President Biden's administration is working overtime to ensure that President Biden's health care priorities are protected from the possibility of a second Trump administration.
In recent weeks, regulators have been racing against the clock to finalize some of the most important policies, including abortion data privacy, anti-discrimination protections for transgender patients, and minimum staffing levels for nursing homes. There is.
At issue is the Congressional Review Act (CRA), a fast-track legislative tool that allows lawmakers to override rules even after the executive branch has finalized them. The CRA also prohibits agencies from pursuing “substantially similar” rules in the future unless Congress orders them to do so.
The rules could be protected if they are finalized before a “look back” period opens during the final 60 days of the 2024 session. However, due to the peculiarities of the parliamentary calendar, it is likely that no one will know when that will be until after Congress has adjourned for the year.
According to research from George Washington University, the condition often occurs from May to August, with July occurring most regularly.
Most of the key rules that regime supporters were concerned about were announced in April. Advocacy groups praised the White House for finalizing regulations it says will protect vulnerable people.
“The administration is moving forward with important work on health care, affordability, and access,” said Ben Anderson, deputy senior director of health policy at Families USA, a left-leaning consumer advocacy group. “If the rules are not finalized quickly enough on schedule, the whole thing is at risk of being rescinded by a future Congress.”
A resolution of disapproval is not subject to filibuster rules and requires only the consent of a simple majority of the House and Senate to pass. If the president signs the resolution, restrictions that would normally take months or years to go through the usual notice and comment period can be lifted in a matter of days.
If Donald Trump wins again and Republicans control Congress in 2025, the CRA could become a powerful tool to overturn Biden's White House policies.
“We don't know what's going to happen in November. So we don't know if we necessarily need to be thinking about legacy at this point. But what we're seeing is access to health care and affordability. “This is a really important step forward in protecting prices,” Anderson said.
The CRA was passed in 1996 and was part of then-Congressman Newt Gingrich's (R-Ga.) “Contract with America.” Republicans have used the system more often than Democrats, but before 2017 Congress had used it only once, to repeal a final rule.
“[CRA] It didn't attract as much attention as it does now. We were aware of that, but we weren't thinking about deadlines like we are now,” said Susan Dudley, former administrator of the Office of Information and Regulatory Affairs in the administration of President George W. Bush. said.
But during the Trump administration, Congress used the CRA to overturn 16 regulations issued in the final days of President Obama's term, including one regarding family planning subsidies.
That history probably led to competition between agencies.
Dudley, founder of the Center for Regulatory Studies at George Washington University, said more significant regulations were issued in April than in any month since 1981.
“What's different this year is there's so much more awareness, especially now that we know who the candidate is and we know he's used CRA before. So I think there's a lot more awareness of this deadline,” Dudley said.
Among the rules health care advocates have passionately sought are rules that would expand protections for people seeking abortions under HIPAA privacy regulations and protect LGBTQ patients from discrimination. Both were made public last week and could be targets of a future Trump administration.
Liz McCamman-Taylor, senior attorney at the National Health Law Program, said she was most looking forward to the abortion privacy rule. The rule would prevent health care providers and insurance companies from disclosing protected health information to state authorities in support of investigations, prosecutions, and litigation. sought or provided an abortion;
“This really aligns with the post-Dobbs era, where people are traveling for care, but with advancements in technology, my medical data can now travel with me,” McCamman said. Mr. Taylor said. “Your data can track you, but it can also come back to haunt you in situations where your provider is very afraid of the consequences.”
The anti-discrimination rule itself reinstated and expanded protections that were eliminated under the Trump administration's rules. So even if he can't overturn the rules with the CRA, there are still other avenues. Even a lawsuit filed in a conservative court could invalidate the rule, especially if a new administration takes office and decides not to defend policies with which it disagrees.
Dania Douglas, senior attorney for the National Health Law Program, said she is concerned that the administration may not be able to complete major rules in time for the CRA's “look back period,” especially given the uncertainty about when it will end. said.
But that wasn't the case.
“The Biden administration has done a lot of work on health equity…in the last two weeks, they've issued a tremendous number of rules that provide these really important protections,” Douglas said.
She specifically mentioned regulations strengthening anti-discrimination protections in health care for people with disabilities, which had not been updated in nearly 50 years.
“I think the Biden-Harris administration was very aware of this CRA deadline and worked hard to get these rules out in April, when they would hopefully be safe from the CRA lookback period,” Douglas said. said. .
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