Executive Authority to Reform Health: Options and Limitations

Moe T. M. Howell W. G. , “The Presidential Power of Unilateral Action,” Journal of Law, Economics, and Organization, 15 no. 1 (1999): 132–179, at 158.

Reyla H. C. , Presidential Directives: Background and Overview, Congressional Research Service Report to Congress, August 9, 2007, at 2.

Halstead T. J. , Executive Orders: Issuance and Revocation, Congressional Research Service Report to Congress, RS20846, March 19, 2001.

U.S. Const. art. II, § 3.

See Reyla , supra note 2, at 5.

Proclamation No. 17, 12 Stat. 1268 (1863).

See Reyla , supra note 2, at 5.

See Moe Howell , supra note 1, at 155; see also Halstead, supra note 3; House Committee on Government Operations, Executive Orders and Proclamations: A Study of a Use of Presidential Powers, 85th Cong., 1st sess., 1957.

Federal Register Act, 44 U.S.C. §1505.

5 U.S.C. § 551(4).

5 U.S.C. §553(b).

See Halstead , supra note 3, at 2.

Id.

44 U.S.C. § 1505(a); see also Halstead, supra note 3, at 2.

Halstead T. J. , Presidential Signing Statements: Constitutional and Institutional Implications, Congressional Research Service Report to Congress, RL33667, September 17, 2007, at 1.

Id., at 3–4.

Id., at 22.

See Moe Howell , supra note 1, at 160.

Park E. , “An Examination of the Wyden-Bennett Health Reform Plan: Key Issues in a New Approach to Universal Coverage,” Center on Budget and Policy Priorities, available at <http://www.cbpp.org/9-24-08health.htm> (last visited May 26, 2009).

42 U.S.C. 1315. The provision's language has changed very little since its enactment. It currently reads: “(a) In the case of any experimental, pilot, or demonstration project which, in the judgment of the Secretary, is likely to assist in promoting the objectives of title…XIX…n a State or States (1) the Secretary may waive compliance with any of the requirements of section 1902, as the case may be, to the extent and for the period he finds necessary to enable such State or States to carry out such project. “The original Section 1115 statute was passed as Pub. L. No. 87-543, 76 Stat. 192, available at <http://www.ssa.gov/OP_Home/ssact/title11/1115.htm> (last visited May 26, 2009).

Kaiser Commission on Medicaid and the Uninsured, Section 1115 Waivers in Medicaid and the State Children's Health Insurance Program: An Overview, July 20, 2001, at 3, available at <http://www.kff.org/medicaid/loader.cfm?url=/commonspot/security/getfile.cfm&PageID=13881> (last visited May 26, 2009).

Id.

“Under Section 1115, the Department of Health and Human Services is given latitude, subject to the requirements of the Social Security Act, to consider and approve research and demonstration proposals with a broad range of policy objectives. The Department desires to facilitate the testing of new policy approaches to social problems. In order to ensure a sound, expeditious and open decision-making process, the Department will be guided by the policies and procedures described in this statement in accepting and reviewing proposals submitted pursuant to section 1115.” Medicaid Program: Demonstration Proposals Pursuant to Section 1115(a) of the Social Security Act; Policies and Procedures, 59 Federal Register 49,249, (September 27, 1994).

“[T]he Department is committed, through negotiations with State applicants, to…[a]pprove waivers of at least sufficient duration to give new policy approaches a fair test. The duration of waiver approval should be congruent with the magnitude and complexity of the project (for example, large-scale statewide reform programs will typically require waivers of five years).” Id.

“The Department will assess cost neutrality over the life of a demonstration project, not on a year-by-year basis, since many demonstrations involve making ‘up-front’ investments in order to achieve out-year savings.” Id.

Thompson emphasized that the administration wanted “to give governors the flexibility they need to expand insurance coverage to more Americans through innovative approaches, including the kind of health insurance options available in the private sector.” Department of Health and Human Services, HHS to Give States New Options for Expanding Health Coverage: New Initiative Promotes State Innovations to Expand Access for the Uninsured, Press Release, August 4, 2001, available at <http://www.hhs.gov/news/press/2001pres/20010804.html> (last visited May 26, 2009).

