Upcoming Rules Pursuant to the Patient Protection and Affordable Care Act: Fall 2011 Unified Agenda 
Released: 2012-03-20T00:00:00

Introduction

Federal regulations generally result from an act of Congress and are one significant 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 (ACA, as amended) is a particularly noteworthy example of congressional delegation of rulemaking authority to federal agencies. ACA 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 ACA that explicitly require or permit the issuance of rules to implement the legislation.

The rules that agencies issue pursuant to ACA 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 ACA 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.

Mandatory and Discretionary Rulemaking Provisions

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 ACA 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 ACA 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 ACA require agencies to establish programs or procedures but do not specifically mention regulations.

According to the Fall 2011 Unified Agenda of Federal Regulatory and Deregulatory Actions (hereafter, Unified Agenda), at least 23 rules have been finalized pursuant to ACA. Although the legislation specifically required or permitted some of the rules to be published, other rules implemented ACA 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.

Congressional Oversight and the Unified Agenda

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.

In order for Congress to oversee the regulations being issued to implement ACA, 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. In addition, 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 ACA were not specifically mentioned in the act.

The Unified Agenda

A potentially effective way for Congress to identify upcoming ACA rules is by reviewing the 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 three separate categories:

"active" actions, including rules in the 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); and final rule stage (i.e., final rules or other final actions that are expected to be issued in the next 12 months); "completed" actions (i.e., final rules or rules that have been withdrawn since the last edition of the Unified Agenda); and "long-term" actions (i.e., items under development that agencies do not expect to take action on in the next 12 months).

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.

This Report

The January 20, 2012, edition of the Unified Agenda is the third edition that RISC has compiled and issued after the enactment of ACA. Federal agencies were required to submit data to RISC for the Unified Agenda by September 9, 2011, but some items may have been subsequently updated during the OIRA review process.

This report examines the January 20, 2012, edition of the Unified Agenda and identifies upcoming proposed and final rules and long-term actions that were expected to be issued pursuant to ACA 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, as well as 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 prior to September 9, 2011, 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 March 20, 2012, 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 March 20, 2012, the Federal Register citation is also provided.

It should be emphasized that the proposed and final rules and long-term actions identified in the Unified Agenda and summarized in this report do not represent all the ACA-related rulemaking activity within HHS and other federal agencies. In particular, ACA made numerous changes to existing Medicare payment systems, either permanently or on a temporary basis, and required coverage of new Medicare benefits. In most cases CMS has opted to address these changes in its annual rulemaking updates for the various Medicare payment systems. For example, the annual final rules updating Medicare payment policies and rates for physician services and for hospital inpatient services both include multiple sets of provisions to incorporate and implement ACA mandates. These rules, and similar annual updates, are not discussed in this report.

Upcoming ACA Proposed Rules

The January 20, 2012, edition of the Unified Agenda listed 26 ACA-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). Fourteen of the 26 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, one action); Indian Health Service (IHS, three actions); Office of the Inspector General (OIG, one action); and Centers for Medicare and Medicaid Services (CMS, nine actions). Other proposed rules were expected to be issued by the Department of Labor's (DOL's) Employee Benefits Security Administration (EBSA, two actions) and Office of Workers' Compensation Programs (OWCP, one action); the Treasury Department's Internal Revenue Service (IRS, three actions); the Architectural and Transportation Barriers Compliance Board (ATBCB, one action); and the Office of Personnel Management (OPM, five actions).

Timing of the Proposed Rules

The agencies indicated that 9 of the 26 items in the "proposed rule" section of the Unified Agenda would be issued by the end of February 2012. As of March 20, 2012, five of these nine anticipated notices of proposed rulemaking (NPRMs) had been published, and four had not yet been published. The rules for which NPRMs have been published are

an HHS/CMS rule on "Covered Outpatient Drugs"; an HHS/CMS rule on "Reporting and Returning of Overpayments"; a DOL/EBSA rule on "Ex Parte Cease and Desist and Summary Seizure Orders Under ERISA Section 521"; a DOL/EBSA rule on "Filings Required of Multiple Employer Welfare Arrangements and Certain Other Entities That Offer or Provide Coverage for Medical Care to the Employees of Two or More Employers"; and an ATBCB rule on "Accessibility Standards for Medical Diagnostics Equipment."

The four proposed rules that were expected to be published by the end of February 2012, but that had not been published as of March 20, 2012, include

an HHS/CMS rule on "Home and Community-Based State Plan Services Program and Provider Payment Reassignments"; an HHS/CMS rule on "Payments for Primary Care Services Under the Medicaid Program"; a TREAS/IRS rule on "Branded Prescription Drug Fee"; and a TREAS/IRS rule on "Special Rules Under the Additional Medicare Tax."

Several other proposed rules were expected to be issued later in 2012, 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 July 2012); an HHS/CMS rule on "Administrative Simplification: Standard Unique Identifier for Health Plans" (expected to be published in March 2012); a TREAS/IRS rule on "Fees on Health Insurance and Self-Insured Plans" (expected to be published in June 2012); and an OPM rule on "Federal Employees Health Benefits Program; Disputed Claims and External Review Requirements" (expected to be published in October 2012).

