Senate Democrats plan to use the Congressional Review Act (CRA) this fall to reverse a guidance document that gave states more flexibility when applying for waivers from Obamacare requirements. The plan was included in a letter written by Senate Minority Leader Chuck Schumer (D.-N.Y.) outlining fall priorities for the Democratic Party, according to Politico on September 5. Schumer wrote that the guidance document allows states to offer health insurance plans that do not include protections for patients with pre-existing conditions.

 

U.S. Senator Mark Warner (D-VA) introduced a CRA resolution that would repeal the guidance document on July 31, 2019. 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.

 

The resolution has attracted 44 Democratic cosponsors and the two independent U.S. senators. 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law’s creation in 1996, 17 out of the over 90,767 rules published in the Federal Register during that time have been repealed using the CRA. 13 additional attempts either failed to pass through Congress or received vetoes.

 

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.