“Looking Back” on the CRA’s Impact on Healthcare Rules

Complications: Health Policy Unraveled

The Congressional Review Act has been used to overturn 20 rules since it was enacted. Will a Biden administration healthcare rule be next?

In this episode of Complications: Health Policy Unraveled, host Stephanie Kennan explores the intricacies of the Congressional Review Act (CRA) and its significance for healthcare policy. She explains how the CRA empowers Congress to review and potentially overturn federal agency rules through its “lookback” provision, particularly during administration transitions. Through a detailed examination of the CRA's complex mechanisms and timelines, Stephanie provides listeners with valuable insights into navigating the intricacies of healthcare policy amidst legislative challenges and regulatory changes.

Meet Your Host

Name: Stephanie Kennan

Title: Senior Vice President, Federal Public Affairs at McGuireWoods Consulting

Specialty: Stephanie Kennan helps clients navigate the legislative and executive branches of the federal government to solve problems involving a variety of healthcare policy issues. Her work focuses on providers, medical device manufacturers, drug manufacturers and associations concerned about Medicare and Medicaid reimbursement.

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Episode Highlights

[0:32] Because of the Congressional Review Act’s “lookback” provision, certain healthcare-related rules may soon face being overturned.

[1:11] The CRA was enacted in 1996 to prevent “midnight rulemaking,” when presidential administrations enact rules late in their term or as they’re leaving office.

[1:32] Agencies must report new rules to Congress who, with a joint resolution of disapproval, can overturn the rule or prevent it from ever going into effect. This process has been used to overturn 20 rules since its enactment.

[2:15] The CRA applies to final rules, including major and non-major rules, and could potentially be used for agency actions not typically subject to notice-and-comment rulemaking.

[2:29] Agencies must submit their rules to the GAO, which frequently helps clarify when agency actions meet the CRA definition of a rule, though these opinions can subject even unsubmitted agency action to a possible joint resolution of disapproval.

[4:04] A joint resolution of disapproval can only be used to invalidate one rule at a time and must be introduced within 60 days of when Congress receives the rule, which can lead to confusion as to when the period actually expires.

[5:01] While the lookback provision is intended to ensure Congress will have a full period to consider each agency action, in practice, the specifications as to committee votes, motions, and timing can create a headache.

[6:34] A rule subject to an enacted joint resolution of disapproval cannot later be reissued in “substantially the same form,” though that phrase is left undefined.

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