First, it encourages states to explore ways to increase the number of individuals covered through the Medicaid program by limiting benefits and increasing cost sharing. Second, it requires states to integrate with some form of private health insurance scheme in Medicaid's public financing scheme. Third, it targets beneficiaries earning salaries less than 200 percent of the federal poverty level (FPL). Ryan J. M. , National Health Policy Forum, 1115 Ways to Waive Medicaid and SCHIP Rules, June 13, 2002, at 3, available at <http://www.nhpf.org/pdfs_ib/IB777_1115Waivers_6-13-02.pdf> (last visited December 16, 2008).

Baumrucker E. P. , Medicaid and SCHIP Section 1115 Research and Demonstration Waivers, Congressional Research Service Report to Congress, March 8, 2007, at 1

Id.

42 U.S.C. 1936a(a)(10)(A)(i) (2008).

Alexander v. Choate, 469 U.S. 287 (1985).

42 U.S.C. § 1395b-1(a)(1)(A) (2008).

42 U.S.C. § 1395b-1(a)(1XA) – (K) (2008).

United States Government Accountability Office, Medicare Demonstration PPOs: Financial and Other Advantages for Plans, Few Advantages for Beneficiaries, Report to the Ranking Minority Member, Committee on Finance, U.S. Senate, September 2004, at 2; 42 U.S.C. § 1395b-1(a)(2) (2008).

42 U.S.C. § 1395b-1(b) (2008).

In authorizing a demonstration project, however, Congress sometimes references and incorporates the existing section 222 waiver authority in legislation. Piperreport: Medicaid, Medicare, Pharma, and More Web site, available at <http://www.piperreport.com/archives/categories/72.html> (last visited May 26, 2009).

See Baumrucker , supra note 28, at 7.

Centers for Medicare and Medicaid Services, Department of Health and Human Services, “Medicare Demonstrations,” available at <http://www.cms.hhs.gov/DemoProjectsEvalRpts/MD/list.asp#TopOfPage> (last visited May 26, 2009).

Centers for Medicare and Medicaid Services, Department of Health and Human Services, Medicare Physician Group Practice Demonstration, available at <http://www.cms.hhs.gov/DemoProjectsEvalRpts/downloads/PGP_Fact_Sheet.pdf> (last visited December 15, 2008).

Centers for Medicare and Medicaid Services, Department of Health and Human Services, Rural Hospice Demonstration Summary, available at <http://www.cms.hhs.gov/DemoProj-ectsEvalRpts/downloads/RMBH_Summary.pdf> (last visited May 26, 2009).

Centers for Medicare and Medicaid Services, Department of Health and Human Services, Medicare Fact Sheet, Help for Chronically Ill Beneficiaries: The Medicare Disease Management Demonstration, available at <http://www.cms.hhs.gov/DemoProjectsEvalRpts/downloads/BIPAADM_Fact_Sheet.pdf> (last visited May 26, 2009).

Centers for Medicare and Medicaid Services, Department of Health and Human Services, Legislative History MMA §646 – Medicare Health Care Quality Demonstration, available at <http://www.cms.hhs.gov/DemoProjectsEvalRpts/downloads/MMA646_Legislation.pdf> (last visited May 26, 2009).

Hillestad R. , “Can Electronic Medical Record Systems Transform Healthcare? An Assessment of Potential Health Benefits, Savings, and Costs,” Health Affairs, 24 no. 5 (2005): 1103–1117, at 1103.

HHS is in the process of coordinating the development of standards with a variety of private actors and federal agencies, as required by Congress in HIPAA. Medicare Payment Advisory Committee, Report to the Congress: New Approaches in Medicare, June 2004, at 173, available at <http://www.medpac.gov/documents/June04_Entire_Report.pdf> (last visited May 26, 2009).

Exec. Order No. 13,335, 69 Federal Register 84 (April 30, 2004).

See, e.g., Exec. Order 13,410, 71 Federal Register 166 (August 22, 2006).

