Federal regulators have adopted at least 18 new rules since passage of the healthcare reform law eight and a half months ago, according to the Congressional Research Service, most of the time without giving the public much chance to comment ahead of time.
The new rules include health insurance reforms, the creation of an early retiree reinsurance program and requirements for states to start high-risk pools for people with pre-existing conditions.
The new report found that most of the rules were not specifically required by the reform bill, but added that "the agencies' use of rulemaking to accomplish the underlying statutory objectives does not appear to be either improper or unusual." Furthermore, the report explains, "if an agency attempts to bind the public through some mechanism other than a rule, the agency's actions could be subject to judicial review and possible reversal."
More controversial is the decision to allow public comment only after a preliminary regulation was already adopted in 12 of the 18 regulations. That process — known as an interim final rule — theoretically allows regulators time to review the comments before final rules are published. But in this case, all 12 comment periods ended either the day the rules were published or later.
The report says the administration almost always justified its decision to limit comments, oftentimes by arguing that the law required many of the regulations to be put in place quickly. However, in the case of the 10 percent tax on indoor tanning services, regulators merely stated that it had "been determined" that a broader comment period wasn't needed, without further explanation of who made the determination and why.
In addition, the tanning tax regulation was not accompanied by a cost-benefit analysis that's required for regulatory actions that are expected to have an annual economic impact of at least $100 million. The Congressional Budget Office has estimated that the tax would bring in $2.7 billion over a period of 10 years.
Even if regulators were justified in their decision to shorten the comment period, the report concludes, doing so will likely limit stakeholders' input.
"Even though the comment periods for these rules ended on or before the rules took effect, the agencies may still be persuaded to change them at some point in the future," the report explains. "Nevertheless, comments on final rules are generally believed to be less likely to result in changes to the rules than if comments were permitted prior to the final rules being published and made effective."