Federal rulemaking does not come to a complete halt during a government shutdown, but the process slows considerably. While issuing regulations and rulemaking during a lapse in federal appropriations is permitted, limitations in staff and operational support make it difficult for the rulemaking process to proceed. For many rules, pauses or delays in the rulemaking process should be expected. Regulations.gov continues to operate during a lapse in funding, meaning the public is still able to submit comments during open comment periods. However, the public posting of comments is delayed because of a lack of staff available to read, review, and post said comments. Generally, the actions of the Office of Management and Budget (OMB) and the Office of Information and Regulatory Affairs (OIRA) during a shutdown can depend greatly on who is in charge.
According to the Office of the Federal Register, “In the event of an appropriations lapse, the Office of the Federal Register (OFR) would be required to publish documents directly related to the performance of governmental functions necessary to address imminent threats to the safety of human life or protection of property.” Additionally, the Centers for Medicare and Medicaid Services (CMS) posted that “CMS payment rule development and other policy decisions would depend on the funding source and duration of a lapse in appropriation. With limited staff to review and provide operational support, we would expect delays in rule-making and other policy development.”
Given the current shutdown, these delays will impact rules scheduled to be released this time of year. While this applies across agencies, CMS provides a clear example: the annual Medicare payment regulations that follow a calendar year cycle are likely to be impacted. Historically, shutdowns have caused delays for these rules. The 2013 government shutdown saw the 2014 Physician Fee Schedule (PFS) final rule released on November 27, 2013—almost 4 weeks de facto after the November 1 deadline (60 days before the rule’s effective date of January 1, 2014). In that instance, CMS waived the 60-day notice requirement, asserting it would not be in the public’s interest to delay the rule’s effective date.
By comparison, the calendar year 2015 PFS was released on October 31. Even without a shutdown, however, CMS sometimes fails to meet the November 1 issuance date for calendar year Medicare payment rules; in 2012, it issued the final rule for the 2013 PFS on November 16. More broadly, the George Washington University Regulatory Studies Center also notes that from “November 1 to December 21, 2018, OFR published an average of 329 pages per day; during the shutdown, it published an average of 114 per day—approximately a 65 percent decrease. During the Obama administration shutdown in 2013, the Federal Register published 45 percent fewer pages per day.”
In some cases, administrations seek to continue regulatory work despite a shutdown. The Government Accountability Office (GAO) found in December 2019 that during the first Trump administration “OMB violated the Antideficiency Act when, during the lapse in appropriations, it incurred obligations to review a Department of Labor (DOL) final rule and notice of proposed rulemaking. OMB lacked available budget authority for these activities and no exception to the Antideficiency Act permitted OMB to incur these obligations.”
For the current shutdown, the Trump administration’s OMB has exempted much more staff from furlough than usual compared with previous ones. While the retention of OMB staff during the shutdown could help facilitate the review and issuance of regulations, it has been reported that the agency has maintained staffing at a higher level than usual to have the workforce needed to enact the reductions in force at federal agencies that OMB Director Russ Vought is pursuing.
As of this writing there are a total of more than 100 regulatory actions pending review at OMB (54 proposed rules, 5 pre-rules, 11 notices of rulemaking, 10 interim rules, and 22 final rules). To view what is pending at OMB by agency, visit this dashboard.
Organizations awaiting OMB review and clearance of any of the listed regulatory actions should anticipate delays. For guidance on navigating these impacts, or to discuss legislative or regulatory strategies, contact the authors or reach out to Venable’s Legislative or Health Legislative Groups.
Additional Resources:
- Centers for Medicare and Medicaid Services, FY 2026 Lapse Plan Center for Medicare and Medicaid Services (CMS)
- Office of the Federal Register, Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Notices
- Office of the Federal Register, What happens if the Government shuts down?
- AAMC, Effects of a Government Shutdown on HHS Operations and Key Medicare/Medicaid Policies
*The authors would like to thank Government Affairs Policy Analyst Cassidy Barnes for assisting with this article.