QUESTION:
Now that there is a new Presidential administration, we hear a lot about government efficiency and regulations. What can a new administration do about regulations?
ANSWER FROM HORTYSPRINGER ATTORNEY HENRY M. CASALE:
First, the Executive branch gets to determine whether to issue new regulations. One of the Executive Orders issued on the first day of the Trump administration was a freeze on new regulations. Only time can tell whether and for how long that freeze will last.
As for existing regulations, except for regulations that are subject to the “Congressional Review Act” that is described below, current regulations cannot be rescinded without going through the same notice and comment process that caused the regulations to be enacted in the first place. Any such action will then be subject to judicial review.
But there is an exception to the process needed to rescind a federal regulation that has been created by a little known law called the “Congressional Review Act” (the “CRA”). The CRA was enacted in 1996. The provision in the CRA to keep an eye on is the section of the CRA that applies to final federal regulations, interim final regulations, guidance documents, and policy memoranda that are published within 60 legislative days of the end of a presidential term. In case you were wondering, this law does not apply to judicial appointments
The CRA requires regulatory agencies to submit the applicable rules, regulations, and guidance documents to both houses of Congress and to the Government Accountability Office (“GAO”) before they can officially take effect. Congress has 60 legislative days to review a rule. If Congress does nothing, then the rule takes effect. However, if a simple majority in the House and the Senate (filibuster rules do not apply) do not like the rule/regulation/guidance, they can issue a “resolution of disapproval.” Once the “resolution of disapproval” has passed, unless it is vetoed by the President, the rule/regulation/guidance document is dead. While the CRA states that “no determination, finding, action, or omission under this chapter shall be subject to judicial review,” the scope of the CRA’s bar on judicial review continues to be litigated.
The CRA is relevant now that there is a change in the President and the Republican Party has a majority in the Senate and the House. History also tells us to expect to hear more about this law. The CRA was only used once before, and only three times since the end of, the first Trump administration. However, after President Trump was elected the first time (at which time the Republican Party also had a majority in the House and Senate), the CRA was used 16 times to invalidate Obama/Biden Administration enacted rules. It will be interesting to see if history repeats itself and, if so, which Biden/Harris Administration rule/regulation/guidance document will become a victim of the CRA.
If you have a quick question about this issue or any of the cases discussed this week, please e-mail Henry Casale at hcasale@hortyspringer.com.
If you want to find more information on the healthcare-related regulations that have been affected by the CRA or the new Administration, the Stark Law, the Anti-Kickback statute, the FCA, the SuperValu decision, the demise of the Chevron Doctrine, and a whole lot more, please join Dan and Henry in Nashville at our Hospital-Physician Contracts and Compliance Clinic, April 24-26.