Apr 15, 2024 - Health

Biden faces deadline to finalize key health care rules

Illustration of the Capitol dome opening up to reveal an emergency button with a hand hovering above about to press it.

Illustration: Aïda Amer/Axios

The Biden administration has just weeks to finish health policy regulations on Medicaid, tobacco, reproductive care and other key areas, to avoid any chance of them being repealed by the next Congress.

Why it matters: If Republicans sweep the elections, a GOP Congress and president could roll back Biden's agenda using the Congressional Review Act, a 1996 law aimed at preventing "midnight rulemaking" late in a term.

Flashback: In 2017, the Republican Congress and newly elected President Trump used the CRA to strike 16 Obama administration rules, including a Health and Human Services regulation on Title X family planning grants.

How it works: A new Congress has a "lookback period" to review rules the previous administration submitted within 60 legislative or session days of when the last Congress adjourned.

  • It would take a simple majority in both chambers and the president's signature on a resolution of disapproval to strike any regulation.

State of play: Rules that could be in the crosshairs deal with nursing home staffing, a ban on menthol cigarettes, and limits on the disclosure of information concerning reproductive care.

  • Other efforts would reduce discrimination against or increase access to care for low-income and underserved populations, per the National Health Law Program.
  • The deadline for issuing regulations that won't be subject to the lookback isn't clear because of Congress' ever-shifting schedule. But the general consensus is from around mid-May to Memorial Day.

Leading Republicans didn't identify possible targets but indicated they wouldn't hesitate to use the CRA if the administration tries to end-run the intent of Congress.

  • "It's certainly a way in if a legislative priority is not going to pass or get signed into law," said Rep. Brett Guthrie, the House Energy and Commerce health subcommittee chair.

The administration's urgency to finalize policies will soon pick up, since any rule issued after Memorial Day could potentially be subject to invalidation, said Leigh Feldman, a health policy director at McDermott+Consulting.

  • "We're really in the crunch season for the next month of finalizing regs to clear them of that CRA threat," Feldman said.

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