ED Offers Shutdown Guidance as Spending Deadline Looms
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Unless Congress can pass another temporary appropriations bill (known as a “continuing resolution” or CR), the federal government will shut down at midnightFriday.  The impact of the shutdown would begin with the potential closure of national parks, including D.C.’s various monuments and memorials, over the weekend.  Congress, however, could still use this weekend to come to an agreement before federal agencies open Monday morning.  Funding for the Children’s Health Insurance Program (CHIP) and the status of Deferred Action for Childhood Arrivals (DACA) program have turned into stumbling blocks for lawmakers and the White House, though Republican leadership has been pushing legislation that would extend CHIP for 6 years in an effort to sweeten the deal for Democrats.


These negotiations have been rendered even more difficult by the fact that Senate Republicans have lost one seat with the election of Senator Doug Jones (D-AL) to fill the seat recently vacated by Jeff Sessions.  Congressional leadership has the difficult task of drafting legislation that will appeal to more conservative members in the House as well as to moderates in the Senate.  Meanwhile, Senate Democrats are hoping to leverage the need for Democratic votes in the Senate by pushing for inclusion of provisions which would revive DACA and let recipients stay in the country after the legislative program expires at the end of March.


The House of Representatives passed legislation on Thursday night to fund the federal government for another four weeks after a deal was reached with conservatives in the House Freedom Caucus.  This deal includes a six-year extension for the CHIP program, however it does not include an extension of DACA and only garnered a handful of Democratic votes.  The bill now heads to the Senate, where Democrats claim they have enough votes to block it, and even some Republican Senators say they will vote against the bill unless it funds the military for the rest of the fiscal year.


As Congress tries to come up with an appropriations bill it can pass, federal agencies are starting to discuss how the shutdown would impact their operations.  Secretary of Education Betsy DeVos sent a memo to U.S. Department of Education (ED) staff recently laying out her agency’s contingency plan.  In the event of a shutdown, DeVos writes, more than 90% of staff would be furloughed, at least in the first week.  Only “essential” employees, including high-ranking staff and those that administer federal student aid “as well as other authorized payments and obligations,” would still be permitted to work.


If a potential shutdown were to last longer than a week, DeVos says, it could significantly impact activity at ED.  That sort of longer-term shutdown could “curtail the cash flow to school districts, colleges, and universities and vocational rehabilitation agencies that depend on the Department’s funds to support their services,” DeVos writes.  Though she notes that much of this delay would come from the lack of staff making grant awards “later in the fiscal year,” she does not offer clear guidance as to whether existing federal funds would still be available for grantees to draw down.  A longer shutdown could also affect Impact Aid school districts, which must apply for 2018-2019 funding by January 31st.


During the last government shutdown in 2013, ED determined that the contractors who operated the G5 system had already been paid and thus could continue to approve draw-downs and otherwise keep the system operational.  DeVos’ letter indicates that the same standard will be used this time around in the event of a shutdown.


The letter does note that “programs with mandatory funding,” like Pell Grants and Federal Direct loans, “can make obligations and payments during a shutdown,” and that obligations and payments from programs with remaining balances from federal fiscal year 2017 “may continue, dependent on the length of the lapse.”  Only programs where a pause would cause “significant damage” would be allowed to continue after a lapse of one week.


ED’s shutdown guidance is available here.


Resources:Andrew Ujifusa, “Here’s Betsy DeVos’ Plan if There’s a Government Shutdown,” Education Week: Politics K-12, January 17, 2018.

Christina Marcos, “House Approves Spending Bill, Shifting Shutdown Drama to Senate,” The Hill, January 19, 2017.


Author: JCM

About the Author

Julia Martin is an attorney with the Washington, DC law firm of Brustein & Manasevit, PLLC. Established in 1980, the Firm is nationally recognized for its federal education regulatory and legislative practice, providing legal advice regarding compliance with all major federal education programs as well as the federal grants management requirements, including the Education Department General Administrative Regulations (EDGAR). In addition, they work with agencies on federal spending flexibility, allowability, policies and procedures, audit defense and resolution and legislative updates. The Firm provides government relations services for the National Title I Association.