Affordable Care Act (ACA) and the Appropriations Process: FAQs Regarding Potential Legislative Changes and Effects of a Government Shutdown

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Affordable Care Act (ACA) and the

Appropriations Process: FAQs Regarding

Potential Legislative Changes and Effects of a

Government Shutdown

(name redacted)

Specialist in Health Policy

(name redacted)

Analyst on Congress and the Legislative Process

(name redacted)

Legislative Attorney

(name redacted)

Specialist in Government Organization and Management

October 2, 2013

Congressional Research Service

7-....

www.crs.gov

R43246

ACA and the Appropriations Process

Contents

Introduction...................................................................................................................................... 1

Background on the Affordable Care Act .......................................................................................... 2

(1) How does the ACA reform the private health insurance market and expand health

insurance coverage? ............................................................................................................... 2

(2) How does ACA implementation affect federal spending? ................................................... 3

(3) To date, what changes to the ACA have been enacted into law? ......................................... 5

ACA and the Annual Appropriations Process .................................................................................. 6

(4) Can an enacted appropriations law make substantive changes to prior laws? ..................... 6

(5) Does a funding restriction on enforcement of a particular law suspend that law? .............. 7

(6) How long is a provision in an appropriations act effective? ................................................ 8

(7) How might House and Senate procedural rules specific to considering

appropriations measures affect the inclusion of language that repeals, defunds, or

otherwise amends the ACA? .................................................................................................. 8

Potential Impact of a Shutdown on ACA Implementation............................................................. 10

(8) What will happen to ACA implementation during a government shutdown?.................... 10

(9) Are there alternative sources of funding to implement the ACA in the absence of

appropriated funds for FY2014? .......................................................................................... 11

(10) In the absence of FY2014 appropriated funding, will some ACA-related

activities continue during a government shutdown? If so, how will these decisions

be made? ............................................................................................................................... 12

Tables

Table A-1. Enacted Authorizing Legislation That Amends the ACA ............................................ 18

Table A-2. ACA-Related Provisions in Annual Appropriations Acts, FY2011-FY2013 ............... 20

Appendixes

Appendix A. Laws that Repeal or Amend Provisions of the Affordable Care Act ........................ 17

Contacts

Author Contact Information........................................................................................................... 21

Acknowledgments ......................................................................................................................... 21

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ACA and the Appropriations Process

Introduction

Congress has yet to complete legislative action on any of the 12 regular appropriations bills to

fund the routine operations of federal agencies for FY2014, which began on October 1, 2013.1

Moreover, lawmakers have been unable to agree on a continuing appropriations bill, or

continuing resolution (CR),2 to provide funding for part or all of the new fiscal year. As a result,

the federal government has begun a shutdown of programs that lack budget authority3 to continue

operations in FY2014, except in certain circumstances.4

Congress is deeply divided over implementation of the Patient Protection and Affordable Care

Act (ACA),5 the health reform law enacted in March 2010. Some lawmakers opposed to the ACA

have advocated the use of the appropriations process to eliminate funding for the law or to delay

its implementation. On September 20, 2013, the House approved an FY2014 CR (H.J.Res. 59) to

provide temporary funding for the federal government until December 15, 2013. H.J.Res. 59, as

passed by the House, incorporated language that would prohibit the use of any federal funds to

carry out the ACA. The Senate amendment to H.J.Res. 59 did not incorporate the House ACA

defunding language. The House then proposed changes to the Senate amendment to delay the

ACA’s implementation, but the Senate rejected those changes. With the two chambers unable to

reach agreement on H.J.Res. 59 by October 1, 2013, the government commenced a partial

shutdown of its operations.

The Office of Management and Budget (OMB) has posted agency shutdown plans (also called

contingency plans) on its website.6 These plans may be modified and re-posted. Some press

outlets have reported on the contents of these plans and their potential implications for agency

activities.7

Under current practice, each House and Senate Appropriations subcommittee typically drafts one regular

appropriations bill for the activities under its jurisdiction, for a total of 12 bills each fiscal year. The full Appropriations

Committee considers and reports each bill to the House. For further information on the status of FY2014 appropriations

legislation and enacted laws, see the CRS Appropriations Status Table: FY2014, available at http://www.crs.gov/pages/

AppropriationsStatusTable.aspx. Consolidated appropriations measures, sometimes referred to as “omnibus bills,”

where two or more of the regular bills are combined into one legislative vehicle, have also been enacted in prior fiscal

years. For further information, see CRS Report RL32473, Omnibus Appropriations Acts: Overview of Recent Practices,

by (name redacted).

Continuing appropriations acts are generally enacted in the form of joint resolutions, which is why such acts are

referred to as continuing resolutions (or CRs).

Appropriations bills provide agencies with budget authority, which is the legal authority to incur financial obligations

(e.g., hire employees, purchase services, award grants, or sign contracts) that result in immediate or future government

expenditures (or outlays). For further explanations of these terms, see U.S. Government Accountability Office

(hereinafter GAO), A Glossary of Terms Used in the Federal Budget Process, GAO-05-734SP, September 2005, pp.

20-21, available at http://www.gao.gov.

These exceptions are discussed in more detail in the answer to question 10 in this report. For additional information,

see CRS Report RL34680, Shutdown of the Federal Government: Causes, Processes, and Effects, coordinated by

(name redacted)http://www.crs.gov/pages/Reports.aspx?PRODCODE=RL34680.

The ACA was signed into law on March 23, 2010 (P.L. 111-148, 124 Stat. 119). A week later, on March 30, 2010, the

President signed the Health Care and Education Reconciliation Act (HCERA; P.L. 111-152, 124 Stat. 1029), which

amended multiple health care and revenue provisions in the ACA. All references to the ACA in this report refer to the

law as amended by HCERA.

See http://www.whitehouse.gov/omb/contingency-plans.

See, for example, at WashingtonPost.com, “Impact of a Government Shutdown,” http://www.washingtonpost.com/

wp-srv/special/politics/2013-shutdown-federal-department-impact/; and “Government Shutdown: What’s Open,

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ACA and the Appropriations Process

The current legislative debate over using the FY2014 appropriations process to defund or delay

implementation of the ACA has prompted a number of questions about the law’s core health

reform provisions and how their implementation affects federal spending. Questions have also

been raised about the legislative actions already taken by lawmakers to amend the ACA, and

about the various legal and procedural considerations arising from the current efforts to use the

appropriations process to defund or delay the law. Finally, there is the question of what impact a

government shutdown will have on ACA implementation. This report, which will be revised and

updated to reflect key legislative developments, provides brief answers to these questions.

Background on the Affordable Care Act

(1) How does the ACA reform the private health insurance market

and expand health insurance coverage?8

Among its many provisions, the ACA reforms the private health insurance market and sets

minimum standards for health coverage. The law creates competitive private health insurance

marketplaces—or exchanges—in each state through which individuals and small employers will

be able to shop for, select, and enroll in qualified health plans. The exchanges began open

enrollment on October 1, 2013. Insurance coverage bought through the exchanges will begin on

January 1, 2014. Plans offered through the exchanges, and certain other plans, must meet

essential health benefit standards requiring them to cover emergency services, hospital care,

physician services, preventive care, prescription drugs, and mental health and substance use

disorder treatment, among other specified services.

Refundable tax credits will be available to certain individuals and families with incomes between

100% and 400% of the federal poverty level (FPL) to help offset the cost of purchasing insurance

coverage through the exchanges. In addition, certain individuals and families receiving the

premium credit will be eligible for a subsidy to lower their cost-sharing (i.e., out-of-pocket costs

such as deductibles and co-pays).

The ACA also establishes new federal requirements for private health insurance, some of which

have already taken effect. For example, health plans may not deny coverage to children up to age

19 based on a preexisting condition, young adults up to age 26 generally must be allowed to

remain on their parents’ health plans, and plans must cover preventive services and

immunizations recommended by various specified entities without any cost-sharing. The

remaining health insurance requirements take effect in 2014 when health plans will be required to

sell and renew policies to all individuals, and may not deny coverage for preexisting conditions at

(...continued)

What’s Closed,” http://www.washingtonpost.com/wp-srv/special/politics/whats-open-whats-closed/.

