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From Products Liability Law Daily, October 1, 2013

Standoff on “Obamacare” shutters federal government, reducing operations by product safety agencies

By Georgia D. Koutouzos, J.D. and Joseph Bichl

The federal government is in sleep mode today, as the funding necessary to keep all but essential services ran out following Congress’ failure to pass a continuing budget resolution due to political intractability concerning the viability of the Patient Protection and Affordable Care Act (PPACA) [Pub. L. No. 111-148]. The government shut-down occurred at 12:01 a.m. on Tuesday morning, but not before the Republican-led U.S. House of Representatives had taken one more swipe at rolling back “Obamacare” (the 44th since the health care reform law’s enactment, for those keeping count).

CPSC operations. During the government shutdown, CPSC will continue limited activities as they are related to protection against imminent threats to human safety and to protect government property. There will be no new recalls, regulatory activity, or legal proceedings unless these actions are required to protect the safety of human life or protect government property. CPSC will be updating its website only with information about imminent risks during the shutdown. Furloughed CPSC employees will remain on call during the shutdown in the event that an emergency arises. CPSC employees who will remain on duty include those employees necessary to:

  • work with manufacturers, distributors, and retailers to recall as quickly as practicable products that create an immediate threat to the safety of human life;
  • disseminate information to the public about products that create an immediate threat to the safety of human life;
  • coordinate and monitor recalls of products that create a substantial and immediate threat to the safety of human life; and
  • file an action in a United States district court with respect to products that create a substantial and immediate threat to the safety of human life.

NHTSA operations. During the government shutdown, NHTSA indicated that its online content updates will not be posted on a regular basis, and the processing of online transactions may be delayed. In addition, no new recalls will be posted during the shutdown and safety defect complaints will not be evaluated by NHTSA staff until funding and services are restored. However, the agency’s searchable recall and defect databases will continue to be operable by consumers looking for information that was posted on or before September 30, 2013. Regulatory activities and legal proceedings instituted by the agency will be limited during the shutdown to emergency situations.

Seemingly undaunted after the U.S. Senate had voted 54-46 on Monday afternoon to reject amendments to the Continuing Appropriations Resolution, 2014 (H.J. Res. 59) that would have kept the government in business but contingent upon a one-year delay in the 2010 health care reform law’s implementation and a repeal of the law’s medical device tax provision, the House on Monday evening approved by a vote of 228-201 yet another version of the funding measure—this one conditioned on a one-year delay of the PPACA’s so-called “individual mandate” and the elimination of federal subsidies for congressional staff to purchase coverage on the Act-created health insurance marketplace.

Less than an hour later and as promised earlier in the day by Senate Majority Leader Harry Reid (D-Nev.), the Senate disposed of the House’s 11th-hour measure by another vote of 54-46. Midnight came and went, after which the House approved a resolution at 1:15 a.m., Eastern Time, insisting on its latest amendments and requesting a joint conference, but the Senate refused to confer over anything but a “clean” bill devoid of any anti-“Obamacare” language and voted to table further consideration of H.J. Res. 59 at 9:33 a.m., ET.

Ironically, although the national parks and monuments now have been cordoned off and are turning away visitors, neither the congressional standoff nor the government shut-down have affected today’s start-date for enrollment in the health insurance marketplace that is the centerpiece of the Affordable Care Act. Although many federal agency websites now carry a banner warning that the information therein may not be updated until government operations have resumed, because PPACA’s implementation is not tied to the federal budget, the health care reform site, www.healthcare.gov, is up and running, if not slowed at times by the volume of users trying to access the site and enroll.

MainStory: TopStory CPSCNewsStory NHTSANewsStory

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