Biden races clock on health regulations with eye on potential Trump return

President Biden’s administration is working overtime to ensure his health care priorities are protected from a potential second Trump White House. 

In recent weeks, regulatory agencies have been racing against the clock to finalize some of their most consequential policies, such as abortion data privacy, antidiscrimination protections for transgender patients and nursing home minimum staffing. 

At issue is the Congressional Review Act (CRA), a fast-track legislative tool that allows lawmakers to nullify rules even after the executive branch has completed them. The CRA 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. But because of the quirks of the congressional calendar, nobody will likely know when that is until after Congress adjourns for the year. 

According to a review from the George Washington University, that window has often fallen between May and August, most regularly occurring in July.

Most of the major rules that supporters of the administration were concerned about were published in April. Advocacy groups praised the White House for finalizing regulations they said will protect vulnerable populations.

“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 left-leaning 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.”

Resolutions of disapproval are not subject to filibuster rules and need only a simple majority of the House and Senate to agree in order to pass. If the president signs the resolution, regulations can be undone in days, rather than the months or years it would take going through the normal notice-and-comment period. 

If former President Trump wins again and ushers in GOP control of Congress in 2025, the CRA could be a powerful tool to undo the agenda of the Biden White House.

"We don't know what's going to happen in November. So I'm not sure that we'd necessarily think about legacy at this point. But what we're seeing are really important advances to protecting access and affordability for health care," Anderson said.

The CRA was passed in 1996, a part of then-Speaker Newt Gingrich’s (R-Ga.) “Contract with America.” Republicans have used it more than Democrats, though prior to 2017, Congress had only used it once to repeal a final rule. 

“[CRA] wasn't on people's radar the way it is now. We were aware of it, but we weren't thinking about the deadline the way they are now,” said Susan Dudley, former administrator of the Office of Information and Regulatory Affairs under former President George W. Bush.

But during the Trump administration, Congress used the CRA to overturn 16 rules issued toward the end of former President Obama’s term, including one involving family planning grants.

That history has likely led to a scramble among agencies.

Dudley, who is the founder of the George Washington University Regulatory Studies Center, said there were more major rules issued in April than in any other month since 1981.

“I think what we're seeing that's different this year is there's so much more awareness, especially because we know who the nominee is by now, and we know he's used CRA before. And so I think there's just much more acute awareness of this deadline,” Dudley said. 

Among the rules health care advocates had been pushing hard for were ones that would expand protections under the Health Insurance Portability and Accountability Act, or HIPAA, privacy regulation for people seeking abortions, as well as another to protect LGBTQ patients from discrimination. Both were released last week and could be likely targets of a future Trump administration.

Liz McCaman Taylor, a senior attorney at the National Health Law Program, said she had been most anticipating the abortion privacy rule, which blocks health providers and insurers from disclosing protected health information to state officials to aid in the investigation, prosecution or suing of someone who sought or provided an abortion.

“It really responds to the moment we're in post-Dobbs, where people are traveling for care, but also, technology is such that ... my health care data travels with me,” McCaman Taylor said. “Your data can follow you, but that could also haunt you in a situation where providers are truly very fearful of the consequences.”

The antidiscrimination rule itself reinstated and expanded protections that had been gutted under a rule from the Trump administration. So even if a rule can’t be overturned with the CRA, there are still other pathways. Lawsuits filed in conservative courts can also nullify the rules, especially if a new administration takes over and decides not to defend a policy it disagrees with.

Dania Douglas, a senior attorney at the National Health Law Program, said she had been concerned that the administration wouldn’t be able to finish key rules before the CRA “look-back period,” especially because of the uncertainty about when it would fall. 

But that hasn’t been the case.  

"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,” Douglas said. 

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,” Douglas said.