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THE SECRETARY OF EDUCATION

WASHINGTON, DC 20202

March 22, 2024

MEMORANDUM

TO: Office of Management and Budget (OMB)

FROM: Miguel A. Cardona

SUBJECT: U.S. Department of Education Contingency Plan for Lapse 

in Fiscal Year (FY) 2024 Appropriations

The contingency plan for the U.S Department of Education (the Department) was developed pursuant to 

applicable legal requirements governing a lapse in Federal appropriations. In the event of an interruption 

or absence of an appropriation (lapse) or continuing resolution, the Department will perform work that is 

“exempt” from furlough because it is funded by unexpired budget authority that does not require further 

congressional action pursuant to an annual appropriations Act. Such budget authority for “exempt” 

activities may include: appropriations provided in permanent law; advance appropriations provided in 

prior-year appropriations Acts; and balances from multi-year or no-year appropriations. The Department 

may also continue certain unfunded activities during a lapse in annual appropriations if such activities fall 

under an “exception” to the Antideficiency Act. These exceptions permit the following “excepted” 

activities to continue during a lapse in appropriations:

(1) Activities that discharge of the President’s constitutional duties and powers;

(2) Activities expressly authorized by law to continue in the absence of appropriations;

(3) Activities necessary to protect life or property; and 

(4) Activities necessarily implied by law, including those required to continue otherwise funded or 

authorized activities.

As set forth in this plan, the Department would furlough approximately 90 percent of its total staff for the 

first week of such a lapse in funding. During this first week, we would maintain only those staff needed 

to perform exempt or excepted functions.

If the lapse lasts longer than a week, the Director of Budget Service, within the Office of Planning, 

Evaluation and Policy Development, would be responsible for adjusting the plan to respond to the length 

of the lapse in appropriations and changes in external circumstances. The Assistant Secretary for Finance 

and Operations would be responsible for implementing the adjusted plan. The Department would phase 

in employees only as necessary under one of the exceptions to the Antideficiency Act, including to 

support and prevent significant damage to the underlying exempt or excepted activity. Some employees 

would be called in on a partial or rotating basis; the combined number of excepted employees working at 

any given time is not expected to exceed approximately 10 percent (419 FTEs) of the Department’s total 

full-time equivalents (FTEs). As of March 15, 2024, the Department employed 4,176 full- and part-time 

employees.
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This contingency plan for the Department, like the 1996, 2011, 2013, 2016, 2017, 2018, 2019, 2020, 2021 

and 2022 plans, would authorize certain categories of employees (“excepted employees”) to work in the 

absence of a specific appropriation.

1. Necessary to Ensure an Orderly Shutdown

Immediately upon receiving notification of a lapse in appropriations, the Department would direct 

employees to be entirely devoted to “closing down” their individual and group work functions. The 

Department would ensure that employees’ orderly shutdown activities would be completed within a 

relatively short period (no more than 4 hours for most employees). The non-excepted employees would 

then be released on furlough. Examples of shutdown activities include:

• Performing payroll functions and processing travel vouchers for the period just prior to the 

appropriations lapse;

• Completing inventories of property;

• Securing Federal property;

• Performing personnel functions to process furlough notices;

• Setting up consistent voicemail and email out-of-office messages;

• Notifying grantees of any impact on the disbursement of funds; and

• Notifying contractors as to whether they will be required to stop work.

2. Authorized by Law

Each of the Department’s confirmed Presidential appointees subject to Senate confirmation (PAS) would 

not be subject to the furlough. One FTE for each PAS would be excepted from the furlough in order to 

perform—and support the PAS in carrying out—excepted or exempt activities at the PAS’s direction that 

arise during the shutdown. These FTEs would only perform excepted or exempt activities where 

suspension of the related activity during the funding lapse would prevent or significantly damage the 

execution of the funded function. The total number of FTEs excepted for this purpose is shown in the 

chart, “Lapse Plan Summary Overview,” at the end of this document. Individuals who are delegated the 

authority to perform the functions and duties of a PAS employee are excluded.