The information provided in the answer to this question is drawn from CRS Report R41664, ACA: A Brief Overview

of the Law, Implementation, and Legal Challenges, coordinated by (name redacted). While a detailed examination

of the ACA is beyond the scope of this report, numerous CRS products that provide more in-depth information on the

many new programs and activities authorized and funded by the law are available at http://www.crs.loc.gov (see under

“Issues Before Congress: Health”).

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ACA and the Appropriations Process

any age or otherwise discriminate based on health status. Premiums may vary by limited amounts,

but only based on age, family size, geographic area, and tobacco use.9

Also beginning in 2014, most U.S. citizens and legal residents will be required to have health

insurance. Those who remain uninsured may have to pay a penalty. As plans will no longer be

able to restrict coverage of individuals with health problems, the ACA’s individual insurance

mandate is intended to ensure that healthy individuals participate in the insurance market rather

than waiting until they need health care services. Increasing the number of healthy persons in the

risk pool helps spread the risk.

In addition to expanding access to private health insurance coverage, the ACA, as enacted,

requires state Medicaid programs to expand coverage to all eligible nonelderly, non-pregnant

individuals under age 65 with incomes up to 133% of the FPL. The federal government will

initially cover 100% of the expansion costs, phasing down to 90% of the costs by 2020. As

enacted, Medicaid law would have allowed the Secretary of Health and Human Services (HHS)

to withhold existing federal Medicaid matching funds if states refused to comply with the

expansion. However, in National Federation of Independent Business v. Sebelius, the U.S.

Supreme Court found that the Medicaid expansion unconstitutionally coerced the states by

threatening them with the loss of their existing federal Medicaid matching funds.10 The Court

precluded the HHS Secretary from penalizing states that choose not to participate in the Medicaid

expansion, a decision that effectively makes Medicaid expansion an option for states.11

(2) How does ACA implementation affect federal spending?

Implementation of the ACA is projected to have a significant impact on both discretionary and

direct spending. Discretionary spending is both controlled and funded through the annual

appropriations process. It typically covers the routine costs of running federal agencies and

offices, including wages and salaries.12 Direct spending—also referred to as mandatory

spending—is controlled through authorizing laws.13 It includes spending on entitlement programs

such as Medicare and Social Security. Such spending may be funded through provisions in the

authorizing law that contains temporary or permanent appropriations for that purpose.

Alternatively, when the authorizing law contains no appropriations, such mandatory programs are

funded through the annual appropriations process. This is sometimes referred to as “appropriated

mandatory” or “appropriated entitlement” spending.14

For more information, see CRS Report R42069, Private Health Insurance Market Reforms in the Patient Protection

and Affordable Care Act (ACA), by (name redacted) and (name redacted).

NFIB v. Sebelius, No. 11-393, slip op. (June 28, 2012), http://www.supremecourt.gov/opinions/11pdf/11393c3a2.pdf.

For more information, see CRS Report R42367, Medicaid and Federal Grant Conditions After NFIB v. Sebelius:

Constitutional Issues and Analysis, by (name redacted).

For further information on discretionary spending, see CRS Report R42388, The Congressional Appropriations

Process: An Introduction, by (name redacted).

An authorization may generally be described as a statutory provision that defines the authority of the government to

act. It can establish or continue a federal agency, program, policy, project, or activity. Further, it may establish policies

and restrictions and deal with organizational and administrative matters. It may also explicitly authorize subsequent

congressional action to provide appropriations. For further information, see CRS Report R42098, Authorization of

Appropriations: Procedural and Legal Issues, by (name redacted) and (name redacted).

For further information on direct spending see CRS Report RS20129, Entitlements and Appropriated Entitlements in

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To answer this question, it is helpful to organize spending on ACA implementation into three

broad categories:

Direct (Mandatory) Spending on Expanding Insurance Coverage

This category, which accounts for most of the projected federal spending under the ACA, includes

the exchange subsidies (i.e., premium tax credits and cost-sharing subsidies), the federal

government’s share of the costs of Medicaid expansion, and tax credits for small employers. In its

March 2010 estimates of the federal budgetary impact of the ACA, the Congressional Budget

Office (CBO) projected that insurance coverage expansion under the ACA would cost $938

billion over the 10-year period FY2010-FY2019. The CBO further projected that those costs

would be largely offset by revenues from new taxes and fees established in the ACA, and by

savings from the law’s changes to Medicare payments that are designed to slow the growth in

future spending on this program.15

Direct (Mandatory) Spending for Other Programs

The ACA included multiple provisions financed with appropriations in the ACA that provide

billions of dollars of direct spending to support new and existing grant programs and other

activities.16 For example, the law provided funding for several temporary insurance programs for

targeted groups, including a temporary high-risk pool for uninsured individuals with preexisting

conditions, and a reinsurance program to reimburse employers for a portion of the health

insurance claims’ costs for their 55- to 64-year-old retirees. It provided funding for grants to

states to plan and establish health insurance exchanges. The ACA also provided a permanent

appropriation, available for 10-year periods, for the Centers for Medicare & Medicaid Services

(CMS) to test and implement innovative health care payment and service delivery models.

In addition, the ACA created four special funds and appropriated amounts to each one. First, the

Community Health Center Fund (CHCF) is providing $11 billion over five years to help support

community health center operations and the National Health Service Corps. Second, the PatientCentered Outcomes Research Trust Fund (PCORTF) is supporting comparative effectiveness

research through FY2019 with a mix of appropriations and transfers from the Medicare trust

funds. Third, the Prevention and Public Health Fund (PPHF), for which the ACA provided a

permanent annual appropriation, is intended to support prevention, wellness, and other public

health-related programs and activities authorized under the Public Health Service Act (PHSA).

Finally, the Health Insurance Reform Implementation Fund (HIRIF), for which the ACA

appropriated $1 billion, is helping cover the administrative costs of implementing the law.

The Middle Class Tax Relief and Job Creation Act (P.L. 112-96) included a provision to reduce

the ACA’s appropriations to the PPHF for each fiscal year over the period FY2013-FY2021 by a

(...continued)

the Federal Budget Process, by (name redacted)

For more analysis of the ACA’s projected impact on federal direct spending and revenues, including details of

CBO’s more recent budgetary estimates, see CRS Report R42051, Budget Control Act: Potential Impact of

Sequestration on Health Reform Spending, by (name redacted).

For a summary of all the ACA’s mandatory appropriations, and the status of obligation of those funds, see CRS

Report R41301, Appropriations and Fund Transfers in the Patient Protection and Affordable Care Act (ACA), by (na

me redacted).

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total of $6.25 billion. Lawmakers also have used the appropriations process to rescind some or all

of the ACA’s funding for specific programs and amend other provisions of the law. For more

details, see the answer to question 3 below.

Discretionary Spending

Besides its effect on direct (i.e., mandatory) spending, implementation of the ACA is likely to

affect discretionary spending, which is controlled through the annual appropriations process.

First, the ACA created numerous new discretionary grant programs and provided for each an

authorization of appropriations. To date, however, few of these programs have received

discretionary funding.17 Second, the ACA reauthorized funding for many existing discretionary

grant programs authorized under the PHSA; notably, the federal health workforce programs

administered by the Health Resources and Services Administration (HRSA). The authorization of

appropriations for many of these programs expired prior to the ACA’s enactment, though they

continued to receive an annual appropriation. The ACA also permanently reauthorized

appropriations for the federal health centers program and for programs and services provided by

the Indian Health Service (IHS). Congressional appropriators have in general continued to

provide discretionary funding for these longstanding programs, though typically at funding levels

below the amounts authorized by the ACA.18

In addition, there is the discretionary spending by the federal agencies responsible for

implementing the ACA’s reforms. The CBO projects that the two agencies largely responsible for

the law’s implementation—CMS and the Internal Revenue Service (IRS)—each will incur

substantial costs in connection with administering and enforcing the law. While the agencies have

used mandatory funds (e.g., HIRIF) to support ACA implementation, they also have requested

discretionary funds for ACA-related activities in their annual budget submissions. For FY2013,

CMS requested an additional $1 billion for ACA implementation, and the IRS requested an

additional $360 million to administer and enforce the ACA’s tax-related provisions. The Full-Year

Continuing Appropriations Act, 2013 (P.L. 113-6, Division F) did not provide any of these

requested funds for ACA implementation.19 The Administration’s FY2014 budget request

included $1.4 billion in new funds for CMS for ongoing ACA implementation, plus an additional

$440 million for the IRS for its ACA-related activities.

