Upcoming Rules Pursuant to the Patient Protection and Affordable Care Act: Spring 2011 Unified Agenda 
Released: 2011-08-18T00:00:00

Summary:
Congress delegates rulemaking authority to agencies for a variety of reasons and in a variety of ways. The Patient Protection and Affordable Care Act (PPACA; P.L. 111-148) is a particularly noteworthy example of congressional delegation of rulemaking authority to federal agencies. A previous CRS report identified more than 40 provisions in PPACA that require or permit the issuance of rules to implement the legislation.
One way for Congress to identify upcoming PPACA rules is by reviewing the Unified Agenda of Federal Regulatory and Deregulatory Actions, which is published twice each year (spring and fall) by the Regulatory Information Service Center (RISC), a component of the U.S. General Services Administration, for the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA). The Unified Agenda lists upcoming activities, by agency, in five separate categories or stages of the rulemaking process: the prerule stage, the proposed rule stage, the final rule stage, long-term actions, and completed actions. All entries in the Unified Agenda have uniform data elements, including the department and agency issuing the rule, the title of the rule, its Regulation Identifier Number (RIN), an abstract describing the nature of action being taken, and a timetable showing the dates of past actions and a projected date for the next regulatory action. Each entry also contains an element indicating the priority of the regulation (e.g., whether it is considered "economically significant" under Executive Order 12866, or whether it is considered a "major" rule under the Congressional Review Act).
This report examines the most recent edition of the Unified Agenda, published on July 7, 2011 (the second edition that RISC compiled and issued after the enactment of PPACA). The report identifies upcoming proposed and final rules listed in the July 7, 2011, Unified Agenda that are expected to be issued pursuant to PPACA. (A previous CRS report identified the rulemaking actions that were listed in the December 2010 version of the Unified Agenda.) The Appendix lists these upcoming proposed and final rules in a table. The report also briefly discusses the long-term actions listed in the Unified Agenda, as well as some options for congressional oversight over the PPACA rules.

subsections: section_title: Introduction
paragraphs: Federal regulations generally result from an act of Congress and are the means by which statutes are implemented and specific requirements are established. Congress delegates rulemaking authority to agencies for a variety of reasons and in a variety of ways. The Patient Protection and Affordable Care Act (PPACA; P.L. 111-148 , as amended) is a particularly noteworthy example of congressional delegation of rulemaking authority to federal agencies. PPACA is a comprehensive overhaul of the health care system that includes such provisions as the expansion of eligibility for Medicaid, amendments to Medicare that are intended to reduce its growth, an individual mandate for the purchase of health insurance, and the establishment of insurance exchanges through which individuals and families can receive federal subsidies to help them purchase insurance. A previous CRS report identified more than 40 provisions in PPACA that require or permit the issuance of rules to implement the legislation.
The rules that agencies issue pursuant to PPACA are expected to have a major impact on how the legislation is implemented. For example, in an article entitled "The War Isn't Over" that was posted on the New England Journal of Medicine's Health Care Reform Center shortly after PPACA was signed into law, Henry J. Aaron and Robert D. Reischauer wrote:
Making the legislation a success requires not only that it survive but also that it be effectively implemented. Although the bill runs to more than 2000 pages, much remains to be decided. The legislation tasks federal or state officials with writing regulations, making appointments, and giving precise meaning to many terms. Many of these actions will provoke controversy.... Far from having ended, the war to make health care reform an enduring success has just begun. Winning that war will require administrative determination and imagination and as much political resolve as was needed to pass the legislation.
subsections: section_title: Mandatory and Discretionary Rulemaking Provisions
paragraphs: The manner in which Congress delegates rulemaking authority to federal agencies determines the amount of discretion the agencies have in crafting the rules and, conversely, the amount of control that Congress retains for itself. Some of the more than 40 rulemaking provisions in PPACA are quite specific, stipulating the substance of the rules, whether certain consultative or rulemaking procedures should be used, and deadlines for their issuance or implementation. Other provisions in PPACA permit, but do not require, the agencies to issue certain rules (e.g., stating that the head of an agency "may issue regulations" defining certain terms, or "may by regulation" establish guidance or requirements for carrying out the legislation). As a result, the agency head has the discretion to decide whether to issue any regulations at all, and if so, what those rules will contain. Still other provisions in PPACA require agencies to establish programs or procedures but do not specifically mention regulations.