Medicare Improvements for Patients and Providers Act of 2008, Pub. L. No. 110-275, 122 Stat. 2525 (2008).

Id.

Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-173, 117 Stat. 2066 (2003); See also Leavitt M. O. , Secretary of Health and Human Services, Pilot Testing of Initial Electronic Prescribing Standards – Cooperative Agreements Required Under Section 1860D-(4) (e) of the Social Security Act as Amended by the Medicare Prescription Drug, Improvement, and Modernization Action (MMA) of 2003, available at <http://www.cms.hhs.gov/EPrescribing/Downloads/E-RxReporttoCongress.pdf> (last visited May 26, 2009).

See U.S. Dept. Health and Human Services, Centers for Medicare and Medicaid Services, “E-Prescribing Overview,” available at <http://www.cms.hhs.gov/EPrescribing> (last visited May 26, 2009).

Pub. L. No. 110-275 (110th Cong.) 122 STAT. 2525, Sec. 132(b) (5)(B).

Pub. L. No. 110-275 (110th Cong.) 122 STAT. 2525, Sec. 132(a) (2)(A).

Department of Health and Human Services, Centers for Medicare and Medicaid Services, Electronic Health Records Demonstration, Demonstration Summary, 1–19, available at <http://www.cms.hhs.gov/DemoProjectsEvalRpts/downloads/EHR_DemoSummary.pdf> (last visited December 16, 2008).

Id., at 2.

Id.

Id., at 6.

Id., at 4.

Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. No. 108-173, 117 Stat. 2066 (2003).

42 U.S.C. § 1395w-111(i) (2008).

21 U.S.C. § 384(b) (2008).

21 U.S.C. § 384(1)(1) (2008).

Pear R. , “Administration Offers a Mixed View on Drug Imports,” New York Times, December 22, 2004.

42 U.S.C. § 1395kk-1 (2008).

42 U.S.C. § 1395kk-1(a)(4)(A) & (B) (2008).

See Legislative History, at 758 (emphasis added).

Id.

42 U.S.C. § 1395w-111(i)(2) (2008).

42 U.S.C. § 1395kk-1(a)(4)(A) (2008).

Centers for Medicare and Medicaid Services, Durable Medical Equipment (DME) Medicare Administrative Contractor (MAC) Award General Fact Sheet, available at <http://www.cms.hhs.gov/MedicareContractingReform/Downloads/DME_MAC_Awards_General_Fact_Sheet.pdf> (last visited May 26, 2009).

Executive Memorandum 8, The Health Care Consumer Bill of Rights and Responsibilities, 1997. See also Exec. Order 13,040, 62 Federal Register 14,773 (March 28, 1997); Exec. Order 13,056, 62 Federal Register 39,415 (July 23, 1997).

Pear R. , “Clinton to Punish Insurers Who Deny Health Coverage,” New York Times, July 7, 1998.

Bennet J. , “True to Form, Clinton Shifts Energies Back to U.S. Focus,” New York Times, July 5, 1998.

Pub. L. No. 104-191 (August 21, 1996).

See, e.g., id., at Sec. 707.

Interim Rules for Health Insurance Portability for Group Health Plans, 62 Federal Register 16,894 (April 8, 1997).

Application of HIPAA Group Market Portability Rules to Health Flexible Spending Arrangements, 62 Federal Register 67,688 (December 29, 1997); Health Insurance Portability, 64 Federal Register 57,520 (October 25, 1999).

Final Regulations for Health Coverage Portability for Group Health Plans and Group Health Insurance Issuers Under HIPAA Titles I & IV, 69 Federal Register 78,720 (December 30, 2004).

U.S. Department of Labor, “Bush Administration Announces Final Rules on Portability of Health Coverage,” available at <http://www.dol.gov/ebsa/newsroom/pr123004.html> (last visited May 26, 2009).

Final Regulations for Health Coverage Portability for Group Health Plans and Group Health Insurance Issuers Under HIPAA Titles I & IV, 69 Federal Register at 78721.

