How Health Care Reform Happens, and How It Could All Disappear

It seems that almost every day new regulation is enacted to clarify important aspects of the Health Care Reform Bill, and it’s no wonder – there are more than 1,000 references requiring regulatory clarification.

Unfortunately, this "regulatory clarification" is often times more confusing than the underlying language itself. The following FAQs will address the purpose of these regulations, the methodology behind the development of these regulations and the potential threat to these regulations in the event of changes to the political landscape.

The Patient Protection and Affordable Care Act (PPACA) is over 2,000 pages long; why doesn’t it contain everything we need to know about how to apply it to our plans? What is an "Act" supposed to do, anyway?

Although Acts are typically thousands of pages long, most lack the detail required to effectively implement this new legislation into the day-to-day operations of individual Plans. Acts generally provide an overview and timeline for compliance but, in many instances, the "what, when and how" of compliance are detailed after the passage of the legislation in the form of "regulatory clarifications." In the case of the Health Care Reform Bill, the PPACA includes a host of health-related provisions to be implemented under the auspices of the Department of Health and Human Services (HHS).

What’s with all these different compliance dates and "interim" rules? When must I comply?

Regardless of which agency is mandated to develop regulatory clarification and rules for compliance, they all are published in the Federal Register. When first published, these rules are considered "proposed" and subject to public comment; once the comment period closes, the rules are considered "final."

In the case of health care reform legislation, the shortened compliance period makes the public comment period virtually impossible to manage. As a result, agencies such as the HHS are releasing "interim final" rules requiring mandatory compliance. Although these rules are mandatory, they are open for "public comment" and thus subject to change.

Why can’t I figure out how the law is supposed to work?

Because rules are not necessarily published to coincide with the deadlines set forth in the Act, in some instances, compliance deadlines may precede the publication of the rules. For example, the HITECH Act which was part of the American Reinvestment and Recovery Act of 2009, required compliance in February 2010 yet maintained a publication deadline in July 2010. As such, the fact that we are still struggling to understand, let alone implement, certain provisions of this law, is understandable.

Can the rules be changed?

Changes to new rules or to existing rules subject to amendment may occur during the public comment period; however, the changes are typically in the form of greater and/or more detailed explanation of what the rule means as opposed to wholesale changes to a rules purpose or intent. In fact, changes to the Federal Register, resulting in thousands of pages of new text, occur daily.

Is it possible for the PPACA to be completely repealed?

Yes. Although certain members of Congress are actively working towards that goal each and every day, the more likely outcome will be partial rescission with the majority surviving intact.

How could the PPACA be repealed, either in whole or in part?

In order for this to occur, a bill seeking repeal must pass both houses of Congress by a majority vote. Once passed by Congress, it is then sent to the President who must sign the bill in order for it to become law. In the event of a Presidential veto, the bill returns to Congress. In order for Congress to "override" a Presidential veto, the bill must receive a difficult to achieve two-thirds majority vote in Congress.

Alternately, the President can sit on the bill, in other words take no action. Should this occur and ten days elapse (excluding Sundays), the bill becomes law even without the President’s signature. An exception to the ten day rule occurs should Congress adjourn prior to the expiration of this time period – otherwise known as a "pocket veto."