November 6, 2012

Post-election flood of ‘Obamacare’ rules expected

From: Politico


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.

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