3. Necessary to Protect Life or Property

The Department engages in certain regular, ongoing functions, the suspension of which would pose a 

threat to property. These activities are coordinated by applicable offices, including the Office of Finance 

and Operations, the Office of the Chief Information Officer, the Office of the Secretary, and the Office of 

Federal Student Aid, and involve 90 excepted employees. The Office of Inspector General (OIG) would 

also except personnel to engage in law enforcement functions, the suspension of which would pose a 

threat to the protection of property and resources, affect ongoing criminal investigations, and impede the 

execution of search warrants and arrests. Eleven OIG employees in this category are excepted and would 

report to duty on an as-needed basis and only to meet critical needs as approved by OIG. The total 

number of FTEs excepted for this purpose is shown in the chart, “Lapse Plan Summary Overview.”

4. Funded from an Alternative Source

Programs using mandatory or advance appropriations, or unobligated multi-year or no-year funds from a 

prior year (carryover) would continue to operate through a government shutdown. For these programs, 

staff may be brought in on an excepted basis, as necessarily implied by law, to execute the following 

exempt or excepted activities:
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A. Grant and Loan Programs

Programs with mandatory funding can make obligations and payments during a shutdown. In addition, 

approximately 17 non-mandatory programs have advance funds appropriated in FY 2023 that have

become available in FY 2024 and/or have authority to carry over and use remaining unexpired, 

unobligated balances from FY 2023 multi-year or no-year discretionary appropriations. Obligations and 

payments from these programs may continue, depending on the length of the lapse and availability of 

funds. Only those grant activities that, if not continued, would prevent or significantly damage the 

execution of funded functions (the “significant damage” standard) will continue on a limited basis after a 

lapse of one week and continue through a short-term shutdown. Examples of significant damage could be 

disruption of local educational agency operations or inability of students to obtain necessary higher 

education financing.

For exempt and excepted programs such as these, employees performing work that satisfies one of the 

exceptions to the Antideficiency Act may be brought in to work as “excepted employees” to provide 

payments and fulfill obligations to grantees and other recipients. The number of excepted staff

necessarily implied by law will vary depending on the length of the shutdown and amount of money and 

number of recipients involved. These numbers include employees in the program and support areas. In 

each case, only the minimum number of employees needed would be brought in to work. The chart at the 

end of this document specifies the number of excepted FTEs necessary in week one and the maximum 

number needed for weeks two through four for these activities. It is assumed that the G5 system for 

making payments to grantees—either grants awarded in prior years or those made with mandatory or 

carryover appropriations—would continue to operate at least for the first week. For a lapse of more than a 

week, Department staff would be needed as excepted employees to resolve any issues necessary to 

prevent significant damage to the underlying exempt or excepted activity.

Non-mandatory programs that do not have available unobligated balances from FY 2023 may not incur 

new obligations while under a government shutdown caused by a lapse in appropriations unless otherwise 

allowable under an exception.

B. Direct Loans and Pell Grants

A lapse in appropriations could fall at a critical point in the administration of the large student aid 

programs. Program funds for Pell Grants and Direct Student Loans are provided through mandatory and 

carryover appropriations. More than 9.8 million students receive student aid, in the form of grants and 

loans, at approximately 5,500 schools through these programs. As available, permanent and multi-year 

appropriations may be used to continue some key operations (such as processing Free Applications for 

Federal Student Aid, FAFSA®; disbursing Pell Grants and Federal Direct Student Loans; and servicing 

Federal student loans) for a limited time; these operations could also experience some level of disruption 

due to a lapse.

The Office of Federal Student Aid’s (FSA’s) Chief Operating Officer and other management officials

across the Department responsible for Pell Grants and Direct Student Loans will designate the contracts 

and minimum number of employees and contractors necessary to keep these programs operational and to 

comply with the requirements of the FAFSA Simplification Act. These could include contracts and 

employees needed to obligate and process payments, maintain systems necessary to disburse Pell Grants 

and student loan payments, service loans, and provide legal counsel to FSA and other offices. FSA 

employees working in areas not directly related to Pell Grants or Direct Student Loans, administrative 

functions not related to providing student aid to schools and students or servicing loans, would not be

excepted.
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C. Bipartisan Safer Communities Act and Administration

Programs and activities authorized and funded through the Bipartisan Safer Communities Supplemental 

Appropriations Act, 2022 (Division B of P.L. 117-159) have authority to continue obligations and 

payments in FY 2024, including for program administration related to the mental health programs funded

under the Safe Schools and Citizenship Education account. 