By December 2010, federal agencies had already issued at least 18 final rules implementing sections of PPACA. Although the legislation specifically required or permitted some of the rules to be published, other rules implemented PPACA provisions that did not specifically mention rulemaking. The use of rulemaking in these cases does not appear to be either improper or unusual; if the requirements in those rules were intended to be binding on the public, rulemaking may have been the agencies only viable option to implement the related statutory provisions.
section_title: Congressional Oversight and the Unified Agenda
paragraphs: In his book Building a Legislative-Centered Public Administration , David H. Rosenbloom noted that rulemaking and lawmaking are functionally equivalent (the results of both processes have the force of law), and that when agencies issue rules they, in effect, legislate. He went on to say that the "Constitution's grant of legislative power to Congress encompasses a responsibility to ensure that delegated authority is exercised according to appropriate procedures." Congressional oversight of rulemaking can deal with a variety of issues, including the substance of the rules issued pursuant to congressional delegations of authority and the process by which those rules are issued.
For Congress to oversee the regulations being issued to implement PPACA, it would help to have an early sense of what rules the agencies are going to issue, and when. The previously mentioned CRS report identifying the provisions in the act that require or permit rulemaking can be useful in this regard. However, the legislation did not indicate when some of the mandatory rules should be issued, some of the rules that the agencies are permitted (but not required) to issue may never be developed, and many of the rules that the agencies have already issued to implement PPACA were not specifically mentioned in the act.
subsections: section_title: The Unified Agenda
paragraphs: A potentially better way for Congress to identify upcoming PPACA rules is by reviewing the Unified Agenda of Federal Regulatory and Deregulatory Actions (hereafter, Unified Agenda), which is published twice each year (usually in the spring and fall) by the Regulatory Information Service Center (RISC), a component of the U.S. General Services Administration, for the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA). The Unified Agenda helps agencies fulfill two current transparency requirements: 
The Regulatory Flexibility Act (5 U.S.C. § 602) requires that all agencies publish semiannual regulatory agendas in the Federal Register describing regulatory actions that they are developing that may have a significant economic impact on a substantial number of small entities. Section 4 of Executive Order 12866 on "Regulatory Planning and Review" requires that all executive branch agencies "prepare an agenda of all regulations under development or review." The stated purposes of this and other planning requirements in the order are, among other things, to "maximize consultation and the resolution of potential conflicts at an early stage" and to "involve the public and its State, local, and tribal officials in regulatory planning." The executive order also requires that each agency prepare, as part of the fall edition of the Unified Agenda, a "regulatory plan" of the most important significant regulatory actions that the agency reasonably expects to issue in proposed or final form during the upcoming fiscal year.
The Unified Agenda lists upcoming activities, by agency, in five separate categories or stages of the rulemaking process: 
prerule stage (e.g., advance notices of proposed rulemaking that are expected to be issued in the next 12 months); proposed rule stage (i.e., notices of proposed rulemaking that are expected to be issued in the next 12 months, or for which the closing date of the comment period is the next step); final rule stage (i.e., final rules or other final actions that are expected to be issued in the next 12 months); long-term actions (i.e., items under development that agencies do not expect to take action on in the next 12 months); and completed actions (i.e., final rules or rules that have been withdrawn since the last edition of the Unified Agenda).
All entries in the Unified Agenda have uniform data elements, including the department and agency issuing the rule, the title of the rule, its Regulation Identifier Number (RIN), an abstract describing the nature of action being taken, and a timetable showing the dates of past actions and a projected date (sometimes just the projected month and year) for the next regulatory action. Each entry also contains an element indicating the priority of the regulation (e.g., whether it is considered "economically significant" under Executive Order 12866, or whether it is considered a "major" rule under the Congressional Review Act).