(3) To date, what changes to the ACA have been enacted into law?

Since the ACA’s enactment in March 2010, Congress has debated implementation of the law on

numerous occasions and considered multiple bills to repeal or otherwise amend the law. Most of

this legislative activity has been led by lawmakers opposed to specific provisions in the ACA, or

to the entire law. The legislation includes stand-alone bills and provisions in broader, often

unrelated measures that would (1) repeal the law in its entirety and, in some instances, replace it

While most of the new discretionary grant programs authorized by ACA have not received any discretionary funding,

several of these programs have been supported with mandatory funds from the PPHF.

For more details on all the authorizations (and reauthorizations) of discretionary funding in ACA, including the

FY2011-FY2013 funding levels for programs that received an appropriation, see CRS Report R41390, Discretionary

Spending in the Patient Protection and Affordable Care Act (ACA), coordinated by (name redacted).

For more discussion on federal spending to administer and enforce ACA, see CRS Report R42051, Budget Control

Act: Potential Impact of Sequestration on Health Reform Spending, by (name redacted), pp. 19-21.

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with new law; (2) repeal, or by amendment restrict or otherwise limit, specific provisions in the

law; (3) eliminate mandatory appropriations provided by the ACA and rescind all unobligated

funds;20 (4) replace ACA mandatory appropriations with authorizations of appropriations, and

rescind all unobligated funds; and (5) block or otherwise delay ACA implementation. A few bills

with sufficiently broad and bipartisan support have been approved in both the House and the

Senate and signed into law. Table A-1 in Appendix A summarizes, by Congress, the authorizing

legislation enacted to date that amends the ACA.

In addition, lawmakers have used the annual appropriations process to try to modify the ACA.

Numerous ACA-related provisions were added to the appropriations bills considered, and in some

instances reported, by the House Appropriations Committee during the past three fiscal years (i.e.,

FY2011-FY2013). These provisions included language prohibiting the use of discretionary funds

provided in the bill to implement specific ACA provisions or the entire law, as well as broader

language to repeal, restrict, or rescind direct spending for, specific ACA provisions. While none

of the discretionary funding prohibitions survived, a few of the broader provisions affecting direct

spending were incorporated into the final versions of the appropriations bills that were signed into

law. Table A-2 in Appendix A summarizes the ACA-related provisions in enacted annual

appropriations acts for FY2011-FY2013.

ACA and the Annual Appropriations Process

Congress uses the annual appropriations process to fund the routine activities of most federal

agencies. In addition to providing budget authority, appropriations acts may also contain

provisions that seek to amend or repeal existing law, or enact new provisions of law. In some

cases, these provisions affect the purposes for which appropriations are being provided, while in

others, such provisions are unrelated to those purposes. If enacted into law, the legal effect of

these provisions is no less valid simply because they originated in an appropriations vehicle,

although there will be a rebuttable presumption that such provisions are of a temporary duration.

Before these provisions are enacted, there may be procedural obstacles to including “legislative

language” in an appropriations act under both House and Senate rules. These legal and procedural

considerations are discussed in more detail below.

(4) Can an enacted appropriations law make substantive changes to

prior laws?

An appropriations act that is passed by the Senate and House of Representatives and signed by

the President, or enacted over his veto, may amend or repeal prior legislation in the same way as

any other act of Congress.21 This can include amending or repealing prior statutes that authorize

Budget authority is generally made available for obligation during a specified time period, typically the upcoming

fiscal year. Once budget authority reaches the end of that time period, it “expires,” meaning that it is no longer

available for obligation. A rescission is a provision of law that cancels budget authority prior to when it would

otherwise expire, making it unavailable for future obligation. For further explanations of these terms, see GAO, A

Glossary of Terms Used in the Federal Budget Process, GAO-05-734SP, September 2005, pp. 85-86, available at

http://www.gao.gov.

“Congress can and does ‘legislate’ in appropriation acts. … It may well be that the device is ‘unusual and frowned

upon.’ ... It also may well be that the appropriation act will be narrowly construed when it is in apparent conflict with

authorizing legislation. ... Nevertheless, appropriation acts are, like any other statute, passed by both Houses of

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particular programs or activities, as well as prior laws that provide mandatory appropriations. In

all of these cases, a primary legal concern will be whether the text of the provision is sufficiently

clear to evidence Congress’s intent to amend or repeal a prior statute. In the easiest cases, the

amendment or repeal will be explicit, making Congress’s intent plain. However, it is also possible

for an appropriations act to implicitly amend or repeal a prior statute. Such “repeal by

implication” is generally disfavored, and courts will construe statutes to avoid this result

whenever reasonably possible.22 The doctrine disfavoring repeal by implication “applies with

even greater force when the claimed repeal rests solely on an Appropriations Act,” since it is

presumed that appropriations laws do not normally change substantive law.23 Nevertheless,

Congress can repeal substantive law through appropriations measures if the intent to do so is

clearly expressed.24

(5) Does a funding restriction on enforcement of a particular law

suspend that law?

An appropriations law may include a proviso restricting the use of funds provided in that act, or

any other appropriations act, from being used to enforce a particular provision of law. In light of

Congress’s constitutional power over the purse,25 the Supreme Court has recognized that

“Congress may always circumscribe agency discretion to allocate resources by putting

restrictions in the operative statutes.”26 Where Congress has done so, “an agency is not free

simply to disregard statutory responsibilities.”27

However, some provisions of the ACA may not rely exclusively upon the federal government, or

the use of federal funds, to operate. For example, the ACA imposed numerous new restrictions on

health insurers, such as prohibiting preexisting condition exclusions and requiring coverage of

certain preventive services without cost-sharing. While the federal government has a role in

enforcing such provisions, these requirements may also be enforced by state entities or via civil

lawsuits brought by participants or beneficiaries of a group health plan.28 Because these

enforcement actions may not involve the expenditure of federal funds, it is possible that

provisions such as these would not be completely impaired by a simple funding restriction, unless

that funding restriction also had the effect of explicitly or implicitly repealing the underlying law

as described above.

(...continued)

Congress and either signed by the President or enacted over a presidential veto. As such, and subject of course to

constitutional strictures, they are ‘just as effective a way to legislate as are ordinary bills relating to a particular

subject.’ Friends of the Earth, 485 F.2d at 9; Envirocare of Utah Inc. v. United States, 44 Fed. Cl. 474, 482 (1999).”

GAO, 1, Principles of Federal Appropriations Law, 2-45 (Jan. 2004). (internal citations omitted).

GAO, 1, Principles of Federal Appropriations Law, 2-43 (Jan. 2004) (citing TVA v. Hill, 437 U.S. 153 (1974).

TVA v. Hill, 437 U.S. 153, 190 (1978).

U.S. v. Will, 449 U.S. 200, 222 (1980).

U.S. CONST. art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury but in Consequence of Appropriations

made by Law”).

Lincoln v. Vigil, 508 U.S. 182, 192-193 (1993).

Id.

42 U.S.C. § 300gg-22; 29 U.S.C. § 1132.

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(6) How long is a provision in an appropriations act effective?