Effect of Shutdown Caused by a Lapse in Appropriations 

A protracted delay in Department obligations and payments beyond one week would severely curtail the 

cash flow to school districts, colleges and universities, vocational rehabilitation agencies, and other 

entities that depend on the Department’s discretionary funds to support their services. For example, 

roughly 1 in 10 school districts receive more than 15 percent of their funds from Federally funded 

programs. Colleges rely on Department funds to pay ongoing expenses of staff running programs for 

disadvantaged students seeking to enter and stay in college. Vocational rehabilitation agencies receive 

more than 70 percent of the cost of providing services to adults and youth with disabilities from the 

Department’s program.

Under a shutdown, the potential disruption to Department grant programs would be a delay in activities 

necessary to make competitive and formula grant awards later in the fiscal year. For the most part, the 

employees who do this work will be furloughed. In addition, grantees and the public seeking specific 

information regarding the impact of a shutdown will have limited access to information.

Some contractors could continue to work under a lapse in appropriations for some short period of time. 

However, during an interruption, no new contracts would be awarded unless they were significantly 

related to excepted activities. Contractors receiving recently awarded contracts may be ordered to stop 

work during the furlough, if doing so would not cause significant damage to that activity. Department 

staff who are furloughed may be unfurloughed as necessarily implied by law to the extent the staff are 

needed to provide initial direction to these contractors. Those contractors allowed to continue their work 

would not immediately receive payment for their services, but the Department would be obligated to 

make payment, along with any Prompt Payment Act interest to compensate for the delay, once funds were 

available.

The chart below is illustrative and is based on our current thinking of what would happen if an 

interruption were to occur on March 23, 2024. Staffing levels reflect the first week of a lapse in 

appropriations. 

The Department will phase in employees as necessary when one of the exceptions to the Antideficiency 

Act is met for such employees’ activity or function. 

If the lapse lasts more than one week, the total number of employees working at some point during the 

shutdown would be approximately 419 FTE; approximately 3,757 employees would be furloughed. The 

FTE and employee numbers in this plan reflect levels as of March 15, 2024. 

Actions Necessary to Resume Orderly Operations

When directing employees to “close down” their individual and group work functions, the Department 

will provide information to employees to monitor the status of appropriations. This information will 

include links to OMB websites that will provide updates on the status of agency appropriations. 

Employees will also be informed that they will be expected to return to work the workday following 

resolution of conditions that led to the shutdown. After resumption of orderly operations, supervisors will 
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be informed of their ability to offer leave flexibility to employees who may not have returned to work as 

scheduled due to extenuating circumstances.

Lapse Plan Summary Overview

Department of 

Education

Office of Federal 

Student Aid only

Estimated time (to nearest half day) needed to complete shutdown 

activities: 0.5 days 0.5 days 

Total number of agency employees expected to be on board before 

implementation of the plan: 4,176 1,414 

Total number of employees to be retained under the plan for each of the following categories:

Compensation is financed by a resource other than annual 

appropriations: 13 0 

Necessary to perform activities expressly authorized by law: 14 0 

Necessary to perform activities necessarily implied by law: 291 184 

Necessary to the discharge of the President’s constitutional duties and

powers: 

0 0 

Necessary to protect life and property: 101 59 

Brief summary of significant agency activities that will continue during a lapse:

Programs with mandatory funding can make obligations and payments during a shutdown. Examples of 

such programs include Pell Grants and Federal Direct Student Loans. Approximately 17 non-mandatory 

programs have advance funds appropriated in FY 2023 that became available in FY 2024 and/or 

remaining unexpired, unobligated balances from FY 2023 multi-year or no-year discretionary 

appropriations. Obligations and payments from these programs may continue, depending on the length of 

the lapse and availability of funds. Only those grant activities that, if not continued, would prevent or 

significantly damage the execution of funded functions (the “necessary implication” standard) will 

continue on a limited basis after a lapse of one week and continue through a short-term shutdown. 

Brief summary of significant agency activities that will cease during a lapse:

During a lapse, the Department would pause most of its grantmaking activities, including the 

development of grant announcements, review of grant applications, and awarding of grant funds. The 

Office for Civil Rights would also pause its review and investigations of civil rights complaints. The 

Department’s development and implementation of guidance, technical assistance, and regulatory actions 

would also pause during a lapse, unless required for otherwise funded activities.