Politico, by Jennifer Haberkorn –
November 5, 2012:
The bottled-up rules to set up President Barack Obama’s health care reform law are going to start flowing quickly right after Election Day.
But how long will that last? That depends on who wins the presidency.
The once-steady stream of regulations and rules from the Obama administration — instructions for insurance companies, hospitals and states on how to put the law in place — has slowed to a trickle in recent months in an attempt to avoid controversies before the election. Many states, too, have done little public work to avoid making the law an election issue for state officials on the ballot.
But work has been going on behind the scenes — both in the Department of Health and Human Services and at the state level. As soon as Wednesday, the gears and levers of government bureaucracy are likely to start moving at full speed again.
HHS is expected to begin to release the backlog of regulations. And the states will quickly face a Nov. 16 deadline to tell the Obama administration whether they’ll implement a health insurance exchange — a key part of the law about where consumers will purchase health insurance after 2014.
If Obama wins, that work is likely to continue through the early years of his second term. Democrats will want the law put in place as quickly as possible. They face a late 2013 deadline to have the exchanges ready to go.
And if Romney wins, the need to get the rules out may become even more urgent for Democrats. Any rules or regulations that are not final by Nov. 22 — 60 days before Romney would be sworn in — can be easily put on hold on Jan. 20.
That means the Obama administration would have a huge incentive to have as much of the health law as possible in “final” rule form within two weeks of a Romney victory. Rules and regulations that aren’t final can be more easily changed than those that are.
Susan Dudley, director of the regulatory studies center at The George Washington University and a former administrator of the Office of Information and Regulatory Affairs under President George W. Bush, said the past several presidents have put a stop to as much as they possibly could on Inauguration Day.
“At noon on Jan. 20, one of the first memos out of the chief of staff’s office will be, ‘No regulations get sent to the Federal Register until our appointees look at them,’” Dudley said.
Few significant regulations relating to the health law have come out in recent months. And HHS Secretary Kathleen Sebelius has held fewer news conferences on the law than she did in the first two years after the law passed.
That’s all the more reason that David Merritt, managing director at Leavitt Partners, is expecting a “torrent of regulations” after Election Day.
“I think it’s common knowledge they slow-walked a lot of these. You will see that torrent,” Merritt said. “Will there be enough time for them to become final rules [before a potential Romney inauguration]? Some, probably. Others, probably not. So much is up in the air.”
One of the most important regulations not yet issued is the potentially controversial one to specify what health insurance policies must cover. And final rules have not been issued on other significant pieces of the law, such as those governing the health insurance exchanges, the individual mandate and how to define “full-time” and “part-time” employees in regard to employer penalties.
The administration also hasn’t finalized rules on how certain religious employers — such as a Roman Catholic charity that insures itself — could avoid requirements that they provide insurance coverage of contraceptives.
“There’s a lot of chatter that HHS has been very busy working on regulations that they are not wanting to release during the campaign,” said Gail Wilensky, who led Medicare and Medicaid during the George H.W. Bush administration and is now an economist and senior fellow at Project Hope. “My expectation is we will see a flurry [of releases], but we’ll see the biggest flurry if Obama were to lose.”
Wilensky said the states and industry don’t have all the information they need to set up the law and comply with its rules — and they want to see details from HHS as soon as possible.
“We better see a lot of activity,” she said.
After Inauguration Day, Romney has promised that implementation of the law would come to a crashing halt.
Joel Ario, who was director of the Office of Health Insurance Exchanges at HHS and is now a managing director of Manatt Health Solutions, said the health industry may revolt if it doesn’t have regulations.
If the health law isn’t repealed, or at least gutted through the budget reconciliation process — which will be impossible unless Romney has 51 Republican votes in the Senate — the health industry will still have to comply with the law and will demand to know the details of what they need to do.
Romney “won’t be able to repeal the law. That will become apparent pretty quickly,” Ario said. “Pretty quickly, that will morph into: ‘If you’re going to take a shot at the law, get it done, but we need some certainty now.’”
But even if Romney’s administration were to release a rule or regulation, it surely wouldn’t be written in a way the Obama administration had in mind.
At the state level, there will significant new activity after the election and ahead of a Nov. 16 deadline to decide if and how states will establish an exchange — especially if Obama wins reelection.
Each state will have to declare publicly whether it’s going to establish its own exchange, form a partnership with HHS or leave the work entirely to the federal government.
While some states — those that love or hate the law — have prominently said yes or no, about 30 are somewhere in the middle. They say they need more information from HHS before they can decide or are reluctant to say they are going to accept a piece of “Obamacare.”
If Obama wins reelection, many health policy experts anticipate that several more states will set up their own exchanges or work with HHS on a partnership, arguing that if the exchanges are going to exist, it’s better to do it themselves than leave the work to HHS.
If Romney is elected, the state-level work may stall even further, however. Romney has promised to repeal as much of the law as possible. Any state that has been reluctant to embrace an exchange may want to wait to see how Romney deals with the states’ role in the law.
Joanne Kenen contributed to this report.