A second question that frequently arises in the context of funding limitations is whether the

limitation is of a temporary or permanent nature. As annual appropriations acts (including CRs)

are made for a particular fiscal year or other fixed time period, it is generally presumed that

everything contained in the act is effective only for the fiscal year or time period covered. This

presumption can be defeated if the provision uses “words of futurity” or if the provision is of a

general character bearing no relation to the object of the appropriation.29 Common “words of

futurity” include “hereafter,” “henceforth,” or “after the date of approval of this Act.”30

Additionally, if the provision bears no direct relationship to the appropriations act in which it

appears, this is an indication of permanence. For example, a provision prohibiting the retroactive

application of an existing tax credit made no mention of the use of funds, and was found

sufficiently unrelated to the rest of a supplemental appropriations act to support a conclusion of

permanence.31 There does not appear to be a bright line rule; instead, the further the relationship,

the greater the inference of permanence will be. Additionally the “determination under rules of

the Senate that a proviso is germane to the subject matter of the appropriation bill will negate an

argument that the proviso is sufficiently unrelated as to suggest permanence.”32

(7) How might House and Senate procedural rules specific to

considering appropriations measures affect the inclusion of

language that repeals, defunds, or otherwise amends the ACA?33

The primary procedural restrictions in the House and Senate that are specific to the content of

appropriations measures, and amendments thereto, are found in House Rule XXI and Senate Rule

XVI. These rules restrict the inclusion of “legislative language” in appropriations measures, a

restriction that is based on whether the language has the effect of changing existing law.34 While

the language of the House and Senate rules and their associated precedents have some points of

difference,35 both chambers have generally considered legislative language to include any

provision in an appropriations measure that would repeal or amend provisions in another act.36

GAO, 1 Principles of Federal Appropriations Law 3d, GAO-04-261SP, at 2-34 (Jan. 2004).

Id. at 2-35.

Id. at 2-38 (citing B-214508, Feb. 1, 1984, available at http://www.gao.gov/products/B-214058).

Such determinations would occur as part of the legislative history of the appropriations act. Id.

This section draws, in part, on information contained in CRS Report R41634, Limitations in Appropriations

Measures: An Overview of Procedural Issues, by (name redacted). For further information on these issues, see pp. 16.

House Rule XXI, clauses 2(b) and (c); Senate Rule XVI, paragraphs 2 and 4. Under the precedents associated with

these rules, “legislative language” is any provision that would add to or alter existing law, either explicitly or implicitly.

For example, Senate Rule XVI, paragraphs 2 and 4 explicitly excludes as legislative any language that includes a

funding prohibition that takes effect upon a contingency. In the House, the language of the rule does not explicitly

address contingencies, but associated precedents include many instances where contingent funding prohibitions are

considered to be legislative. For further information, see Rules of the House of Representatives, in House Manual, One

Hundred Thirteenth Congress, H.Doc. 112-161, 112th Cong., 2nd sess., [compiled by] Thomas J. Wickham,

Parliamentarian (Washington: GPO, 2013), [Hereafter, House Manual] § 1055.

House Manual, § 1056; Floyd M. Riddick and Alan S. Frumin, Riddick’s Senate Procedure: Precedents and

Practices, 101st Cong., 2nd sess., S. Doc. 101-28 (Washington: GPO, 1992), [Hereafter Riddick’s Senate Procedure],

pp. 190-191.

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Consequently, because mandatory funding mechanisms are based on the requirements of other

enacted laws, an appropriations provision that defunds the mandatory spending in ACA through

repealing, amending, or superseding that law would likely be considered by the House and Senate

to be legislative.37

While both House and Senate rules restrict the inclusion of legislative language in general

appropriations bills, these restrictions are applicable in different circumstances. Clauses 2(b) and

bills and amendments thereto;38 clause 5 of House Rule XXII also prohibits legislative language

in conference reports for general appropriations bills. In contrast, while paragraphs 2 and 4 of

Senate Rule XVI generally prohibit the inclusion of legislative language in committee or floor

amendments to general appropriations bills,39 the rule also includes exceptions that would allow

legislative language under certain circumstances. Specifically, legislative amendments are

allowed when they are determined to be germane to legislative language passed by the House and

already contained in the appropriations bill. If a point of order is raised against an amendment

based on it including legislative language, the proponent may counter by raising a “defense of

germaneness.” That is, the proponent may ask for a decision of the Senate to allow the

amendment notwithstanding the legislative language because it is germane to legislative language

already in the bill. If a germaneness defense is raised for an amendment, the presiding officer

makes an initial “threshold” determination as to whether there exists “any House language which

is arguabl[y] legislative to which the amendment at issue conceivably could be germane.”40 If the

bill is determined to contain such language, the question is put to the Senate for an immediate

vote, so that if a majority of Senators affirms that the amendment is germane, the point of order

falls and the amendment containing legislation is eligible for floor consideration. There is one

significant modification to the procedures just described if the Senate amendment is to a Housepassed bill containing continuing appropriations or to a continuing resolution. Under a Senate

precedent, if the defense of germaneness is raised for an amendment, the presiding officer

submits the question directly to the Senate without first making any threshold determination.41

In addition to prohibiting legislative language in different circumstances, the precedents

associated with House Rule XXI and Senate Rule XVI also use different definitions as to what

constitutes a “general appropriations bill.” In the House, general appropriations bills are the

annual appropriations acts (or any combination thereof) and any supplemental appropriations acts

that cover more than one agency. Continuing resolutions are not considered to be general

appropriations bills.42 In the Senate, “general appropriations bills” are the annual appropriations

measures (or any combination thereof) and any supplemental or continuing appropriations

measures that cover more than one agency or purpose.43 As a consequence of these definitions,

The House and Senate parliamentarians are the advisers to the presiding officers on what constitutes legislative

language within the appropriations context. This report should not be considered a substitute for consultation with the

parliamentarian and his associates on specific procedural problems and options.

In the House, this prohibition also includes motions to recommit general appropriations measures with instructions

containing legislative language (see House Manual, § 1044).

In the Senate, this prohibition on legislative language in amendments includes amendments between the houses

(Riddick’s Senate Procedure, p. 190).

Riddick’s Senate Procedure, p. 167.

Ibid., p. 168.

See House Manual, § 1044.

Riddick’s Senate Procedure, p. 159.

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ACA and the Appropriations Process

the House may consider and pass a CR containing legislative language, and the Senate may take

up a House-passed CR and consider germane amendments, without violating the respective rules

of either chamber.

On this and other matters, the rules of the House and Senate are not self-enforcing. A Member

must raise a point of order during consideration of the measure or amendment to trigger the

procedures described above.44 In addition, the House may waive clauses 2(b) and (c) of Rule XXI

through the adoption of a special rule, unanimous consent, or suspension of the rules.45 The

Senate, likewise, may waive paragraphs (2) and (4) of Rule XVI through unanimous consent or

suspension of the rules.46

Potential Impact of a Shutdown on ACA

Implementation

(8) What will happen to ACA implementation during a government

shutdown?

In brief, it appears that substantial ACA implementation will continue during a lapse in annual

appropriations that results in a temporary government shutdown, for two reasons.

•

The first reason is that some agencies in the federal government will be able to

rely on sources of funding other than annual discretionary appropriations to

support implementation activities. Such funding includes multiple-year and noyear discretionary funds appropriated in prior fiscal years that are still available

for obligation, as well as mandatory funds.47

•

The second reason is that during a lapse in appropriations (also known as a

“funding gap”),48 agencies may continue to perform certain types of activities

that fall under exceptions to the Antideficiency Act.49 The Antideficiency Act

For further information, see CRS Report 98-307, Points of Order, Rulings, and Appeals in the House of

Representatives, by (name redacted), and CRS Report 98-306, Points of Order, Rulings, and Appeals in the Senate,

by (name redacted).

For a discussion of these practices in the context of regular appropriations measures, see CRS Report R42933,

Regular Appropriations Bills: Terms of Initial Consideration and Amendment in the House, FY1996-FY2013, by

(name redacted).

