On July 31, U.S. Senator Mark Warner (D-VA) introduced a resolution under the Congressional Review Act (CRA) that would repeal a guidance document that gave states more flexibility when applying for waivers from Obamacare requirements. The Centers for Medicare & Medicaid Services (CMS), U.S. Department of Health and Human Services (HHS), and the U.S. Department of the Treasury issued the guidance on October 24, 2018. The guidance aims to allow states to innovate within their individual health insurance markets.
Senator Warner’s CRA resolution, if passed and signed into law, would undo the health insurance waiver guidance and attracted 44 Democratic cosponsors and the two independent U.S. senators. U.S. Senator Tom Udall (D-N.M.) said that the guidance gives states the authority to allow health insurers to offer short-term plans that do not cover pre-existing conditions. Under the CRA, the resolution would need to pass both houses of Congress and receive President Trump’s signature to repeal the guidance.
On July 15, 2019, the Government Accountability Office concluded that the guidance document was a rule according to the Congressional Review Act (CRA). The CRA gives Congress a chance to review and reject any new regulatory rules created by federal administrative agencies. Since the law’s creation in 1996, 17 out of the over 90,767 rules published in the Federal Register during that time have been repealed using the CRA. 13 additional attempts either failed to pass through Congress or were vetoed.
Guidance is a term in administrative law used to describe documents created by administrative agencies to explain rules, laws, and procedures. Guidance documents affect how agencies administer regulations and programs. However, they are not supposed to be legally binding in the same way as rules issued through the rulemaking processes of the Administrative Procedure Act. Congress used the CRA to repeal a guidance document for the first time on May 21, 2018.