There is no penalty for issuing a rule without a prior notice in the Unified Agenda, and some prospective rules listed in the Unified Agenda never get issued, reflecting the fluid nature of the rulemaking process. Nevertheless, the Unified Agenda can help Congress and the public know what regulatory actions are about to occur, and it arguably provides federal agencies with the most systematic, government-wide method to alert the public about their upcoming proposed rules. A previously issued CRS report indicated that about three-fourths of the significant proposed rules published after having been reviewed by OIRA in 2008 were previously listed in the "proposed rule" section of the Unified Agenda.
section_title: This Report
paragraphs: The July 7, 2011, edition of the Unified Agenda and Regulatory Plan is the second edition that RISC has compiled and issued after the enactment of PPACA. Federal agencies were required to submit data to RISC for the Unified Agenda by February 25, 2011, but some items were subsequently updated during the OIRA review process. 
This report examines the July 7, 2011, edition of the Unified Agenda and identifies upcoming proposed and final rules and long-term actions that were expected to be issued pursuant to PPACA in the next 12 months. To identify those upcoming rules and actions, CRS searched all fields of the Unified Agenda (all agencies) using the term "Affordable Care Act," focusing on the proposed rule and final rule stages of rulemaking, and also including the "long-term actions" category.
The results of the search for proposed and final rules are provided in the Appendix to this report. For each upcoming proposed and final rule listed, the table identifies the department and agency expected to issue the rule, the title of the rule and its RIN, an abstract describing the nature of the rulemaking action, and the date that the proposed or final rule was expected to be issued. The abstracts presented in the table were taken verbatim from the Unified Agenda entries. Within the proposed and final rule sections of the table, the entries are organized by agency.
Because agencies were compiling the information early in the year, their estimates for when upcoming proposed and final rules would be issued may have been out of date by the time the Unified Agenda was published. To provide the most up-to-date information, on August 3, 2011, CRS electronically searched the Federal Register to see whether the proposed and final rules listed in the Unified Agenda had been published. This information is provided in the table. If the proposed or final rule was published as of August 3, the Federal Register citation is also provided. 
section_title: Upcoming PPACA Proposed Rules
paragraphs: The July 7, 2011, edition of the Unified Agenda listed 41 PPACA-related actions in the "proposed rule stage" (indicating that the agencies expected to issue proposed rules on the topics within the next 12 months, or for which the closing dates of the comment periods are the next step). Thirty-three of the 41 upcoming proposed rules were expected to be issued by components of the Department of Health and Human Services (HHS): the Health Resources and Services Administration (HRSA, four actions); the Food and Drug Administration (FDA, two actions); Indian Health Service (IHS, two actions); the Centers for Medicare and Medicaid Policy (CMS, 21 actions); the Administration on Aging (AOA, one action); and the Office of the Secretary (OS, three actions). Other proposed rules were expected to be issued by the Department of Labor's (DOL) Employee Benefits Security Administration (EBSA, one action); the DOL's Office of Workers' Compensation Programs (OWCP, one action); the Treasury Department's Departmental Offices (DO, one action); the Internal Revenue Service (IRS, two actions); and the Office of Personnel Management (OPM, three actions). 
subsections: section_title: Timing of the Proposed Rules
paragraphs: The agencies indicated that 17 of the 41 items in the "proposed rule" section of the Unified Agenda would be issued by the end of July 2011. As of August 3, 2011, 9 of these 17 anticipated notices of proposed rulemaking (NPRMs) had been published, and 8 had not yet been published. Some of the rules for which NPRMs have been published include 
an HHS/HRSA rule on "340B Orphan Drug Exclusion;" an HHS/FDA rule on "Food Labeling: Nutrition Labeling for Food Sold in Vending Machines;" an HHS/CMS rule on "Availability of Medicare Data for Performance Measurement;" and an HHS/CMS rule on "Establishment of the Consumer Operated and Oriented Plan Program." Some of the eight proposed rules that were expected to be published by the end of July 2011, but that had not been published as of August 3, 2011, include an HHS/HRSA rule on "Elimination of Duplication Between the Healthcare Integrity and Protection Data Bank and the National Practitioner Data Bank;" an HHS/CMS rule on "Administrative Simplification: Standard Unique Identifier for Health Plans;" an HHS/CMS rule on "Medicaid Eligibility Expansion Under the Affordable Care Act of 2010;" and a Treasury/IRS rule on "Development and Utilization of Uniform Explanation of Coverage Documents, Definitions, and Requirements To Provide Information Under the Patient Protection and Affordable Care Act."
