Government shutdown doesn’t stop ‘Obamacare’ but may have consequences

Joanne Kenen

About Joanne Kenen

Joanne Kenen, (@JoanneKenen) the health editor at Politico, is AHCJ’s topic leader on health reform and curates related material at healthjournalism.org. She welcomes questions and suggestions on health reform resources and tip sheets at joanne@healthjournalism.org. Follow her on Facebook.

Photo by Sean Stayte via flickr.

A brief explanation of why a government shutdown over “Obamacare” won’t shutdown “Obamacare:”

Congress is fighting (among other things) over a continuing resolution, better known as a CR. That’s a short-term spending bill to keep the government running because the bitterly divided Congress hasn’t agreed on its normal series of annual spending bills.

But those appropriations bills – wrapped up in the CR – are for “discretionary” spending. “Discretionary” for Congress doesn’t really mean discretionary the way you and I mean discretionary: It’s not “elective” or “optional” or a trip to Italy once the piggy bank is full. It’s a technical term that wraps in a whole lot of what the government does day in and day out.

But it’s not “mandatory” spending – which includes (most of) Social Security, Medicare, Medicaid – and now the subsidies and other key parts of the Affordable Care Act. It’s not that Congress can’t change mandatory spending – it can and it does. But for our purposes here – it’s separate from discretionary spending and the CR.

In addition, a lot of the money that is discretionary was allocated in prior years – money to set up exchanges, etc., has already been spent. Stopping ACA funding doesn’t “unspend” that.

So when Congress “shuts down” the government, it doesn’t shut down everything. And the administration (relying on legal precedents which the GOP may or may not like but the White House is using) has wiggle room. The basic argument is that mandatory spending, simply stated, is untouched by a shutdown – and that to keep those mandatory programs running, some of the staff and services that are paid under discretionary spending bills can keep working. They don’t get “shut down.”

That doesn’t mean that all workers in the Department of Human Services (including the Centers for Disease Control and Prevention, the National Institutes of Health, etc.) keep working – “nonessential” ones will get furloughed. HHS posted its contingency plans.

But it does mean that the Affordable Care Act health insurance exchanges open.

What is not entirely clear as I write this on Monday morning – we may learn more later today and we’ll know more tomorrow – is how the shutdown affects the troubleshooting. We all know there will be glitches in the launch; bits and pieces of certain exchanges are already delayed and I don’t think we’ll be surprised to see more problems. But it’s not yet clear, to me at least, whether they will be fixed as quickly in a shutdown as they would be without a shutdown. It’s worth nothing that much of the technical work is done by HHS contractors.

We may never know – there will be a lot of fingerpointing and blame-gaming going on. If X happens tomorrow, and can’t be fixed until, say, next Monday would that have been the case even without the shutdown? Or would it have been fixed lickety-split? I’m not sure we’ll ever know. But we’ll have plenty to write about.

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