The 115th Congress took the reins yesterday, and efforts to repeal the Affordable Care Act are underway. The FEHBlog finds interesting the House of Representative’s efforts to strengthen Congress’s authority over the rulemaking authority of the regulatory agencies. This makes sense to the FEHBlog because the Constitution does give the legislative authority to Congress. The House already has sent to the Senate a bill that would facilitate the Congressional override of Obama Administration regulations finalized over the past year (the Midnight Rules Act). The House also is actively considering a bill that would require Congressional and Presidential approval of major rules which by definition have an economic impact of $100 million or more on the national economy (the REINS Act). These laws supplement the in force Congressional Review Act.
By design of its enactors, the Affordable Care Act has been implemented through reams of regulations and sub-regulatory guidance, e.g., the 35 (or XXXV) sets of Frequently Asked Questions which typically tightened the screws on insurers. When the Trump Administration takes the reins at the agencies that administer the ACA — the Health and Human Services Department, the Labor Department, and the Internal Revenue Service — the new leadership can scale back the existing rules following processes set forth under the Administrative Procedure Act. Assuming for example that Congress does not override the onerous HHS PHSA Section 1557 rule, new leadership at HHS can revise that rule by, for example, narrowing its scope, reinstating exhaustion of administrative remedies, etc. What’s more, the new leadership can simply withdraw or rewrite the subregulatory guidance as desired. Live by the simplicity of subregulatory guidance, etc.
The FEHBlog does not plan to breathlessly track the course of the efforts to repeal and replace the ACA. He will discuss impact of the legislative process on the FEHBP as events warrant.
The FEHBlog has discovered that Title VII of the FY 2017 National Defense Authorization Act includes a boatload of TRICARE changes. Section 712, for example, requires the Defense Secretary to report to Congress in June 2017 about the best way to offer coverage to military reservists and their families. One of the options is allowing those folks to enroll in the FEHBP.
In the mid-1990s, the Defense Department encountered a problem in providing coverage to military retirees who are not eligible for Medicare. Congress created a pilot program in the FEHBP which provided for FEHBP carriers to set up separate plans for these retirees. The pilot program was an epic fail because the premiums were too darn high. At the turn of the century, Congress created an expensive TRICARE for Life program for these retirees. Interestingly, Section 715 of the NDAA provides entry for these retirees into the Federal Employees Dental and Vision Insurance Program in 2018. That’s what should have be done at the turn of the century. Adding Indian tribal employees to the FEHBP risk pools has worked out fine. (Not every ACA change was wrongheaded).
Section 712 of the NDAA also authorizes the Defense Secretary and the OPM Director to create a separate health insurance marketplace for the reservists modeled on the FEHBP. That idea strikes the FEHBlog as an opportunity to repeat the failure of the similar military retiree pilot program in the 1990s. But no one on the Hill asked the FEHBlog.