FY 2021 HHS Contingency Staffing Plan for Operations in the Absence of Enacted Annual Appropriations
Fiscal Year 2021
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's main priority in the absence of an enacted annual appropriation is to protect the health of Americans.
HHS will use the full extent of the authority under the Antideficiency Act (ADA) to maintain existing HHS activities, including COVID-19 response, research, and vaccine and therapeutic development. This plan represents initial estimates for HHS activities under a lapse. Over the duration of any lapse, HHS will continue to review its resources, authorities, and flexibilities under the law to minimize the impact of such a lapse on the safety of human life and the protection of property.
HHS will continue any COVID-19 activities supported by multiyear funding provided in the emergency supplemental appropriations bills. For example, the Office of the Assistant Secretary for Preparedness and Response (ASPR) and the National Institutes of Health (NIH) will continue to support research oversight and clinical activities related to COVID-19, and specifically the work on vaccine and therapeutic production under Operation Warp Speed. The Centers for Disease Control and Prevention (CDC) will continue full support for ongoing public health even responses and ongoing public health needs, especially the COVID-19 responses and the Ebola outbreak in the Democratic Republic of Congo using multiyear funding. The Health Resources and Services Administration's Health Centers (HRSA) and human services activities within the Administration for Children and Families (ACF) and the Administration for Community Living (ACL) will continue to be funded with carryover balances. Third party collections will help to fund the provision of care by the Indian Health Service (IHS); user fees and supplemental funding will allow the Food and Drug Administration (FDA) to continue to support drug and medical device reviews, as well as emergency use authorizations and countermeasures to fight the pandemic. HHS will also rely on exceptions in the ADA to continue to protect human life and property, such as monitoring for disease outbreaks conducted by the CDC. HHS will also use exceptions in the ADA to retain staff in support of funded activities, such as Medicare, Medicaid and other mandatory health program payments.
The information below describes the HHS approach to continuing operations during a lapse, by Antideficiency Act exception category. This includes information about staff who will continue work as funded through prior year appropriations, mandatory appropriations, and user fees or other reimbursements of non-lapsed appropriations.
As shown on the attachment*, HHS' contingency plans for agency operations in the absence of appropriations will lead to retaining approximately 45,646 staff and furloughing 36,750 staff as of day two of a funding hiatus. Put another way, more than 55% of HHS employees will be retained and 45% will be furloughed. These percentages vary among HHS Operating Divisions and offices. Operating Divisions with a substantial direct service component will have more of their staff retained. For example, the NIH Clinical Center will continue to care for patients and admit new patients for whom it is medically necessary. 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.
The HHS contingency staffing plan for agency operations in the absence of appropriations has been updated consistent with the requirements in Section 124 of the Office of Management and Budget (OMB) Circular A-11 and guidance contained in the most recent update of OMB's Frequently Asked Questions During a Lapse in Appropriations. HHS contingency staffing plans are prepared as part of our standard operating procedures for managing operations during a lapse, which also includes processes for resuming operations after the lapse has ended, including issuing notifications to employees and providing other direction to Operating and Staff Divisions necessary to support the resumption of normal operations.
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, 2011, 2013, and 2019 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 will require additional updating. In the event of a prolonged lapse period, HHS Operating and Staff Divisions will work with the Office of the General Counsel (OGC) to identify the legal rationale for any changes in activities deemed necessary to protect the health and safety of Americans and will update the lapse plan on a rolling basis to meet these operational needs as they arise. In cases of new public health emergencies or natural disasters at home or abroad that demand the attention of a range of agency experts to secure and protect human life, the HHS plan will also have to be modified. This plan reflects the anticipated number of staff who will be on-board the second business day of a funding hiatus, after initial shutdown activities are 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 projected for December 11, as of October 30, 2020.
As in previous periods without enacted annual appropriations, the number of excepted staff will vary daily, depending on the amount of excepted work that needs to be done. For example, at the end of a pay period, timekeepers will need to be excepted for the amount of time required 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 will need to be changed. Designated division officials are responsible for managing activities during a lapse and will work with division and Departmental leadership and Office of General Counsel (OGC) to determine changes to the furlough status during a prolonged lapse period.
The information on staff who will 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 will be working in a pay status, as funding will 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 government property.
HHS's, Program Support Center (PSC), Financial Management Portfolio (FMP) Payment Management Services (PMS) and 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 the 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 Exemption or Exception
The sections on the staffing table display the staff that will 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. A total of 32,162 staff are estimated to continue to be paid by these funds and remain working during a lapse in appropriations. This includes 11,982 staff at the Indian Health Service who will be funded by Medicare, Medicaid, private insurance and other collections.
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 17 on board. Many of these Officers are Presidentially-appointed and Senate approved (PAS).
Staff performing activities authorized by necessary implication – support of funded activities
The HHS plan includes 2,033 staff performing activities authorized by necessary implication, other than law enforcement and orderly shutdown.
Staff performing activities authorized by necessary implication – orderly phase-down and suspension of operations
HHS has identified 988 staff that will be excepted to assure an orderly phase-down and suspension of activities. This designation include staff that will 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 will be excepted to ensure that HHS responds appropriately to orders from the Judicial branch.
Safety of human life – direct medical services
HHS estimates that 2,713 staff will be excepted for the provision of direct medical services, with the vast majority of these in the Indian Health Service and the NIH Clinical Center. This number reflects staff at service unit facilities and clinics, supporting medical and pharmaceutical care.
Safety of human life – activities other than direct medical services
Staff will be excepted to support vital activities to respond to COVID-19 and other public health and natural 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 437 staff (excluding those otherwise authorized by law) will be excepted for the protection of computer data.
Public Health Service Commissioned Corps
Commissioned officers cannot be furloughed. As a result, HHS will retain an additional 3,234 Commissioned Corps personnel on board during a hiatus in annual appropriations in addition to those working in the exempt or excepted statuses described above.
Operating Division Details
The information below provides specific detail regarding which activities will continue or not continue during a lapse in appropriation, by HHS Operating Division.
* We are working on remediating these documents to make them available as soon as possible. For assistance with the information in these files, please contact the HHS Office of Budget at 202-690-7393.