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January 18, 2019

Shutdown, Day 28: Health groups urge Congress, Trump to end shutdown

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    Hundreds of health care groups, including major industry associations and hospitals, on Thursday sent letters to President Trump and Congress, urging them to end the partial government shutdown.

    Cheat sheet: Understand the health impacts of the government shutdown

    About the shutdown—and efforts to end it

    The shutdown occurred after members of the 115th Congress and President Trump failed to reach an agreement on a short-term spending bill to extend funding for seven federal departments, FDA, and other federal agencies, including the Indian Health Service (IHS), by the Dec. 22, 2018, deadline.

    Trump last week met with leaders of the recently sworn-in 116th Congress to negotiate a plan to fund the federal government and end the partial shutdown, but they did not reach such a deal. Trump during the meeting said he would end the partial shutdown if federal lawmakers agreed to fund the border wall, but House Speaker Nancy Pelosi (D-Calif.) said she would not support such funding, even if it meant the partial shutdown would end.

    Since convening Jan. 3, the Democratic-controlled House has passed two stop-gap measures to fund the remaining departments and agencies, but neither bill included funding for the border wall. The House last week also approved a bill (HR 265) to fund the U.S. Department of Agriculture (USDA), which includes funding for FDA and would end the partial shutdown at the agency, but the bill has stalled in the Senate. Senate Majority Leader Mitch McConnell (R-Ky.) has said the Senate will not consider any spending bills that Trump will not sign, meaning Democrats likely must first reach an agreement with Trump on border wall funding.

    The House this week introduced two more bills intended to reopen federal departments and agencies affected by the shutdown. The House considered one of the measures (H.J. Res. 27), which would have provided funding through Feb. 1, on Tuesday, but it did not garner enough votes for approval. The House is scheduled to consider the other measure (H.J. Res. 28), which would provide stop-gap funding through Feb. 28, next week.

    House Appropriations Committee Chair Nita Lowey (D-N.Y.) said the measures "offer … Trump and Senate Republicans additional options to end the shutdown while allowing time for negotiation on border security and immigration policy."

    However, Trump has indicated that he will not sign short-term spending measures because he wants a long-term solution.

    Health groups call for end to shutdown

    The health care groups in the letters wrote, "We fear a prolonged shutdown will cause needless suffering and have long-lasting health consequences," adding that "[b]asic health protections could be endangered by an ongoing shutdown."

    The shutdown has caused FDA, the Department of Homeland Security, and the Environmental Protection Agency to scale back certain activities related to monitoring food safety and potential illness outbreaks, as well as other public health surveillance actions. The shutdown also has strained IHS facilities, with IHS only able to "perform national policy development and issuance, oversight, and other functions necessary to meet the immediate needs of the patients, medical staff, and medical facilities," according to an HHS contingency plan.

    The groups also expressed concern that the shutdown could affect the Supplemental Nutrition Assistance Program (SNAP) and the nutritional program for Women, Infants and Children. Those programs are funded through USDA, which is affected by the shutdown. USDA Secretary Sonny Perdue has said SNAP is funded through February.

    Further, the groups warned that the shutdown could affect the health of the approximately 800,000 furloughed federal workers, who currently are not being paid. They wrote, "Residents simply cannot maintain their health without stable housing, food, and medical care."

    According to Kaiser Health News, furloughed workers will not lose their health coverage, but "an unknown number are in limbo, … unable to change insurers because of unforeseen circumstances; add family members such as spouses, newborns, or adopted children to an existing health plan; or deal with other issues that might arise."

    Dan Blair—a senior counselor at the Bipartisan Policy Center, who had served as acting director and deputy director of the federal Office of Personnel Management during the early 2000s—said, "The longer this goes on, the more we will see these types of occurrences."

    FDA furloughs more staff, pauses some activities

    FDA is furloughing some additional staff and pausing some discretionary activities in an effort to make more funding available for the agency to continue evaluating applications for new drugs, the Washington Post reports. "What we are trying to do is to keep the review process continuing because of important drugs in the pipeline," FDA Commissioner Scott Gottlieb said.

    Gottlieb told Politico that the agency might make additional staffing changes, but "any additional furloughs would be tied to reduced workloads, as a result of the shutdown." He added, "The decision to furlough anyone is a hard and painful one."

    Shutdown stalls health-related lawsuits

    The government shutdown also has stalled several health-related lawsuits, Modern Healthcare reports. According to Modern Healthcare, Department of Justice (DOJ) attorneys are mostly barred from working on civil cases during the shutdown. As such, DOJ has asked for delays in various lawsuits.

    According to Modern Healthcare:

    • Judge Leslie Southwick of the 5th U.S. Circuit Court of Appeals has granted DOJ's request to delay a case challenging the Affordable Care Act's (ACA) constitutionality;
    • U.S. District Judge Richard Leon has granted DOJ's request to delay a lawsuit challenging the Trump administration's rule expanding short-term health plans; and
    • U.S. District Judge James Boasberg has granted DOJ's request for a delay in a lawsuit challenging CMS' approval of Medicaid work requirements in Arkansas.

    But several other health-related cases are continuing despite the shutdown, Modern Healthcare reports. According to Modern Healthcare:

    • Leon is moving forward with his review of a consent decree approved by DOJ that allows CVS Health and Aetna to merge, despite DOJ's request to give the department until February to respond to public comments regarding the merger;
    • U.S. District Judge Ellen Hollander has denied DOJ's request to delay a lawsuit filed by Maryland Attorney General Brian Frosh (D), which seeks a declaratory judgment that the ACA is constitutional, and the administration therefore must enforce the law; and
    • U.S. District Judge John Bates has ruled that oral arguments must continue as scheduled on Jan. 24 in a lawsuit challenging the administration's rule expanding association health plans.

    Oral arguments also will proceed as scheduled on Jan. 29 in three cases challenging the administration's decision to halt the ACA's cost-sharing payments to insurers, Modern Healthcare reports.

    Shutdown could affect ACA subsidies

    IRS also is affected by the current shutdown, which has the potential to affect coverage purchased through the ACA's exchanges, the Washington Post's "PowerPost" reports. According to "PowerPost," IRS, which has furloughed 90% of its employees, calculates U.S. residents' eligibility for subsidies available to help them purchase exchange plans and works with HHS to review states' requests to alter their exchange markets. "The longer the shutdown goes on, the more these functions could be jeopardized—particularly for [exchange plan] enrollees whose applications have been flagged by the IRS for additional review before they can receive" subsidies for their monthly premiums, "PowerPost" reports (Luthi, Modern Healthcare, 1/17; Ferrechio, Washington Examiner, 1/17; Diamond, "Pulse," Politico, 1/18; Appleby, Kaiser Health News, 1/18; McGinley, Washington Post, 1/17; Meyer, Modern Healthcare, 1/12; Porter, HealthLeaders Media, 1/11; Adams, KAKE, 1/15; Winfield Cunningham, "PowerPost," Washington Post, 1/15).

    New cheat sheet: The health impacts of the government shutdown


    Since 1981, when then-Attorney General Benjamin Civiletti decided that a failure to pass new funding bills should result in a cessation of government functioning, there have been 14 complete or partial government shutdowns. Health care has been deeply embroiled in the debates causing them. Indeed, the longest recent shutdown, which lasted 16 days in 2013, was the result of a contentious dispute over the Affordable Care Act.

    While providers generally shouldn’t expect major changes in their day-to-day operations due to a lapse in government funding, they should be aware of the significant indirect implications on the health care system.

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