Several other proposed rules were expected to be issued later in 2011, including 
an HHS/IHS rule on "Standards for the Planning, Design, Construction and Operation of Health Care and Sanitation Facilities" (expected to be published in December 2011); an HHS/CMS rule on "Implementing Regulations for Reauthorization of the Children's Health Insurance Program (CHIP)" (expected to be published in December 2011); an HHS/OS rule on "Nondiscrimination Under the Affordable Care Act" (expected to be published in September 2011); and an OPM rule on "Federal Employees Health Benefits Program; Disputed Claims and External Review Requirements" (expected to be published in September 2011).
section_title: Notable Proposed Rules
paragraphs: HHS agencies considered 4 of the 41 items in the "proposed rule" section of the Unified Agenda important enough to be included in the regulatory plan:
Two HHS/FDA rules on "Food Labeling: Nutrition Labeling for Food Sold in Vending Machines," which the agency published as an NPRM on April 6, 2011; and "Food Labeling: Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments," which the agency published as an NPRM on April 6, 2011; An HHS/CMS rule on "Medicare Shared Savings Program: Accountable Care Organizations," which the agency published as an NPRM on April 7, 2011; and An HHS/AOA rule on "Community Living Assistance Services and Supports (CLASS) Program—Designation of the CLASS Independence Benefit Plan and Enrollment Rules," which the agency expects to publish as an NPRM in October 2011. 
subsections: section_title: Economically Significant or Major Proposed Rules
paragraphs: In addition to the PPACA-related "proposed rule" actions that were listed in the regulatory plan, the Unified Agenda listed eight other actions that the agencies considered "economically significant" or "major" (one definition of "economically significant" or "major," for example, is that the rule is expected to have at least a $100 million annual effect on the economy). Examples include
an HHS/CMS rule on "Medicaid Eligibility Expansion Under the Affordable Care Act of 2010," which was expected to be published as an NPRM sometime during June 2011, but had not been published as of August 3, 2011; an HHS/CMS rule on "Requirements To Implement American Health Benefit Exchanges and Other Provisions of the Affordable Care Act," which was published as an NPRM on July 15, 2011; and an HHS/OCIIO rule on "Public Use Files of Health Plan Data," which is expected to be issued sometime during December 2011.
section_title: "Other Significant" Proposed Rules
paragraphs: In addition to the above-mentioned rules, the agencies characterized 27 of the 41 actions that were listed in the "proposed rule" section of the Unified Agenda as "other significant," indicating that although they were not listed in the regulatory plan or expected to be "economically significant," they were expected to be significant enough to be reviewed by OIRA under Executive Order 12866. These proposed rules included
an HHS/IHS rule on "Confidentiality of Medical Quality Assurance Records; Qualified Immunity for Participants," which the agency expects to publish in February 2012; an HHS/CMS rule on "Face-to-Face Requirements for Home Health Services; Policy Changes and Clarifications Related to Home Health," which the agency published on July 12, 2011; an HHS/AOA rule on "Community Living Assistance Services and Supports (CLASS) Program—Designation of the CLASS Independence Benefit Plan and Enrollment Rules," which the agency expects to issue in October 2011; and a DOL/OWCP rule on "Regulations Implementing Amendments to the Black Lung Benefits Act: Determining Coal Miners and Survivors Entitlement to Benefits," which the agency expects to issue in March 2012.
section_title: Effects on Small Entities
paragraphs: The Regulatory Flexibility Act (5 U.S.C. §§ 601-612) generally requires federal agencies to assess the impact of their forthcoming regulations on "small entities" (i.e., small businesses, small governments, and small not-for-profit organizations). Three of the previously-mentioned PPACA-related rules listed in the "proposed rule" section were expected to affect small businesses, small governments, or both, and were expected to require a regulatory flexibility analysis:
Two HHS/FDA rules on "Food Labeling: Nutrition Labeling for Food Sold in Vending Machines," and "Food Labeling: Nutrition Labeling of Standard Menu Items in Chain Restaurants;" and An HHS/CMS rule on "Medicaid Eligibility Expansion Under the Affordable Care Act of 2010."
