House Energy and Commerce Chairman Frank Pallone, Jr. (D-NJ) and Senate Finance Ranking Member Ron Wyden (D-OR) sent a letter to the Government Accountability Office (GAO) today seeking a determination on whether the Trump Administration’s 2018 guidance on Section 1332 waivers is subject to the Congressional Review Act (CRA).
Under Section 1332 of the Affordable Care Act (ACA), states were given the authority to waive certain requirements of the law in favor of new reforms if the states maintained the level of benefits, affordability, and coverage provided by the ACA. In October 2018, the Trump Administration issued new guidance on Section 1332 waivers significantly loosening the standards that states must meet in order to receive waiver approval. This interpretation disregards both the plain text of the statute, as well as the congressional intent behind Section 1332. The new guidance will increase costs for Americans with pre-existing conditions, seniors, and women by expanding access to junk plans and undermining the market for comprehensive coverage.
In their letter to GAO Comptroller General Gene Dodaro, Pallone and Wyden explained why they believe the 2018 guidance is a rule based upon the definition of the term “rule" as defined by the Administrative Procedure Act. If GAO finds that the 2018 guidance qualifies as a rule then the guidance could be subject to the Congressional Review Act, which allows Congress to overrule regulations issued by federal agencies through an expedited legislative process.
“We write to seek your determination as to whether the guidance constitutes a general statement of policy and a ‘rule’ for purposes of the CRA," Pallone and Wyden wrote. “We request that you evaluate whether the 2018 guidance constitutes a rule and provide us with your opinion. We thank you for considering this matter expeditiously and look forward to your response."
