Biden races clock, in recent weeks, to ‘Trump-proof’ health regulations
Now, with only 6 months before the presidential election, the Biden administration is working to secure its health care policies, such as abortion data privacy, otherwise lawmakers may nullify new executive branch rules.
The Biden administration has enacted several significant changes to the nation’s health-care system during its tenure, such as abortion data privacy, antidiscrimination protections for transgender patients and nursing home minimum staffing rules. Now, with only six months remaining before the presidential election, it is working to secure its policies in case Donald Trump returns to power and Republicans control Congress.
“The administration is advancing important work with respect to health care, affordability and access,” said Ben Anderson, deputy senior director of health policy at the consumer advocacy group Families USA. “If rules aren’t finalized soon enough in the calendar, then everything’s sort of at risk of being undone by a future Congress.”
At issue is the Congressional Review Act, which allows lawmakers to nullify rules even after the executive branch has completed them. The act also bars agencies from pursuing “substantially similar” rules going forward unless Congress orders it. Rules can be protected if they are finished before the “look-back” window opens in the last 60 legislative days of the 2024 session. However, because of the quirks of the congressional calendar, nobody likely will know when that is until after Congress adjourns for the year.
During the Trump administration, Congress used the act to overturn 16 rules issued toward the end of former President Barack Obama’s term. If he wins a second term, Trump plans to use the same tactic to unravel as much of President Biden’s agenda as possible, according to people close to him. This is why senior Biden aides are scrambling to “Trump-proof” as many regulations as they can before they become vulnerable to being overturned under the 1996 law.
“The Biden administration has been doing a lot of work around health care equity in the last two weeks, so many of the rules that provide these really critical protections have been issued,” said Dania Douglas, a senior attorney at the National Health Law Program.
She specifically referenced a rule bolstering antidiscrimination protections in health care for people with disabilities, something that hadn’t been updated in nearly 50 years. “I think the Biden-Harris administration was very aware of this CRA deadline and worked very hard to try to get these rules out in April, at a time when they think it will hopefully be safe from the CRA look-back period,” she said.
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In a second term, Trump has promised to disassemble many Biden policies through a series of executive actions. Like presidents before him, Trump could sign an order freezing all proposed regulations, which would make it easier to undo them before they are completed. He also could undo many Biden administration executive orders with the stroke of a pen. However, unwinding final regulations that he can’t overturn with the Congressional Review Act could prove more difficult, according to analysts. It likely would require proposing new regulations that alter the existing ones, a process that could take years.