In addition to these rules, eight other actions listed in the "proposed rule" section were expected to have an effect on small businesses, small governments, or small not-for-profits, but the agencies either did not expect to the rules to trigger the requirements of the Regulatory Flexibility Act, or were undecided as to whether they would do so. These actions included
an HHS/CMS rule on "Administrative Simplification: Standard Unique Identifier for Health Plans;" an HHS/CMS rule on "Durable Medical Equipment (DME) Face to Face Encounters and Written Orders Prior to Delivery;" and a DOL/EBSA rule on "Ex Parte Cease and Desist and Summary Seizure Orders Under ERISA Section 521."
section_title: Upcoming PPACA Final Rules
paragraphs: The July 7, 2011, edition of the Unified Agenda listed 13 PPACA-related actions in the "final rule stage" section (indicating that the agencies expected to issue final rules on the subjects within the next 12 months). Eight of the upcoming final rules were expected to be issued by CMS; two by the IRS; and one each by HRSA, the Occupational Safety and Health Administration (OSHA) within DOL, and the Social Security Administration.
subsections: section_title: Timing of Final Rules
paragraphs: The agencies indicated that 6 of the 13 items in the "final rule" section of the Unified Agenda would be issued by the end of July 2011. As of August 3, 2011, four of these rules had been issued: 
An HHS/CMS rule on "Administrative Simplification: Adoption of Authoring Organizations for Operating Rules and Adoption of Operating Rules for Eligibility and Claims Status;" which was published as an interim final rule on July 8, 2011; An HHS/CMS rule on "Payment Adjustment for Provider—Preventable Conditions Including Health Care-Acquired Conditions," which was published as a final rule on June 6, 2011; An HHS/CMS rule on "Enhanced Federal Funding for Medicaid Eligibility Determination and Enrollment Activities," which was published as a final rule on April 19, 2011; and An HHS/CMS rule on "Internal Claims, Appeals, and External Review Processes Under the Affordable Care Act," which was originally published as an interim final rule on July 23, 2010, followed by a second interim final rule on June 24, 2011. As of August 3, 2011, the remaining two final rules that the agencies indicated would be published by the end of July 2011 had not been published: An HHS/CMS rule on "Changes to the Demonstration Review and Approval Process," and An IRS rule on "Development and Utilization of Uniform Explanation of Coverage Documents, Definitions, and Requirements To Provide Information Under the Patient Protection and Affordable Care Act."
The agencies indicated that six other final rules would be published sometime in 2011:
An HHS/HRSA rule on "Designation of Medically Underserved Populations and Health Professional Shortage Areas," which was expected to be issued in November 2011; An HHS/CMS rule on "Administrative Simplification: Adoption of Standard and Operating Rule for Electronic Funds Transfer (EFT) and Operating Rule for Remittance Advice," which was expected to be issued in December 2011; An HHS/CMS rule on "Medicaid Recovery Audit Contractors," which was expected to be issued in August 2011; An HHS/CMS rule on "Community First Choice Option," which was expected to be issued in August 2011; A DOL/OSHA rule on "Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act," which was expected to be issued in September 2011; and An IRS rule on "Indoor Tanning Services," which was expected to be issued in December 2011.
section_title: Notable Final Rules
paragraphs: None of the rules that were listed in the "final rule" section of the Unified Agenda were considered important enough to be included in the agencies' regulatory plans. 
subsections: section_title: Economically Significant or Major Final Rules
paragraphs: The Unified Agenda listed three entries in the "final rule" section that were considered "economically significant" or "major" (e.g., that were expected to have at least a $100 million annual effect on the economy). All three rules were CMS rules: (1) "Medicaid Recovery Audit Contractors;" (2) "Community First Choice Option;" and (3) "Enhanced Federal Funding for Medicaid Eligibility Determination and Enrollment Activities."