For further information on suspension of the rules for Rule XVI, see Riddick’s Senate Procedure, pp. 177.

The term “multiple-year budget authority” refers to budget authority that remains available for obligation for a fixed

period of time in excess of one fiscal year. The term “no-year budget authority” refers to budget authority that remains

available for an indefinite period of time (e.g., “to remain available until expended”). See U.S. Government

Accountability Office (hereinafter GAO), A Glossary of Terms Used in the Federal Budget Process, GAO-05-734SP,

September 2005, p. 22. Mandatory funding refers to budget authority that is provided in and controlled by laws other

than the annual appropriations acts.

For more information about funding gaps, see CRS Report RS20348, Federal Funding Gaps: A Brief Overview, by

(name redacted).

31 U.S.C. § 1341. The Antideficiency Act (31 U.S.C. §§ 1341-1342, §§ 1511-1519) is discussed in CRS Report

RL30795, General Management Laws: A Compendium, by (name redacted) et al., pp. 93-97. GAO provides

information on the act, at http://www.gao.gov/legal/lawresources/antideficiencybackground.html.

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ACA and the Appropriations Process

generally prohibits continued operations in the absence of appropriations, except

under certain circumstances.50 Some of these circumstances and related

exceptions to the Antideficiency Act likely would be relevant to ACA

implementation, in the event of a shutdown, allowing certain operations to

continue.

More information regarding these matters is addressed below.

(9) Are there alternative sources of funding to implement the ACA

in the absence of appropriated funds for FY2014?

Yes. As discussed in the answer to question 2, the ACA created a Health Insurance Reform

Implementation Fund (HIRIF), to which it appropriated $1 billion in mandatory funding. Both

CMS and the IRS have used these mandatory funds to cover the costs associated with the ACA’s

implementation. The Obama Administration’s FY2013 budget projected that all the HIRIF funds

would be obligated by the end of FY2012 and, thus, requested almost $1.4 billion in new

discretionary funding for CMS and the IRS to pay for ongoing implementation activities. Overall,

CMS estimated that it would spend about $1.5 billion on ACA implementation in FY2013,

primarily to establish the federally facilitated exchanges and related information technology (i.e.,

data services hub) and to conduct consumer outreach and education.51

Congress, however, did not provide any new discretionary funding for ACA implementation in

FY2013. In the absence of those funds, it was reported that HHS planned to use funds from the

following sources:52

•

approximately $235 million in unobligated HIRIF funds carried over from

FY2012;53

•

$454 million in mandatory funds from the PPHF;

•

$450 million in no-year funds from the nonrecurring expenses fund (NEF);54 and

•

approximately $116 million from the Secretary’s authority to transfer funds from

other HHS accounts.55

For more detailed discussion of the framework under which a shutdown would take place, see CRS Report RL34680,

Shutdown of the Federal Government: Causes, Processes, and Effects, coordinated by (name redacted).

John Reichard, “HHS Using Several Sources to Fund Federal Health Insurance Exchange,” CQ Roll Call, April 10,

2013.

Ibid.

HHS did not, in fact, obligate all the HIRIF funds by the end of FY2012 as was originally projected.

The nonrecurring expenses fund, within the Department of the Treasury, was established by Division G, Section 223

of the Consolidated Appropriations Act, 2008 (P.L. 110-161, 121 Stat. 1844). The HHS Secretary may transfer to the

fund unobligated balances of expired annual discretionary funds up to five years after the fiscal year in which those

funds were available for obligation. The amounts transferred to the fund are available until expended for use by HHS

for “capital acquisition necessary for operation of the Department, including facilities infrastructure and information

technology infrastructure ... ” Congressional appropriators must be notified at least 15 days in advance of any planned

use of funds.

Each year, the Labor-HHS-ED appropriations act gives the HHS Secretary authority to transfer funds between

appropriations accounts. No more than 1% of the funds in any given account may be transferred, and recipient accounts

may not be increased by more than 3%. Congressional appropriators must be notified at least 15 days in advance of any

(continued...)

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ACA and the Appropriations Process

The Administration’s FY2014 budget requested $1.4 billion in new discretionary funds for CMS

Program Management for ongoing ACA implementation activities, plus an additional $400

million in discretionary funds for the IRS to administer the ACA’s tax-related provisions,

including the premium tax credits.56 Both in the case of the current lapse in FY2014 discretionary

appropriations and in the event that Congress does not provide any new discretionary funding for

the ACA in the FY2014 appropriations acts, it appears that the agencies will continue to rely on

alternative sources of funding to support ACA implementation activities. Indeed, the HHS

contingency plan for operations in the absence of FY2014 appropriations states that “CMS would

continue large portions of ACA activities, including coordination between Medicaid and the

[exchanges].... ”57

Additionally, programs or activities that are supported by permanent appropriations provided in

the ACA would continue to have at least some funding available in the event of a funding lapse.

For example, the ACA amended the Internal Revenue Code (IRC) authorizing refundable tax

credits to subsidize the health insurance premiums for certain low-income taxpayers who enroll in

a health plan offered through a health insurance exchange established by a state.58 Like many

other tax credits, the monies used to fund such provisions are permanently appropriated outside of

the annual appropriations process.59 Therefore, the funds for such credits would continue to be

available via this permanent appropriation during a government shutdown caused by a lapse in

annual appropriations.

(10) In the absence of FY2014 appropriated funding, will some

ACA-related activities continue during a government shutdown? If

so, how will these decisions be made?

Various ACA-related activities will continue in the absence of annual appropriations. Some

background information helps explain why this is the case, but it is first necessary to identify

caveats when addressing this subject.

In the context of a prospective or actual lapse in appropriations and government shutdown,

several presidential administrations have interpreted the nature and scope of restrictions on

(...continued)

transfer. For more information about statutory transfer authorities, generally, see CRS Report R43098, Transfer and

Reprogramming of Appropriations: An Overview of Authorities, Limitations, and Procedures, by (name redact

ed).

U.S. Department of Health and Human Services, Budget in Brief, FY2014, at http://www.hhs.gov/budget/fy2014/fy2014-budget-in-brief.pdf; U.S. Department of the Treasury, Internal Revenue Service, Budget in Brief, FY2014, at

http://www.irs.gov/PUP/newsroom/FY%202014%20Budget%20in%20Brief.pdf.

Department of Health and Human Services, Fiscal Year 2014: Contingency Staffing Plan for Operations in the

Absence of Enacted Annual Appropriations, http://www.hhs.gov/budget/fy2014/fy2014contingency_staffing_planrev2.pdf. See page 2. The plan further states that “[s]everal HHS agencies have substantial mandatory, carryover, or

user fee funds which are not affected by a hiatus in annual appropriations, with CMS having the most mandatory funds,

including ... ACA Mandatory Program Management ... [and] the ACA Implementation Fund.... ” See page 6.

I.R.C. § 36B. Treasury regulations implementing this provision have stated that such credits will also be available in

those exchanges established by HHS on behalf of a state. Treas. Reg. § 1.36b-1(k). Some have questioned whether the

statute permits these credits with respect to coverage in federally facilitated exchanges. A full discussion of that issue is

beyond the scope of this report.

31 U.S.C. § 1324.

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ACA and the Appropriations Process

government activities during a shutdown and any related exceptions. These interpretations came

by way of legal opinions and guidance documents issued by former U.S. Attorney General

Benjamin R. Civiletti, the Department of Justice’s (DOJ’s) Office of Legal Counsel, and OMB. In

these documents, the administrations identified specific exceptions that govern federal agency

decisions regarding which operations may continue during a government shutdown under certain

circumstances. These exceptions arguably have been read broadly, resulting in a situation where

executive agencies may exercise some discretion. It is important to note that past views and

practice in the executive branch do not necessarily constrain or guide what may happen in the

current, or any future, funding lapse and shutdown. Consequently, CRS is not able to predict what

will happen for specific programs, agencies, or activities, in a shutdown. Nevertheless, analysis of

the operative legal framework, past events, and current agency-specific circumstances may help

illuminate the contours of what might happen in such a situation. In addition, agency

determinations of what activities will continue or not continue may change over the course of a

shutdown, particularly if it persists for an extended period. Consequently, agency shutdown plans

may be updated over time or be overtaken by events.

