Several legislators, including House Majority Leader Kevin McCarthy, are now advocating for utilizing a unique legal avenue to effectuate change under the Affordable Care Act (ACA): the Congressional Review Act (CRA). The CRA enables Congress to overrule regulations from the executive branch with a simple majority. Though the CRA has only been applied to regulations finalized in the previous 60 legislative days, some advocates are exploring whether the power under the Act could extend much further under a new interpretation of the law. The caveat of using the CRA: agencies cannot reissue that rule in “substantially the same form” unless authorized to do so by future legislation.

The CRA requires federal agencies to issue reports to Congress on any rulemaking and guidance, whether or not it is published in the Federal Register. Some argue that this means the clock hasn’t started on the “60 legislative days” component of the CRA for many pieces of the ACA guidance, since the law states that counting begins either when the rule is published in the Register or when Congress receives the report, whichever comes later. While the ACA was published in the Federal Register—and therefore cannot be overruled by the CRA—the countless Rules, FAQs, and other Guidance generated by federal agencies to clarify interpretations and applications of the ACA itself were not published. If federal agencies failed to issue a report to Congress for such ACA guidance, they might be vulnerable under this application of the CRA.

For example: in 2015, CMS released a significant piece of guidance clarifying that the ACA’s contraceptive coverage requirement compels insurers to cover all 18 types of FDA-approved contraception medications without cost-sharing. If CMS did not issue a report to Congress about this guidance, it would be in jeopardy of being overruled under the CRA. If overruled, that rule would need to be introduced through the legislative process, making it harder to reinstate.

While there would likely be legal challenges to such an application of the CRA for rules and guidance surrounding the ACA, it’s a possible avenue lawmakers may pursue. Both the Senate Health, Education, Labor & Pensions Committee and House Energy and Commerce Committee will hold hearings on Wednesday (2/1) and Thursday (2/2) this week to explore the next steps in health care reform, which may include initiating changes under the authority of the CRA.

Our healthcare team at NJL will continue to closely monitor the changing landscape of health care reform and its impact to our clients. For more information on this subject and how it could impact your healthcare business, contact health care attorney Lindsay McLaughlin at 612.305.7739 or lmclaughlin@nilanjohnson.com.