section_title: "Other Significant" Final Rules
paragraphs: In addition to the above-mentioned rules, eight other entries in the "final rule" section of the Unified Agenda were characterized as "other significant," indicating that although they were not listed in the regulatory plan or expected to be "economically significant," they were expected to be significant enough to be reviewed by OIRA under Executive Order 12866. These final rules included
an HHS/HRSA rule on "Designation of Medically Underserved Populations and Health Professional Shortage Areas;" an HHS/CMS rule on "Administrative Simplification: Adoption of Standard and Operating Rule for Electronic Funds Transfer (EFT) and Operating Rule for Remittance Advice;" a DOL/OSHA rule on "Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act of 2010;" and a Social Security Administration rule on "Regulations Regarding Income-Related Monthly Adjustment Amounts to Medicare Beneficiaries' Prescription Drug Premiums."
section_title: Effects on Small Entities
paragraphs: Two of the upcoming final rules were expected to trigger the requirements of the Regulatory Flexibility Act because of their effects on small businesses: the CMS rule on "Enhanced Federal Funding for Medicaid Eligibility Determination and Enrollment Activities," and the IRS rule on "Indoor Tanning Services."
Three other CMS rules were expected to have an effect on small businesses, governments, or other organizations, but were not expected to require a regulatory flexibility analysis: (1) "Administrative Simplification: Adoption of Standard and Operating Rule for Electronic Funds Transfer (EFT) and Operating Rule for Remittance Advice;" (2) "Administrative Simplification: Adoption of Authoring Organizations for Operating Rules and Adoption of Operating Rules for Eligibility and Claims Status;" and (3) "Medicaid Recovery Audit Contractors."
section_title: PPACA Long-Term Actions
paragraphs: As noted earlier in this report, the Unified Agenda also identifies "long-term actions"—that is, regulatory actions that are under development in the agencies that the agencies do not expect to take action on in the next 12 months. The July 7, 2011 edition of the Unified Agenda listed 27 long-term actions related to PPACA. In comparison with the proposed and final rules previously discussed, it is much less clear when the PPACA-related long-term actions are expected to occur; in 17 of the 27 cases, the agencies said that the dates for the actions were "to be determined." Of the remaining ten long-term actions, six were expected in June 2012, one in August 2012, one in calendar year 2013, and two in calendar year 2014. 
subsections: section_title: Nature of the Long-Term Actions
paragraphs: Of the 27 long-term actions, 15 were upcoming final rules that were expected to be issued once the agency had considered the comments received in response to previously issued interim final rules. These actions included
an HHS/CMS rule on "Requirements for Long-Term Care Facilities: Notification of Facility Closure;" with the final rule expected to be published in February 2014;" and a DOL/EBSA rule on "Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions and Patient Protections Under the Affordable Care Act," with the date of the final rule "to be determined." The eight other long-term actions were upcoming final rules that the agency expected to issue after considering the comments received in response to a previously issued notice of proposed rulemaking. These actions included an HHS/CMS rule on "Affordable Care Act Waiver for State Innovation; Review and Approval Process;" and an IRS rule on "Requirements Applicable to Group Health Plans and Health Insurance Issuers Under the Patient Protection and Affordable Care Act, I."
The four other PPACA-related long-term actions included
an HHS/CMS NPRM on "Long-Term Care Facility Quality Assessment and Performance Improvement Dementia Management and Abuse Prevention Training," and a DOL/EBSA unspecified rulemaking action on "Automatic Enrollment in Health Plans of Employees of Large Employers Under FLSA Section 18A ;"
section_title: Notable Long-Term Actions
paragraphs: The agencies identified 10 of the 27 PPACA-related long-term actions as "economically significant," "major," or both. Nine of these actions were cases in which the agencies had issued interim final rules and were reviewing the comments received. These included two HHS/CMS actions on such topics as "Preexisting Condition Exclusions, Lifetime and Annual Limits, Prohibition on Discrimination and Patient Protections;" "Preventive Services Under the Affordable Care Act;" "Affordable Care Act Waiver for State Innovation; Review and Approval Process;" and a DOL/EBSA action entitled "Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act." One other long-term action that was identified as major was a CMS rule on "Affordable Care Act Waiver for State Innovation; Review and Approval Process." The agency published an NPRM on March 14 and will be taking final action at a later date "to be determined." The agencies considered 12 of the 27 actions to be "other significant," meaning that the agencies considered them significant enough to be reviewed by OIRA under Executive Order 12866, but not "economically significant." These actions included an HHS/IHS rule on "Catastrophic Health Emergency Fund (CHEF);" two HHS/CMS actions entitled "Health Care Reform Insurance Web Portal Requirements" and "Student Health Insurance Coverage;" and a DOL/EBSA action on "Automatic Enrollment in Health Plans of Employees of Large Employers Under FLSA Section 18A."
