President Biden’s administration is working overtime to ensure its health priorities are protected from a potential second Trump in the White House.
In recent weeks, regulatory agencies have been racing against the clock to finalize some of their most important policies, such as abortion data privacy, anti-discrimination protections for transgender patients and minimum staffing in nursing homes.
At issue is the Congressional Review Act (CRA), a fast-track legislative tool that allows lawmakers to overturn rules even after the executive branch has finalized them. The CRA also prohibits agencies from following “substantially similar” rules in the future unless Congress orders them to do so.
The rules can be protected if they are completed before the “lookback” window opens in the last 60 legislative days of the 2024 session. But because of the peculiarities of the Congressional calendar, no one will likely know when that will happen until after Congress adjourns this year.
According to an analysis from George Washington University, this window frequently falls between May and August, occurring most regularly in July.
Most of the key rules that worried government supporters were published in April. Advocacy groups have praised the White House for finalizing regulations they say will protect vulnerable populations.
“The administration is moving forward with important work when it comes to health care, affordability and access,” said Ben Anderson, senior deputy director of health policy at the left-leaning consumer advocacy group Families USA. “If the rules are not finalized soon on the calendar, then everything is at risk of being undone by a future Congress.”
Resolutions of disapproval are not subject to filibuster rules and only need a simple majority of the House and Senate to pass. If the president signs the resolution, the regulations could be undone in days rather than the months or years it would take to go through the normal notice and comment period.
If former President Trump wins again and ushers in Republican Party control of Congress in 2025, the CRA could be a powerful tool to undo the Biden White House’s agenda.
“We don’t know what’s going to happen in November. So I’m not sure we would necessarily think about legacy at this point. But what we’re seeing are really important advances in protecting access and affordability of health care,” Anderson said.
The CRA was passed in 1996 as part of then-House Speaker Newt Gingrich’s (R-Ga.) “Contract with America.” Republicans have used it more than Democrats, although before 2017 Congress had only used it once to repeal a final rule.
“[CRA] It wasn’t on people’s radar like it is now. We were aware of that, but we weren’t thinking about the deadline like we are now,” said Susan Dudley, former administrator of the Office of Information and Regulatory Affairs under former President George W. Bush.
But during the Trump administration, Congress used the CRA to overturn 16 rules issued at the end of former President Obama’s term, including one involving family planning subsidies.
This story likely led to confusion among agencies.
Dudley, who is the founder of the Center for Regulatory Studies at George Washington University, said there were more major rules issued in April than in any other month since 1981.
“I think what we’re seeing different this year is that there’s a lot more awareness, especially because we already know who the nominee is and we know he’s used CRA before. And so I think there’s a much more acute awareness of that deadline,” Dudley said.
Among the rules that health care advocates have pushed hard for were those that would expand protections under the Health Insurance Portability and Accountability Act, or HIPAA, privacy regulation for people seeking abortions, as well as another for protect LGBTQ patients from discrimination. Both were released last week and could be likely targets of a future Trump administration.
Liz McCaman Taylor, senior staff attorney at the National Health Law Program, said she had high hopes for the abortion privacy rule, which prevents health care providers and insurers from disclosing protected health information to state officials to help with the investigation, prosecution or prosecution of someone who sought or provided an abortion.
“This really responds to the moment we are in post-Dobbs, where people are traveling for care, but also, the technology is such that… my health data travels with me,” McCaman Taylor said. “Your data can follow you, but it can also haunt you in a situation where providers are really very afraid of the consequences.”
The anti-discrimination rule itself reinstated and expanded protections that had been gutted under a Trump administration rule. Therefore, even if a rule cannot be overturned with the CRA, there are still other ways. Lawsuits filed in conservative courts could also overturn the rules, especially if a new administration takes over and decides not to uphold a policy with which it disagrees.
Dania Douglas, senior lawyer at the National Health Legislation Program, said she was concerned that the government would not be able to complete important rules before the CRA’s “lookback period,” especially because of uncertainty about when it would fall. .
But that wasn’t the case.
“The Biden administration has been doing a lot of work around health care equity…in the last two weeks, many of the rules that provide these really critical protections have been issued,” Douglas said.
She specifically referenced a rule that strengthens anti-discrimination protections in health care for people with disabilities, something that hasn’t been updated in nearly 50 years.
“I think the Biden-Harris administration was very aware of this CRA deadline and worked very hard to try to get these rules out in April… at a time when they think it will hopefully be safe from the CRA lookback period,” —Douglas he said.
This story originally appeared on thehill.com read the full story
