By Matthew B. Lawrence
The Trump Administration has granted health care waivers that the Biden Administration will surely look to end, including work requirement waivers that the Supreme Court is going to consider in Azar v. Gresham. How the Biden Administration approaches this task may set precedents that last far into the future, which is one argument in favor of considering the Congressional Review Act as a potential path forward.
Waivers are a huge part of health policy. They entail a state seeking approval from the federal government to make various changes to ACA or Medicaid programs. Waivers are normally approved for several years at a time, and routinely renewed. They foster experimentation, and are also (or especially) a tool the federal government uses to steer national health policy by pushing states to adopt some reforms and not others, as I explain in a forthcoming article.
Over at the Yale Journal of Regulation blog, I describe how the Congressional Review Act (CRA) could potentially be used to revoke health care waivers (like community engagement, aka work requirement, waivers).
In brief, the CRA is a way Congress can change the law to revoke agency actions without the votes necessary to override a filibuster. The CRA might be a cleaner alternative for revoking health care waivers than administrative revocation by the Biden Administration. One big policy advantage of this route is that it wouldn’t come back to haunt health policy. Revocations through the administrative process would set a precedent that could undermine the stability of all waivers, but revocations through the CRA would not.
To start, I’ll summarize the CRA and the limited precedent that using it would set. Ordinarily there is a tight timeframe in which the CRA is available to Congress to revoke an agency action without facing a filibuster. As a result, when an administration changes, ordinarily only its late-breaking “midnight” actions are susceptible to CRA revocation. But if an agency does not provide notice of an action to Congress for purposes of the CRA, this timeframe can be extended, not beginning until the action is later determined to be eligible for CRA treatment. The Trump Administration does not appear to have provided such notice for waivers, which is why the waivers it approved could potentially be revoked through the CRA.
Importantly, if the applicability of the CRA to waivers were established, then future administrations presumably would provide proper notice to Congress, thus protecting all but true midnight waivers from revocation. It would effectively operate as a one-time revocation tool that the Biden Administration could use, but future administrations could not.
Compare that to the potentially important and long-lasting precedent that administrative revocation of waivers would set. If the Biden Administration were to revoke Trump Administration waivers, it would be setting a precedent and testing its authority to revoke waivers. I am not aware of any prior waiver that has been unilaterally revoked by the Department of Health and Human Services once granted to a state. That is not to say the agency doesn’t have the authority to revoke a waiver through the administrative process — it does, but that authority is untested.
The precedent the Biden Administration would set by revoking waivers, and potentially defending such revocations in court, could later be used in ways problematic for health policy.
Imagine that in year four (or eight) of the Biden Administration, it approves an exciting waiver, but then an incoming administration with different views takes office. If the Biden Administration succeeds in establishing a broad authority to revoke the Trump Administration’s waivers today, it might come to regret it tomorrow when that precedent is used to revoke its own waivers.
Worse, it takes a lot of time, energy, and political capital for a state to develop and implement a waiver. States are more likely to put in that work if they can expect to be able to rely on holding onto waivers once granted; the greater the possibility of revocation, the less willing states may be to put in that effort.
In light of the limited precedent that using the CRA to revoke waivers would set, the route may be preferable to administrative revocation from the long-term standpoint of health policy. Of course, as I touch on in my Notice & Comment post, that is not to say that the CRA route is without political, legal, or policy challenges of its own — but it is worthy of serious consideration.