Notable Proposed Rules

HHS agencies considered one of the items in the "proposed rule" section of the Unified Agenda important enough to be included in its regulatory plan. The rule was an ATBCB rule on "Accessibility Standards for Medical Diagnostics Equipment."

Economically Significant or Major Proposed Rules

In addition to the ACA-related proposed rule that was listed in the regulatory plan, the Unified Agenda listed six 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). All six rules were from HHS/CMS. Examples include

a rule on "Home and Community-Based State Plan Services Program and Provider Payment Reassignments," which was expected to be published as an NPRM sometime during February 2012, but had not been published as of March 20, 2012; a rule on "Covered Outpatient Drugs," which the agency published as an NPRM on February 2, 2012; a rule on "Payments for Primary Care Services Under the Medicaid Program," which was expected to be published as an NPRM sometime during January 2012, but had not been published as of March 20, 2012; and a rule on "Medicaid Eligibility Changes Under the Affordable Care Act—Part II," which is expected to be issued sometime during April 2012.

"Other Significant" Proposed Rules

In addition to the above-mentioned rules, the agencies characterized 12 of the 26 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 include

an HHS/HRSA rule on "Elimination of Duplication Between the Healthcare Integrity and Protection Data Bank and the National Practitioner Data Bank," which the agency published on February 15, 2012; an HHS/HIS rule on "Confidentiality of Medical Quality Assurance Records; Qualified Immunity for Participants," which the agency expects to publish sometime during July 2012; an HHS/CMS rule on "Administrative Simplification: Standard Unique Identifier for Health Plans," which the agency expects to issue in March 2012; 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.

Effects on Small Entities

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 ACA-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:

an HHS/CMS rule on "Covered Outpatient Drugs"; a DOL/EBSA rule on "Filings Required of Multiple Employer Welfare Arrangements and Certain Other Entities That Offer or Provide Coverage for Medical Care to the Employees of Two or More Employers"; and a TREAS/IRS rule on "Special Rules Under the Additional Medicare Tax."

In addition to these rules, in 12 other actions listed in the "proposed rule" the agencies were undecided as to whether they trigger a regulatory flexibility analysis. These actions include

an HHS/CMS rule on "Establishment of Exchange Program Part II; Appeals of Eligibility Determinations and Oversight and Financial Integrity"; an HHS/CMS rule on "Disproportionate Share Hospital Payment Reduction"; and a TREAS/IRS rule on "Fees on Health Insurance and Self-Insured Plans."

Upcoming ACA Final Rules

The January 20, 2012, edition of the Unified Agenda listed 25 ACA-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). Fifteen of the 25 upcoming final actions were expected to be issued by components of Health and Human Services (HHS): the Health Resources and Services Administration (HRSA, one action); the Food and Drug Administration (FDA, two actions); and the Centers for Medicare and Medicaid Services (CMS, 12 actions). Eight of the upcoming final rules were expected to be issued by two components of the Treasury Department, the Departmental Offices (DO, one action) and the Internal Revenue Service (IRS, seven actions). Other final rules were expected to be issued by the Department of Labor's (DOL's) Occupational Safety and Health Administration (OSHA, one action) and the Social Security Administration (SSA, one action).

Timing of Final Rules

The agencies indicated that 10 of the 25 items in the "final rule" section of the Unified Agenda would be issued by the end of February 2012. As of March 20, 2012, four of these had been issued:

an HHS/CMS rule on "Administrative Simplification: Adoption of Standards for Electronic Funds Transfer," which was published as an interim final rule on January 10, 2012; an HHS/CMS rule on "Review and Approval Process for Section 1115 Demonstrations," which was published as a final rule on February 27, 2012; an HHS/CMS rule on "Medicare Shared Savings Program; Final Waivers," which was published as an interim final rule on November 2, 2011; and an HHS/CMS joint rule with TREAS/DO on "Affordable Care Act Waiver for State Innovation; Review and Approval Process," which was published as a final rule on February 27, 2012.

As of March 20, 2012, six remaining upcoming final items that the agencies indicated would be published by the end of February 2012 had not been published. Examples include

an HHS/CMS rule on "Community First Choice Option"; an HHS/CMS rule on "Medicaid Eligibility Expansion Under the Affordable Care Act of 2010"; an HHS/CMS rule on "State Requirements for Exchange—Reinsurance and Risk Adjustments"; and an HHS/CMS joint rule with TREAS/IRS on "Uniform Disclosure to Consumers: Benefit Design, Cost Sharing, & Standards for Definitions."

