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The Dress Code Is Casual; the Potential Implications Aren’t

August 14, 2015

The House has been away for 2 weeks; the Senate for about 10 days. Recess will continue for another 3 weeks, then Congress returns on September 8. Yet the Hill is busy.

It can be deceptive. Nearly everyone is dressed casually, office hours are short, and on any given day lots of people are vacationing. But on most days, most staff are in their offices, preparing for a rough Fall.

Probably topping the September list is President Obama’s Iran deal, which seems destined to be hard fought, edging into ugly. Appropriations bills and a budget deal aren’t like to be pretty. Nor is there any obvious answer to how Congress will resolve differences on the Highway Bill. And so on, through many unresolved issues with fall deadlines.

It is hard to see how all of this will be crammed into about 12 legislative days in September. Even that exaggerates the time available. For example, little work will be done on September 24, when Pope Francis addresses Congress.

With so much to be done before October 1, the most likely scenario for FDA funding is a series of short-term Continuing Resolutions that fund the entire government. Short-term could mean as little as 48 hours at a time or as much as a week or two. These CRs would need to be renewed until a longer-lasting funding solution is found for government-wide spending. Even if the government doesn’t go into actual shutdown mode — as it would on the first day after October 1 where there is lapse of funding coverage — the back and forth is distracting for federal workers. And, not surprisingly, it’s not very good for morale. (For a discussion of the possibility of a shut-down and the possible impact on FDA, see last week’s column.)

These CRs are likely to fund FDA at its FY 15 levels until a larger/longer FDA funding plan is in place. The model for this allocates available funds to FDA at the same spending rate as in the prior year, so FDA has less flexibility than it would under a regular appropriation.

Also, funds available under CRs are not to be used for new initiatives. Literally, they “continue” the prior year’s work. For the most part, this does not affect FDA as long as any “new” program can find a preceding activity in the prior year. However, there is no standard interpretation of what is new and what is continuation, so there is always a question about new-ish activities under a CR. Two years ago, we were told that new elements of FSMA were continuations of implementing the FSMA law and this seemed to be a solid interpretation.

The best outcome for FDA would be a budget deal in which the spending cap for non-defense spending increases, giving FDA a shot at appropriations levels higher than the current Senate/House marks. If this were to be accomplished, then passage of appropriations bills — either individually or as part of an omnibus — could proceed. While more money is needed by FDA, having the available amount settled is still very important for planning and resource allocation.

Note: This week’s Analysis and Commentary was written by Steven Grossman, the deputy executive director of the Alliance for a Stronger FDA.

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