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Crunch time for Biden to avoid CRA lookback risk

Apr 11, 2024
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 issue health policy rules that won't face the risk of being rolled back if Republicans sweep the November elections.

The big picture: Regulations issued after mid-May are vulnerable to being rolled back under the Congressional Review Act, a 1996 law aimed at preventing "midnight rulemaking" in the last months of a term.

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

  • It takes a simple majority in both chambers and the president's signature on a resolution of disapproval to strike a regulation.
  • The election of Donald Trump and the Republican takeover of Congress in 2017 led to the repeal of 16 Obama administration actions, including an HHS regulation focused on Title X family planning grants.
  • Likewise, President Biden in 2021 signed three CRA resolutions the Democratic Congress used to kill Trump administration rules.

Go deeper: The Biden administration has an ambitious regulatory agenda, including forthcoming rules on Medicaid, the Affordable Care Act, the Rehabilitation Act and other areas that would reduce discrimination against or increase access to care for low-income and underserved populations, per the National Health Law Program.

Leading congressional Republicans didn't identify specific regulations, but they indicated they wouldn't hesitate to use the CRA if the administration tried to end-run the intent of Congress.

  • "We were able to use it successfully when President Trump came into office," said Rep. Brett Guthrie, the House Energy and Commerce health subcommittee chair.
  • "It's certainly a way in if a legislative priority is not going to pass or get signed into law.… We need to do it because it shows our congressional intent."
  • Senate HELP Committee Ranking Republican Bill Cassidy similarly didn't rule out employing the CRA in the health arena.

Between the lines: Health policy experts told Axios they are watching a number of potentially controversial rules dealing with nursing home staffing, a ban on menthol cigarettes, and a HIPAA privacy rule on reproductive care.

  • The drop-dead date, when the Biden administration can issue regulations that won't be subject to the lookback, isn't clear because of Congress' ever-shifting schedule.
  • Leigh Feldman, a health policy director at McDermott+ Consulting, said she estimates that any Biden administration rule issued after Memorial Day could potentially be subject to invalidation through the CRA.
  • "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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