Public Health: How is it Affected by the Government Shutdown?

A special thanks to to Nili Yolin and the American Health Lawyers Association for providing this update. Their alert is posted below:

In the early morning of October 1, the federal government officially went dark. The shutdown came in the aftermath of the Senate's decisive vote to reject a House of Representatives plan that would have kept the government funded for several more months but delayed implementation of key portions of the Affordable Care Act (ACA) for one year.

The impact of the shutdown will be felt across all health care sectors as many federal employees face furloughs of unknown duration. In particular, the U.S. Department of Health & Human Services (HHS) announced in its Contingency Staffing Plan (Plan) that more than half of its employees will be furloughed. HHS' Plan is based on federal guidance that allows agency programs to continue only if they either do not rely on annual appropriations, or they involve the safety of human life or the protection of property.¹ According to HHS, the following programs and services will continue:

• Funding for Medicaid and the Children's Health Insurance Program will continue uninterrupted because funding has already been set aside for these programs;
• Funding for Medicare will likewise continue uninterrupted but only in the short term. If the political impasse stretches beyond several weeks, the program could be disrupted by the reduction in HHS staff;
• The Centers for Medicare & Medicaid Services (CMS) will continue to implement the ACA, "including coordination between Medicaid and the Marketplace, as well as insurance rate reviews, and assessment of a portion of insurance premiums that are used on medical services";²
• State and federal health insurance exchange programs will open as planned, though it is not clear how the information technology (IT) that underpins the exchanges will function since they are operated by government contractors;³
• The National Institutes of Health (NIH) will continue to provide patient care for current NIH Clinical Center⁴ patients;
• The U.S. Food and Drug Administration (FDA) will be able to operate only for "vital activities" such as high-risk recalls and other "critical public health issues";
• The Substance Abuse and Mental Health Services Administration will continue programs such as the Suicide Prevention Lifeline using the balance of available grants; and
• Other programs supported through mandatory funding such as the Centers for Disease Control and Prevention (CDC) Global HIV/AIDS Program will continue.

However, several programs important to public health will be disrupted if a congressional compromise cannot soon be reached. For example:

• Outside of matters related to "imminent threats to the safety of human life or protection of property," CMS, FDA, NIH, and other federal agencies will not publish regulations or other guidance during the shutdown;
• CMS will not fund task forces that work to prevent health care fraud and abuse, and will scale back on Medicare provider audits;
• The CDC seasonal influenza program, which tracks flu outbreaks and certain infectious diseases, will come to a halt;
• No action will be taken on any grants related to medical research, improvement of the health care system, and monitoring of substance abuse programs;
• No new patients will be admitted to the NIH Clinical Center. NIH-funded researchers may continue to work for as long as their money holds out but additional funds will not be released during the shutdown; and
• FDA will not be able to support much of its food-safety activities, such as routine inspections and public notification programs. FDA's laboratory research and some compliance and enforcement activities will be suspended.

Although providers can take comfort in the fact that Medicare and Medicaid program reimbursement will proceed, a government shutdown for any period of time beyond three or four weeks could impede certain critical administrative functions, such as Medicare claims processing, and therefore impact their pocketbooks. Likewise, while substantial ACA implementation will continue, long-term furloughs could affect certain components of the law (such as the exchanges) because they depend on government employees to help run the IT component, among other aspects of the program. Thus, the magnitude of the shutdown's impact will depend on how long it endures.