section_title: Congressional Oversight Options
paragraphs: As noted earlier in this report, when federal agencies issue substantive regulations, they are carrying out legislative authority delegated to them by Congress. Therefore, it is appropriate for Congress to oversee the rules that agencies issue to ensure that they are consistent with congressional intent and the rulemaking requirements established in various statutes and executive orders. For Congress to oversee the rules being issued pursuant to PPACA, it must first know that they are being issued—ideally as early as possible. The Unified Agenda is perhaps the best vehicle to provide that early information, describing not only what rules are expected to be issued, but also providing information regarding their significance and timing.
Congress has a range of tools available to oversee the rules that federal agencies are expected to issue to implement PPACA, including oversight hearings and confirmation hearings for the heads of regulatory agencies. Individual Members of Congress may also participate in the rulemaking process by, among other things, meeting with agency officials and filing public comments. Congress, committees, and individual Members can also request that the Government Accountability Office (GAO) evaluate the agencies' rulemaking activities.
Another option is the Congressional Review Act (CRA; 5 U.S.C. §§801-808), which was enacted in 1996 to establish procedures detailing congressional authority over rulemaking "without at the same time requiring Congress to become a super regulatory agency." The act generally requires federal agencies to submit all of their covered final rules to both houses of Congress and GAO before they can take effect. It also established expedited legislative procedures (primarily in the Senate) by which Congress may disapprove agencies' final rules by enacting a joint resolution of disapproval. The definition of a covered rule in the CRA is quite broad, arguably including any type of document (e.g., legislative rules, policy statements, guidance, manuals, and memoranda) that the agency wishes to make binding on the affected public. After these rules are submitted, Congress can use the expedited procedures specified in the CRA to disapprove any of the rules. CRA resolutions of disapproval must be presented to the President for signature or veto.
For a variety of reasons, however, the CRA has been used to disapprove only one rule in the 14 years since it was enacted. Perhaps most notably, it is likely that a President would veto a resolution of disapproval to protect rules developed under his own administration, and it may be difficult for Congress to muster the two-thirds vote in both houses needed to overturn the veto. Congress can also use regular (i.e., non-CRA) legislative procedures to disapprove agencies' rules, but such legislation may prove even more difficult to enact than a CRA resolution of disapproval (primarily because of the lack of expedited procedures in the Senate), and if enacted may also be vetoed by the President.
Although the CRA has been used only once to overturn an agency rule, Congress has regularly included provisions in the text of agencies' appropriations bills directing or preventing the development of particular regulations. Such provisions include prohibitions on the finalization of particular proposed rules, restrictions on certain types of regulatory activity, and restrictions on implementation or enforcement of certain provisions. Appropriations provisions can also be used to prompt agencies to issue certain regulations, or to require that certain procedures be followed before or after their issuance. The inclusion of regulatory provisions in appropriations legislation as a matter of legislative strategy appears to arise from two factors: (1) Congress's ability via its "power of the purse" to control agency action, and (2) the fact that appropriations bills are considered "must pass" legislation. Congress's use of regulatory appropriations restrictions has fluctuated somewhat over time, and previous experience suggests such use they may be somewhat less frequent when Congress and the President are of the same party.
subsections: section_title: Appendix. Upcoming Proposed and Final Rules Pursuant to the Patient Protection and Affordable Care Act