The agencies indicated that 15 other actions would be issued sometime in the next 12 months. Examples include

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 Restaurants and Similar Retail Food Establishments," both of which are expected to be published in November 2012; an HHS/CMS rule on "Face-to-Face Requirements for Home Health Services; Policy Changes and Clarifications Related to Home Health," which is expected to be published in September 2012; a DOL/OSHA rule on "Procedures for the Handling of Retaliation Complaints Under The Affordable Care Act; The Consumer Financial Protection Act; The Seaman's Protection Act; and the FDA Food Safety Modernization Act," which is expected to be published in July 2012; and an SSA rule on "Regulations Regarding Income-Related Monthly Adjustment Amounts to Medicare Beneficiaries' Prescription Drug Premiums," which is expected to be published in June 2012.

Notable Final Rules

Five of the items that were listed in the "final rule" section of the Unified Agenda were considered important enough to be included in the agencies' regulatory plans:

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 Restaurants and Similar Retail Food Establishments"; an HHS/CMS rule on "Medicaid Eligibility Expansion Under the Affordable Care Act of 2010"; an HHS/CMS rule on "Establishment of Exchanges and Qualified Health Plans Part I"; and an HHS/CMS rule on "State Requirements for Exchange—Reinsurance and Risk Adjustments."

Economically Significant or Major Final Rules

The Unified Agenda listed eight entries in the "final rule" section that were considered "economically significant" and "major" (i.e., that were expected to have at least a $100 million annual effect on the economy). Examples include

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 Restaurants and Similar Retail Food Establishments"; an HHS/CMS rule on "Administrative Simplification: Adoption of Standards for Electronic Funds Transfer"; an HHS/CMS rule on "Community First Choice Option"; and an HHS/CMS rule on "Face-to-Face Requirements for Home Health Services; Policy Changes and Clarifications Related to Home Health."

"Other Significant" Final Rules

In addition to the above-mentioned rules, 10 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 include

an HHS/HRSA rule on "340B Orphan Drug Exclusion"; an HHS/CMS rule on "Affordable Care Act Waiver for State Innovation; Review and Approval Process"; an HHS/CMS rule on "Student Health Insurance Coverage"; and a DOL/OSHA rule on "Procedures for the Handling of Retaliation Complaints Under The Affordable Care Act; The Consumer Financial Protection Act; The Seaman's Protection Act; and the FDA Food Safety Modernization Act."

Effects on Small Entities

Three of the upcoming final rules were expected to trigger the requirements of the Regulatory Flexibility Act because of their effects on small businesses:

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 Restaurants and Similar Retail Food Establishments"; and a TREAS/IRS rule on "Indoor Tanning Services; Cosmetic Services Excise Taxes."

The two FDA rules were also expected to have an effect on small governmental jurisdictions, another potential trigger for the regulatory flexibility analysis requirement.

In seven other upcoming final rules, the agencies indicated that they had yet to determine whether a regulatory flexibility analysis would be triggered. All seven rules were from CMS. Examples include

a rule on "Medicaid Eligibility Expansion Under the Affordable Care Act of 2010"; a rule on "Administrative Simplification: Adoption of Operating Rules for Electronic Funds Transfer (EFT) and Remittance Advice (RA)"; a rule on "State Requirements for Exchange—Reinsurance and Risk Adjustments"; and a rule on "Medicare Shared Savings Program; Final Waivers."

ACA Long-Term Actions

As noted earlier in this report, the Unified Agenda also identifies "long-term actions" (i.e., regulatory actions that are under development which the agencies do not expect to take action on in the next 12 months). The January 20, 2012, edition of the Unified Agenda listed 14 long-term actions related to ACA. In comparison to the proposed and final rules previously discussed, it is much less clear when the ACA-related long-term actions are expected to occur. In 11 of the 14 cases, the agencies said that the dates for the actions were "to be determined." Of the three remaining long-term actions, two are expected in December 2012, and one is expected in May 2013.

Nature of the Long-Term Actions

Of the 14 long-term actions, seven 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 include

an HHS/CMS rule on "Preventive Services Under the Affordable Care Act," with the final rule expected to be published at a later date to be determined"; and a DOL/EBSA rule on "Group Health Plans and Health Insurance Issuers Relating to Dependent Coverage of Children to Age 26 Under the Patient Protection and Affordable Care Act," with the date of the next action to be determined.

Other ACA-related long-term actions include

an HHS/HRSA interim final rule on "Designation of Medically Underserved Populations and Health Professional Shortage Areas"; and a DOL/EBSA undetermined rulemaking action on "Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions and Patient Protections Under the Affordable Care Act."

Notable Long-Term Actions

The agencies identified two of the ACA-related long-term actions as "economically significant" and "major":

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"; and a DOL/EBSA action entitled "Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act."

The agencies considered 11 of the 14 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 include

an HHS/HRSA rule on "Designation of Medically Underserved Populations and Health Professional Shortage Areas"; and an HHS/OCR (Office for Civil Rights) rule on "Nondiscrimination Under the Affordable Care Act."

Congressional Oversight Options

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. In order for Congress to oversee the rules being issued pursuant to ACA, 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 ACA, 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 of only one rule in the 16 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 that such use may be somewhat less frequent when Congress and the President are of the same party.

Appendix. Upcoming Proposed and Final Rules Pursuant to the Patient Protection and Affordable Care Act