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Gains and Gaps in Knowledge about Shutdown Processes

April 19, 2019

In early January, the Alliance put out an “FDA shutdown toolkit” that was well received. We were working on a revised version when the shutdown (thankfully) ended. However, we did keep collecting information because another shutdown could have started on February 15. When the bipartisan FY 19 funding deal was enacted, our plan was to compile an archival version of the FDA shutdown toolkit, preserving what we had learned.

That seemed prudent. Whether there is ever another shutdown (we hope not), it seems inevitable that the threat of shutdowns is here to stay. The next likely window will be October 1, when FY 20 starts and appropriations bills or Continuing Resolutions should be in place. Less likely, but not impossible, is that a shutdown threat could emerge around the need for Congress to raise the national debt ceiling later this year.

As we started to write the archival version of the Alliance FDA shutdown toolkit, we realized we didn’t know enough about what happened and why. Who was at work — with or without pay — seemed simple, but isn’t. Were there BA accounts that had available balances that could be spent? If so, what was the rationale, the number of individuals involved, and spending limitations? On user fees, I had three mutually inconsistent explanations of how available balances were calculated, none of which fully explained the seemingly large disparity in available funds among the programs.

It turns out that — due to FDA’s vast responsibilities and multiple funding streams — the question of what funds can be spent and which employees retained “in the absences of appropriations” is quite complex.

This led to a letter, sent April 8, from Alliance Executive Director, Ladd Wiley, to FDA. The letter can be found here. In it, the Alliance asks a series of questions about funding sources and their available balances, personnel levels before during and after the shutdown, and how decisions were made about who was furloughed, especially what policies guided both initial and mid-shutdown decisions.

It is too soon for FDA to have responded, but we will keep Alliance members informed. If you have questions, please e-mail me to let me know.

PS: Essential to understanding the letter is the status of individual employees “in the absence of appropriations.” The key OMB document defines “excepted employees” as normally paid from the appropriation but whose job is necessary to protect public health and safety. “Exempt employees” are those whose work is paid for by funds apart from the budgetary appropriations. If an employee is neither excepted or exempt, then they are furloughed. Exempt employees continue to receive paychecks during a shutdown, while excepted employees do not.

In the FDA context, exempt employees include commissioned corps officers (fully exempt) and employees working on activities funded by user fees (who may be fully exempt, partially exempt, or furloughed, depending on available dollars and priorities). Excepted employees would include, for example, any employees who provide real-time public safety and health services that cannot be deferred (e.g., those performing high-risk or emergency inspections or responsible for ongoing surveillance systems). The concept of “excepted employee” can be defined broadly or narrowly. Either way, the longer a shutdown continues, the more likely furloughed employees will be called back to deal with imminent problems (i.e., become excepted employees). Once that problem is resolved they may find themselves furloughed again or they may continue as an excepted employee.

Editorial note: The Analysis and Commentary section is written by Steven Grossman, Deputy Executive Director of the Alliance for a Stronger FDA.

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