The Constitution, statutory provisions, court opinions, and DOJ opinions provide the legal

framework for how funding gaps and shutdowns have occurred in recent decades.60 Article I,

Section 9 of the Constitution states that “No Money shall be drawn from the Treasury, but in

Consequence of Appropriations made by Law.” Federal employees and contractors cannot be

paid, for example, if appropriations have not been enacted. Nevertheless, it would appear possible

under the Constitution for the government to make contracts or other obligations even if it lacked

funds to pay for these commitments.61 The Antideficiency Act generally prevents this, however.

The act prohibits federal officials from obligating funds before an appropriations measure has

been enacted, except as authorized by law.62 The act also prohibits acceptance of voluntary

services and employment of personal services exceeding what has been authorized by law.63

Therefore, the Antideficiency Act generally prohibits agencies from continued operation in the

absence of appropriations.

Two opinions in 1980 and 1981 from then-U.S. Attorney General Benjamin R. Civiletti and

another DOJ opinion from DOJ’s Office of Legal Counsel in 1995, generally have guided actions

in the executive branch in recent decades.64 The Attorney General’s opinions stated that, with

some exceptions, the head of an agency could avoid violating the Antideficiency Act only by

suspending the agency’s operations until the enactment of an appropriation. In the absence of

For more in-depth discussion, see CRS Report RL34680, Shutdown of the Federal Government: Causes, Processes,

and Effects, coordinated by (name redacted).

For discussion, see prepared statement of Walter Dellinger, Assistant Attorney General, in U.S. Congress, Senate

Committee on the Budget and House Committee on the Budget, Effects of Potential Government Shutdown, hearing,

104th Cong., 1st sess., September 19, 1995, S.Hrg. 104-175 (Washington: GPO, 1995), p. 18. Some commentators,

however, have expressed a contrary view. See Jim Schweiter and Herb Fenster, Government Contract Funding under

Continuing Resolutions, 95 Fed. Cont. Rep. 180, note 17 (February 15, 2011).

31 U.S.C. § 1341. The Antideficiency Act (31 U.S.C. §§ 1341-1342, §§ 1511-1519) is discussed in CRS Report

RL30795, General Management Laws: A Compendium, by (name redacted) et al., pp. 93-97. GAO provides

information on the act, at http://www.gao.gov/legal/lawresources/antideficiencybackground.html.

31 U.S.C. § 1342; see also §1515.

For discussion and citations, see CRS Report RL34680, Shutdown of the Federal Government: Causes, Processes,

and Effects, coordinated by (name redacted). The two Civiletti opinions are included in a GAO report as Appendices

IV and VIII. See GAO (then the General Accounting Office), Funding Gaps Jeopardize Federal Government

Operations, PAD-81-31, March 3, 1981, at http://www.gao.gov/assets/140/132616.pdf.

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ACA and the Appropriations Process

appropriations, exceptions would be allowed only when there is “some reasonable and articulable

connection between the function to be performed and the safety of human life or the protection of

property.” Apart from this broad category of “human life and property” exceptions to the

Antideficiency Act, the Civiletti opinions identified another broad category of exceptions: those

that are “authorized by law.” The Government Accountability Office (GAO) later summarized the

1981 Civiletti opinion as identifying four sub-types of “authorized by law” exceptions:65

•

Activities funded with appropriations of budget authority that do not expire at the

end of one fiscal year, such as multiple-year and no-year appropriations (that is,

when these multiple-year and no-year appropriations still have budget authority

available for obligation at the time of a funding gap).66

•

Activities authorized by statutes that expressly permit obligations in advance of

appropriations, such as contract authority.67

•

Activities “authorized by necessary implication from the specific terms of duties

that have been imposed on, or of authorities that have been invested in, the

agency.” The Civiletti opinion illustrated this concept by citing the situation

when benefit payments under an entitlement program are funded from otherthan-one-year appropriations (i.e., where benefit payments are not subject to a

funding gap, because they are authorized by permanent entitlement authority),68

but the salaries of personnel who administer the program are funded by one-year

appropriations (i.e., the salaries are subject to a funding gap). In this situation, the

Attorney General offered the view that continued availability of money for

benefit payments would necessarily imply that continued administration of the

program is authorized by law at some level and therefore excepted from the

Antideficiency Act.69

•

Obligations “necessarily incident to presidential initiatives undertaken within his

constitutional powers,” such as the power to grant pardons and reprieves.

The bulleted text here draws, in part, from GAO, Principles of Federal Appropriations Law, 3rd ed., vol. II, GAO-06382SP, February 2006, chapter 6, pp. 6-149 – 6-150. GAO also noted that the courts have added to the list of

exceptions to the Antideficiency Act in certain circumstances (ibid., p. 6-152). The 1980 Civiletti opinion also included

in the “authorized by law” exception an inference that federal officers may exercise authority to incur minimal

obligations necessary to closing their agencies in an orderly way.

As discussed in question 9, activities that have funds available to them, notwithstanding the lack of new discretionary

appropriations for that fiscal year, may continue to use those funds. In addition, agencies that receive most or all of

their budget authority for their day-to-day operations through means that are not dependent on appropriations acts, such

as the U.S. Postal Service and the Bureau of Consumer Financial Protection in the Federal Reserve System, would fall

under this exception.

For explanation of contract authority, see GAO, A Glossary of Terms Used in the Federal Budget Process, GAO-05734SP, September 2005, p. 21.

In such a case, budget authority is available to make payments as a result of previously enacted legislation and is

available without further legislative action. “Entitlement authority” refers to authority to make payments (including

loans and grants) for which budget authority is not provided in advance by appropriations acts to any person or

government if, under the provisions of the law containing such authority, the federal government is legally required to

make the payments to persons or governments that meet the requirements established by law. See ibid., pp. 22-23 and

47.

For an example of this exception in the context of two shutdowns during FY1996, see the section titled “Effects on

Mandatory Spending Programs,” in CRS Report RL34680, Shutdown of the Federal Government: Causes, Processes,

and Effects, coordinated by (name redacted).

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ACA and the Appropriations Process

In 1990, in response to the 1981 Civiletti opinion, Congress amended 31 U.S.C. §1342 to clarify

that “the term ‘emergencies involving the safety of human life or the protection of property’ does

not include ongoing, regular functions of government the suspension of which would not

imminently threaten the safety of human life or the protection of property.”70 DOJ’s Office of

Legal Counsel (OLC) issued a memorandum in 1995 that interpreted the effect of the amendment

(hereinafter, “1995 OLC opinion”).71 The 1995 OLC opinion noted that one aspect of the 1981

Civiletti opinion’s description of emergency governmental functions should be modified in light

of the amendment, but that the 1981 opinion otherwise “continues to be a sound analysis of the

legal authorities respecting government operations” during a funding gap.72 More recently, OMB

summarized its interpretation of exceptions to the Antideficiency Act in memoranda that were

issued to agencies in April and December 2011 (regarding FY2011 and FY2012 annual

appropriations, respectively), and September 2013 (regarding FY2014 annual appropriations).73

Pursuant to instructions from OMB, most executive branch agencies posted shutdown plans on

OMB’s website in April and December 2011, in anticipation of potential shutdowns related to

FY2011 and FY2012 funding.74 With regard to the plans, most agencies created both a Web page

describing shutdown procedures as well as distributable PDF documents. The resources covered

many topics, including discussion of excepted and non-excepted employees. Additional topics

included shutdown precedents, guidelines, furlough policies, and frequently asked questions.

