risk-adjusted capitated payment on around the first of every month. The payments, which come directly from the Treasury, are mandatory and must always be made. Therefore, a government shutdown, regardless of its length, will have no impact on Medicare Advantage payments to health plans. 
• Medicaid will have sufficient funding to fund the first quarter of FY 2024, based on the advance appropriation provided for in the FY 2023 appropriation.
• Health Care Fraud and Abuse Control activities will continue.
• Center for Medicare & Medicaid Innovation (CMMI) activities will continue.
• The Children’s Health Insurance Program (CHIP) will continue.       
• Federal Exchange activities, such as eligibility verification, will continue using Federal Exchange user fee carryover.
• Administration for Community Living (ACL)
  • ACL will continue activities funded through carryover funding provided under the Health Care Fraud and Abuse Control (HCFAC) Account and carryover funding from the Medicare Improvements for Patients and Providers Act (MIPPA), including the Senior Medicare Patrol Program and related Medicare program integrity activities as well as Medicare Beneficiary outreach activities.
  • Staff will continue to perform reimbursable work related to managed care consumer information and assistance.
  • Supplemental funding for ACL programs under the Families First Act and the CARES Act has been distributed to grantees and would not be impacted by a lapse in appropriations.
  • 22 (11%) of ACL staff will be retained 
• Health Resources and Services Administration (HRSA)
  • HRSA will continue activities funded through mandatory funding, advanced appropriations, prior year carry-over funds, and user fees.
  • HRSA will continue to oversee many direct health services and other activities funded through carryover balances, such as the Ryan White HIV/AIDS program - Parts A and B and Ending the HIV Epidemic.
  • HRSA will continue to oversee the National Practitioner Databank and Hansen's Disease Program using existing balances.
  • 1,594 (54%) of the HRSA staff will be retained.
• Substance Abuse and Mental Health Services Administration (SAMHSA)
  • SAMHSA will continue substance abuse and mental health programs, including those that provide critical behavioral health resources in the event of a natural or human-caused disaster such as Disaster Behavioral Health response teams, the 24/7 365 day-a-year Disaster Distress Helpline that provides crisis counseling to people experiencing emotional distress after a disaster, and the 988/Suicide Lifeline to connect people in crisis with life-saving resources.
  • SAMHSA will continue activities supported with Bipartisan Safer Communities Act (BSCA) advanced appropriations and will also continue previously funded operations and utilize available balances to provide important resources to those seeking help for addiction and behavioral health concerns through the Treatment Services Locator program, the Treatment Referral Line, and the Suicide Prevention Lifeline.
  • SAMHSA will have staff ready to receive and properly route any letters indicating suicidal ideation to the appropriate local crisis intervention services.
  • SAMHSA will review opioid prescription limit waivers.
  • Most SAMHSA grants awarded in the prior year will have funds that remain available to be spent by the grantee, including for example the 988 and Behavioral Health Crisis Services program, the State Opioid Response Grant program, and the mental health and substance abuse block grants.
  • The retained Commissioned Corps Officers (CCO) will assist with maintaining any required grants programs/activities, including grants funded with COVID-19 and BSCA advanced appropriations.
  • SAMHSA does not anticipate that COVID-19, BSCA or grant activities will be impacted during a short-term lapse.
  • 127 SAMHSA staff will be retained.
• Centers for Disease Control and Prevention (CDC)
  • CDC will continue support to protect the health and well-being of US citizens here and abroad through response to outbreaks, maintaining laboratory functions, the President's Emergency Plan for AIDS Relief (PEPFAR), and the agency's 24/7 emergency operations center.
  • CDC will continue the World Trade Center (WTC) Health Program, the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), and the Vaccines for Children (VFC) program, which are supported through mandatory funding.
  • CDC’s immediate response to urgent disease outbreaks and critical investigation needs in areas such as food, healthcare, vectors (mosquitoes and ticks), and high-consequence pathogens would continue.
  • CDC will 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 diseases.
  • 6,176 (41%) of CDC staff will be retained 
• National Institutes of Health (NIH)
  • NIH activities that will continue are centered mainly on the ongoing operations at its biomedical research hospital, the NIH Clinical Center, to maintain the safety and continued care of its patients.
  • NIH will provide basic care services to protect the health of NIH animals, and retain staff to safeguard ongoing experiments or operations, as well as facilities and infrastructure.
  • 4,427 (approximately 22.4%) of NIH staff will be retained.  
• Food and Drug Administration (FDA)
  • FDA activities funded through carryover user fee funding will continue, including certain activities related to the regulation of human and animal drugs, biosimilar biological products, medical devices, and tobacco products.
  • Activities that can be carried out with COVID-19 supplemental funding include work on emergency use authorizations to respond to the COVID-19 pandemic, mitigation efforts related to potential drug and medical product shortages and other supply chain disruptions, medical device infection control, work on enforcement actions for fraudulent, counterfeit and misbranded products related to COVID-19, and work on medical countermeasures, therapies, and vaccines and important generic and biosimilar treatment options.
  • All vital FDA activities related to imminent threats to the safety of human life will also continue.
    • This includes detecting and responding to public health emergencies, continuing to address existing critical public health challenges, and managing recalls, including drug shortages, and outbreaks related to foodborne illness and infectious diseases.
    • Other vital activities that will continue are surveillance of adverse event reports for issues that could cause human harm, the review of import entries to determine potential risks to human health, determining and conducting systems for cause and certain surveillance inspections of regulated facilities, and criminal enforcement work and certain civil investigations.
  • 15,602 (81%) of FDA staff will be retained including.
• Advanced Research Projects Agency for Health (ARPA-H)
  • ARPA-H has been appropriated three-year appropriations in FY 2022 and FY 2023, and the FY2024 carryover balances from these two appropriations are sufficient to support ARPA-H operations during a lapse of appropriations.
  • All ARPA-H activities would continue during a lapse.
  • All ARPA-H federal staff will be exempt and paid from carryover funding.
• Administration for Strategic Preparedness and Response (ASPR)
  • ASPR will continue support of COVID-19, hurricane and other emergency responses.
  • ASPR is leading the federal government's response to COVID-19, and a large number of staff are supporting the medical countermeasure program by negotiating, awarding, and managing contracts that are critical to the response effort.
  • In addition to COVID-19 response, ASPR staff are also negotiating, awarding, and managing contracts that are critical to the other material threats within ASPR's mission, including the development of medical countermeasures for CBRN and pandemic influenza preparedness and response efforts, and the overall technical oversight and management of those contracts.
  • 498 (47%) of ASPR staff will be retained.
• Office of the Secretary (OS)
  • OS reports the contingency staffing numbers for 15 Staff Divisions and the Program Support Center.
  • Excepted staff in the immediate Office of the Secretary would continue to provide leadership and key support staff to ensure Department operations and national security related activities continue.
  • The Intergovernmental and External Affairs Regional Directors will continue to support working partners in the regions.
  • The Assistant Secretary for Financial Resources' budget and grants staff will continue to support HHS’ funded programs and will assist with orderly phase down of operations.
  • 3,383 (59%) of OS staff will be retained.

HHS notes that this current plan represents initial estimates for HHS activities under a lapse, and that it will continue to review its resources, authorities, and flexibilities during any lapse, in order to minimize impacts on the safety of human life and the protection of property.

Next Steps

Politics and dynamics are rapidly changing. We will continue to monitor and keep you updated as changes happen, and if new announcements on contingency planning are posted.