January 4, 2019

Shutdown, Day 14: The House passed a bill to reopen the government. (But it's going nowhere fast.)

Daily Briefing

    The House on Thursday voted 241-190 to pass a spending measure (HR 21) that would end a partial federal shutdown that affects some health agencies, though the bill's chances of becoming law are unlikely.

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    About the shutdown

    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 by the Dec. 22, 2018, deadline.

    Trump last month said he would not sign a short-term spending bill that did not include funding for a wall along the U.S.-Mexico border, so the House on Dec. 20 amended a Senate-passed spending bill to include $5.7 billion for border security and $7.8 billion for disaster relief. The bill returned to the Senate, where it stalled amid Democrats' opposition to the border wall funding. Congress recessed on Dec. 22, 2018, leaving seven federal departments and several federal agencies, including FDA and the Indian Health Service (IHS), without fiscal year (FY) 2019 funding.

    House passes bill to end partial shutdown

    The newly sworn in 116th Congress convened Thursday, with Democrats taking control of the House. House Democrats on Thursday introduced, and the House approved, a new funding bill, which included six separate spending measures that were crafted in the Senate and would fund most of the federal government through September. The bill included approximately $11 billion for parts of HHS, such as FDA and IHS.

    House Democrats also introduced, and the House approved, a separate stopgap spending measure to fund the Department of Homeland Security (DHS) through Feb. 8 and extend current funding for border security, but it did not include funding for a concrete wall. House Majority Leader Nancy Pelosi (D-Calif.) said, "What we are asking … Trump and Senate Republicans to do is take yes for an answer," adding, "The president cannot hold public employees hostage because he wants to have a wall."

    But Trump on Thursday said he would veto the House bills if they were approved by Congress. As a result, Senate Majority Leader Mitch McConnell (R-Ky.) said the Senate will not consider the measures. "The Senate will not take up any proposal that does not have a real chance of passing this chamber and getting a presidential signature. Let's not waste the time," McConnell said.

    Trump and congressional leaders are expected to meet Friday to resume talks on federal funding, but lawmakers and aides in light of the latest stalemate said the partial shutdown could continue for weeks.

    What the shutdown means for federal health agencies

    The shutdown does not affect the majority of federal health care agencies, because Congress in September passed fiscal year 2019 spending bills for HHS and the Veterans Affairs health system. However, lawmakers at the time were unable to come to an agreement on funding for several federal departments, including the Department of Agriculture, which funds FDA, and IHS.

    As a result of the funding lapse, FDA has furloughed 41% of the agency's 17,397 staff members, or about 7,053 employees, as laid out in an HHS contingency plan. HHS said FDA's core emergency response functions, high-risk recall activities, and some of the agency's user-fee funded work—including most of its drug approval and oversight functions—are still operating. However, some of FDA's "routine regulatory and compliance" work, inspections, and research activities have halted, HHS said. Most FDA functions affected by the shutdown pertain to the agency's food safety operations.

    HHS in the contingency plan memo said, in the event of a shutdown, "IHS would continue to provide direct clinical health care services as well as referrals for contracted services that cannot be provided through IHS clinics." However, the document stated, IHS would "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 medical facilities remain open and are staffed, though workers at those facilities will not be paid for their work until the shutdown ends. IHS has suspended grants that support tribal health programs and preventive health clinics operated by the Office of Urban Indian Health Programs because of the shutdown.

    HHS' contingency plan stated a total of 7,997 HHS employees, or about 24% of the department's staff, would be furloughed in the instance of a shutdown.

    The shutdown also has strained DHS' Office of Health Affairs, which evaluates potential threats posed by biological and chemical attacks, infectious diseases, and pandemics. DHS health inspectors at the boarder likely will continue working throughout the shutdown, though they will be unpaid, according to Peter Boogaard, who was a spokesperson for DHS under former President Barack Obama.

    The Environmental Protection Agency also is affected by the shutdown, though the agency said 700 employees will continue working, without pay, including those who work on site where the "threat to life or property is imminent." However, the agency's water inspection and pesticide regulation activities likely are affected by the shutdown (Peterson, Wall Street Journal, 1/4; Shabad, NBC News, 1/3; CQ News, 1/3; Knowles, Becker's Hospital Review, 1/3; Lufhtra, Kaiser Health News, 1/3).

    Your cheat sheets for understanding health care's legal landscape

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    To help you keep up with the ever-changing regulatory environment, we recently updated our cheat sheets on some of the most important—and complicated—legal landmarks to include a brand new one-pager on the new tax law.

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