Documents also addressed availability of government services, unemployment compensation for

federal employees, union concerns, and information about past shutdowns. On September 17,

2013, OMB directed agencies to update these plans and prepare for their potential release, in the

event that there would be a lapse in FY2014 annual appropriations.75

OMB has now posted the updated shutdown plans (also called contingency plans) on its

website.76 These plans may be modified and re-posted. Some press outlets have reported on the

contents of these plans and their potential implications for agency activities.77 As noted in the

answer to the question 9, HHS has substantial mandatory and other funds with which to continue

Ibid., p. 6-151, citing P.L. 101-508, 104 Stat. 1388, at 1388-621 (now codified at 31 U.S.C. §1342).

U.S. Department of Justice, Office of Legal Counsel, Government Operations in the Event of a Lapse in

Appropriations, memorandum from Walter Dellinger, Assistant Attorney General, for Alice Rivlin, Director, Office of

Management and Budget, August 16, 1995, reprinted in U.S. Congress, Senate Committee on the Budget and House

Committee on the Budget, Effects of Potential Government Shutdown, hearing, 104th Cong., 1st sess., September 19,

1995, S.Hrg. 104-175 (Washington: GPO, 1995), pp. 77-85.

Ibid., p. 78. In light of the intervening amendments, the 1995 OLC opinion required the safety of human life or the

protection of property to be compromised “in some significant degree” in order for a function to be considered

excepted.

OMB Memorandum M-11-13, Planning for Agency Operations During a Lapse in Government Funding, April 7,

2011, pp. 4-6; OMB Memorandum M-12-03, Planning for Agency Operations During a Lapse in Government

Funding, December 15, 2011, Attachment 1 (first three pages of non-paginated attachment); and OMB Memorandum

M-13-22, Planning for Agency Operations During a Potential Lapse in Appropriations, September 17, 2013, pp. 3-5.

The plans were posted online, at OMB, “Agency Contingency Plans,” at http://www.whitehouse.gov/omb/

contingency-plans.

OMB Memorandum M-13-22, Planning for Agency Operations During a Potential Lapse in Appropriations,

September 17, 2013, Attachment 1.

See http://www.whitehouse.gov/omb/contingency-plans.

See, for example, at WashingtonPost.com, “Impact of a Government Shutdown,” http://www.washingtonpost.com/

wp-srv/special/politics/2013-shutdown-federal-department-impact/; and “Government Shutdown: What’s Open,

What’s Closed,” http://www.washingtonpost.com/wp-srv/special/politics/whats-open-whats-closed/.

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ACA and the Appropriations Process

ACA implementation. In addition, other factors likely will contribute to continued ACA

implementation, including

•

ACA-related activities being related to mandatory spending programs, under the

“necessary implication” exception to the Antideficiency Act; and

•

ACA-related activities being related to safety of human life and protection of

property and the corresponding exception to the Antideficiency Act.

It should also be noted that a lapse in funding does not automatically result in the suspension of

applicable laws, including the filing and payment deadlines applicable to taxes created by the

ACA. While some tax enforcement and collection activities may be unavailable during a

government shutdown, those authorities would resume if funding is subsequently provided for the

IRS, and any outstanding tax liabilities accrued during that time period may be subject to

enforcement and collection at that time.

Additionally, as discussed above in the context of funding restrictions, some provisions of the

ACA may not rely exclusively upon the federal government, or the use of federal funds, to

operate. For example, the ACA imposed numerous new restrictions on health insurers, such as

prohibiting preexisting condition exclusions and requiring coverage of certain preventive services

without cost-sharing. While the federal government has a role in enforcing such provisions, these

requirements may also be enforced by state entities or via civil lawsuits brought by participants or

beneficiaries of a group health plan.78 Because these enforcement actions may not involve the

expenditure of federal funds, it is possible that provisions such as these would not be completely

impaired by a government shutdown. Furthermore, because a funding lapse is the result of

legislative inaction, a government shutdown could not have the effect of either explicitly or

implicitly repealing the underlying law as described above.

42 U.S.C. § 300gg-22; 29 U.S.C. § 1132.

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ACA and the Appropriations Process

Appendix A. Laws that Repeal or Amend Provisions

of the Affordable Care Act

Table A-1 summarizes the authorizing legislation enacted to date to amend the ACA. Each table

entry includes the public law number and date of enactment, the original bill number and sponsor,

and a brief description and explanation of the change(s) made to the ACA. The laws are listed in

chronological order beginning with the first measure signed into law following the enactment of

ACA and the accompanying package of amendments in HCERA.79 In compiling the table, CRS

made decisions about which laws—or specific provisions in a particular law—to include, and

which ones to leave out. Generally, CRS has included only those laws that amend, or make

changes that relate to, new programs and activities established under the ACA. CRS has excluded

laws that amend or extend established programs and activities that were subject to prior

amendment by the ACA. For example, the ACA extended multiple existing Medicare and

Medicaid program payments and activities that have since been further extended and/or modified

by more recently enacted laws. None of these laws are included in Table A-1.

Table A-2 summarizes the ACA-related provisions that have been included in enacted annual

appropriations acts for the past three fiscal years (i.e., FY2011-FY2013).

The following laws are referred to in the tables by their acronym:

•

Health Care and Education Reconciliation Act (HCERA; P.L. 111-152);

•

Internal Revenue Code (IRC);

•

Medicare Improvements for Patients and Providers Act (MIPPA; P.L. 110-275);

and

•

Social Security Act (SSA).

See footnote 1.

Congressional Research Service

Table A-1. Enacted Authorizing Legislation That Amends the ACA

Public Law

and Date of

Enactment

Bill (Sponsor)

Summary of Provisions

111th Congress

P.L. 111-159

Apr. 26, 2010

H.R. 4887 (Skelton)

TRICARE Affirmation Act. Amended IRC Section 5000A(f)(1)(A), as added by ACA Section 5101(b), to clarify that health

care provided under TRICARE, TRICARE for Life, and the Nonappropriated Fund Health Benefits program constitutes minimal

essential health care coverage as required by ACA. [Beginning in 2014, ACA requires most U.S. citizens and legal residents to

have minimal essential health care coverage or pay a penalty.]

P.L. 111-173

May 27, 2010

H.R. 5014 (Filner)

[No title.] Amended IRC Section 5000A(f)(1)(A), as added by ACA Section 5101(b), to clarify that health care provided by the

Department of Veterans Affairs constitutes minimal essential health care coverage as required by ACA. [Beginning in 2014, ACA

requires most U.S. citizens and legal residents to have minimal essential health care coverage or pay a penalty.]

P.L. 111-226

Aug. 10, 2010

H.R. 1586 (Rangel)

FAA Air Transportation Modernization and Safety Improvement Act. Among its many provisions, P.L. 111-226

amended SSA Section 1927(k)(1)(B)(i)(IV) (as added by ACA Section 2503(a)(2)(B), as amended by HCERA Section 1101(c)) by

modifying the definition of average manufacturer price (AMP) to include inhalation, infusion, implanted, or injectable drugs that

are not generally dispensed through a retail community pharmacy.

P.L. 111-309

Dec. 15, 2010

H.R. 4994 (Lewis)

Medicare and Medicaid Extenders Act of 2010. To help offset the costs of the Medicare and Medicaid program extensions

and the postponement of cuts in Medicare physician payments, P.L. 111-309 amended IRC Section 36B (as added by ACA Section

1401(a)) to modify the amount of excess premium tax credits that individuals would have to repay. The law created a sliding scale

for such repayments based on household income. [Under ACA, the amount received in premium credits is based on income as

reported on tax returns. These amounts are reconciled the following year, which could result in an overpayment of credits if

income increases. ACA placed limits on the amount of any premium credit overpayment that had to be repaid to the

government.]

P.L. 111-312

Dec. 17, 2010

H.R. 4853 (Oberstar)

Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010. Amended ACA Section 10909

to extend the nonrefundable adoption tax credit through tax year 2012. The adoption tax credit helps offset the cost of qualified

adoption expenses. [Subsequently, P.L. 112-240 made the nonrefundable adoption tax credit permanent.]

P.L. 111-383

Jan. 7, 2011

H.R. 6523 (Skelton)

Ike Skelton National Defense Authorization Act for Fiscal Year 2011. Extended TRICARE coverage to dependent adult

children up to age 26, to conform with the private health insurance requirements under ACA.

112th Congress

P.L. 112-9

Apr. 14, 2011

CRS-18

H.R. 4 (Lungren)

Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011.

Amended IRC Section 6041, as amended by ACA Section 9006, to repeal the requirement that businesses file an information

report (IRS Form 1099) whenever they pay a vendor more than $600 for goods in a single year. To pay for the 1099 repeal, P.L.

112-9 further amended IRC Section 36B, as added by ACA Section 1401(a), by modifying the amount of excess premium tax

credits that individuals would have to repay based on household income (see entry for P.L. 111-309, above).

Public Law

and Date of

Enactment

Bill (Sponsor)

Summary of Provisions

P.L. 112-56

Nov. 21, 2011

H.R. 674 (Herger)

3% Withholding Repeal and Job Creation Act. Among its many provisions, P.L. 112-56 amended IRC Section 36B, as added

by ACA section 1401(a) (as amended), by modifying the calculation of Modified Adjusted Gross Income (MAGI) to include Social

Security benefits. MAGI will be used to determine eligibility for health insurance exchange subsidies and Medicaid, beginning in

2014.

P.L. 112-96

Feb. 22, 2012

H.R. 3630 (Camp)

Middle Class Tax Relief and Job Creation Act of 2012. Among its many provisions, P.L. 112-96:

•

Amended ACA Section 4002 to reduce the Prevention and Public Health Fund (PPHF) annual appropriations over the period

FY2013-FY2021 by a total of $6.25 billion to help offset the cost of extending the payroll tax cut.

•

Amended SSA Section 1923(f) to extend by one year the disproportionate share hospital (DSH) allotment reduction

imposed by ACA Section 3203.

•

Amended SSA Section 1905(aa), as added by ACA Section 2006, to make a technical correction to the formula to phase

down the Medicaid disaster-recovery Federal Medical Assistance Percentage (FMAP) adjustment as originally intended. [The

purpose of the adjustment was to help Louisiana avoid a significant reduction in its federal Medicaid match (i.e., FMAP) in the

aftermath of Hurricane Katrina. As written in ACA Section 2006, the formula for the disaster-recovery FMAP adjustment

unintentionally caused the FMAP adjustment to increase, rather than phase down, each year the state qualifies for the

adjustment.]

P.L. 112-141

July 6, 2012

H.R. 4348 (Mica)

Moving Ahead for Progress in the 21st Century Act, or “MAP-21”. Among its many provisions, P.L. 112-141 further

modified the Medicaid disaster-recovery FMAP adjustment (see entry for P.L. 112-96, above) by changing the adjustment factor

and the effective date.

P.L. 112-240

Jan. 2, 2013

H.R. 8 (Camp)

American Taxpayer Relief Act of 2012. Among its many provisions, P.L. 112-240:

•

Amended MIPAA Section 119 to provide a total of $25 million for FY2013 for the four outreach and assistance programs,

which ACA Section 3306 funded through FY2012.

•

Amended SSA Section 501(c)(1)(A) to provide $5 million for FY2013 for the family-to-family information centers, which

ACA Section 5507(b) funded through FY2012.

•

Transferred 10% of the remaining unobligated Consumer Operated and Oriented Plan (CO-OP) program funds to a new

CO-OP contingency fund (to provide assistance and oversight to CO-OP loan recipients) and rescinded the other 90% of

those funds (see entries for P.L. 112-10 and P.L. 112-74, which predate this act, in Table 2 below).a

•

Repealed ACA Title VIII, the Community Living Assistance Services and Supports (CLASS) Act.

•

Repealed ACA’s appropriations for the National Clearinghouse for Long-Term Care Information and rescinded all

unobligated funds.

Source: Prepared by the Congressional Research Service based on the text of the public laws listed in the table.

CRS-19

P.L. 112-10 and P.L. 112-74 rescinded a total of $2.6 billion of ACA’s original $6 billion appropriation for the CO-OP program (see Table 2). At the time P.L. 112240 was enacted, according to HHS budget documents, the CO-OP program had an unobligated balance of $2.532 billion. P.L. 112-240 rescinded 90% of that

amount (i.e., $2.279 billion), and remaining funds (i.e., $253 million) were transferred to the contingency fund. In all, Congress has rescinded $4.879 billion of the $6

billion CO-OP program appropriation.

Table A-2. ACA-Related Provisions in Annual Appropriations Acts, FY2011-FY2013

Public Law

and Date of

Enactment

P.L. 112-10

Apr. 15, 2011

P.L. 112-74

Dec. 23, 2011

P.L. 113-6

Mar. 26, 2013

Bill (Sponsor)

H.R. 1473 (Rogers)

H.R. 2055 (Culberson)

H.R. 933 (Rogers)

Summary of Provisions

Department of Defense and Full-Year Continuing Appropriations Act, 2011. Division B, Title VIII of P.L. 112-10, which

provided full-year continuing FY2011 appropriations for Labor-HHS-Education, included the following ACA-related provisions:

•

Permanently canceled $2.2 billion of the $6 billion appropriation for the Consumer Operated and Oriented Plan (CO-OP)

program, which was established and funded by ACA Section 1322.

•

Repealed the free choice voucher program, established by ACA Section 10108, which would have required certain

employers to provide vouchers to qualified employees for purchasing coverage through a health insurance exchange.

•

Prohibited transfers from the Public Health and Social Services Emergency Fund to support the U.S. Public Health Sciences

Track, pursuant to ACA Section 5315.

•

Removed the maintenance of effort requirement for use of monies in the Community Health Center Fund (CHCF), which

was established and funded by ACA Section 10503 (as amended by HCERA Section 2303).

•

Mandated a Government Accountability Office (GAO) study of the costs and processes of ACA implementation, and a

Medicare actuarial analysis of the impact of ACA’s private insurance reforms on employer-sponsored health insurance

premiums.

Consolidated Appropriations Act, 2012. Division F of P.L. 112-74, which provided regular FY2012 appropriations for LaborHHS-Education, included the following ACA-related provisions:

•

Rescinded $400 million of the remaining $3.8 billion for the CO-OP program; see P.L. 112-10, above.

•

Rescinded $10 million of the $15 million FY2012 appropriation for the Independent Payment Advisory Board (IPAB), which

was authorized and funded by ACA Section 3403.

•

Instructed the Secretary of Health and Human Services to establish a website with detailed information on the allocation and

use of monies in the Prevention and Public Health Fund (PPHF), which was established and funded by ACA Section 4002.

•

Prohibited the use of PPHF funds for lobbying, publicity, or propaganda purposes.

Consolidated and Further Continuing Appropriations Act, 2013. Division F, Title V of P.L. 113-6, which provided fullyear continuing FY2013 appropriations for Labor-HHS-Education, included the following ACA-related provisions:

•

Rescinded $200 million of the $500 million transfer from the Medicare Part A and Part B trust funds for the 5-year

Community-Based Care Transition Program, which was established and funded by ACA Section 3026.

•

Rescinded $10 million of IPAB’s FY2013 appropriation.

Note that the PPHF website and the prohibition on using PPHF funds for lobbying, publicity, or propaganda purposes, which were

included in P.L. 112-74 (see above), remain in effect in FY2013 under P.L. 113-6.

Source: Prepared by the Congressional Research Service based on the text of the public laws listed in the table.

CRS-20

ACA and the Appropriations Process

Author Contact Information

(name redacted)

Specialist in Health Policy

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Analyst on Congress and the Legislative Process

[redacted]@crs.loc.gov, 7-....

(name redacted)

Specialist in Government Organization and

Management

[redacted]@crs.loc.gov, 7-....

Acknowledgments

(name redacted), Information Research Specialist,

helped compile the legislative information in Table A-1 and

Table A-2 in the appendix.

Congressional Research Service

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