Final Regulations for Health Coverage Portability for Group Health Plans and Group Health Insurance Issuers Under HIPAA Titles I & IV, 69 Federal Register 78722.

Barack Obama Web site, Barack Obama and Joe Biden's Plan to Lower Health Care Costs and Ensure Affordable, Accessible Health Coverage for All, available at <http://www.barackobama.com/pdf/issues/HealthCareFullPlan.pdf> (last visited December 15, 2008)

See, e.g., Pub. L. No. 104-191, sec. 707 (August 21, 1996).

Medicaid Programs: Premiums and Cost Sharing, 73 Federal Register 71,828 (November 25, 2008). See also Pear R. , “New Medicaid Rules Allow States to Set Premiums and Higher Co-Payments,” New York Times, November 26, 2008. The rule implements provisions of the Deficit Reduction Act of 2005. Pub. L. No. 109-171, 120 Stat. 4.

Medicaid Program: Elimination of Reimbursement Under Medicaid for School Administration Expenditures and Costs Related to Transportation of School-Age Children Between Home and School, 72 Federal Register 73,635 (December 28, 2007).

Medicaid Program: Graduate Medical Education, 72 Federal Register 28,930 (May 23, 2007).

Medicaid Program: Coverage for Rehabilitative Services, 72 Federal Register 45,201 (August 13, 2007). Other policies have included: restricting federal reimbursement of case management services, including those for children in foster care, Medicaid Program; Optional State Plan Case Management Services, 72 Federal Register 68,077 (December 4, 2007); limiting Medicaid payments to state and locally run hospitals and other entities, Cost Limit for Government Providers Final Rule, 72 Federal Register 29,748 (May 29, 2007); cutting the types of services that qualify for outpatient hospital services reimbursement, Revised Outpatient Clinic and Hospital Services Proposed Rule, 72 Federal Register 55,158 (September 28, 2007); and providing other technical changes that could have a significant impact on the operation of the Medicaid program, Medicaid Provider Taxes Final Rule, 73 Federal Register 9,685 (February 22, 2008); Departmental Appeals Board Procedures Proposed Rule, 72 Federal Register 73,708 (December 28, 2007). For a more comprehensive discussion about the effects of the Medicaid rules, see Rudowitx R. , “Medicaid: Overview and Impact of New Regulations,” The Kaiser Commission on Medicaid and the Uninsured, #7739, January 2008; Herz E. J. Burrows V. K. , “Medicaid Regulatory Issues,” Congressional Research Service, RL34764, November 26, 2008.

Pear R. , “New Medicaid Rules Allow States to Set Premiums and Higher Co-Payments,” New York Times, November 27, 2008, at A25.

Congressional Budget Office, “Medicare, Medicaid, and SCHIP Administrative Actions Reflected In CBO's Baseline,” February 29, 2008, available at <http://www.cbo.gov/budget/factsheets/2008b/medicaremedicaid.pdf> (last visited May 26, 2009).

Orris A. Soloman J. , “Administration's Medicaid Regulations Will Weaken Coverage, Harm States, and Strain health Care System,” Center on Budget and Policy Priorities, March 4, 2008, available at <http://www.cbpp.org/2-13-08health.pdf> (last visited May 26, 2009).

Exec. Order No. 12,291, 3 C.F.R. § 127 (1981 Comp.), 46 Federal Register 13,193 (February 17, 1981); Furlong S. R. , “The 1992 Regulatory Moratorium: Did it Make a Difference?” Public Administration Review, 55 no. 3 (1995): 254–262.

Letter from Smith D. G. , Director of the Center on Medicare and Medicaid Operations, to State Health Officials, SHO #07–1, August 17, 2007, available at <http://www.cms.hhs.gov/smdl/downloads/SHO081707.pdf> (last visited May 26, 2009). CMS also issued a clarifying letter. Letter from Kuhn H. B. , Deputy Administrator and Acting Director of the Center on Medicare and Medicaid Operations, to State Health Officials, SHO #08–003, May 7, 2008, available at <http://www.ncsl.org/print/health/CMSUpdateSCHIPLetter.pdf> (last visited May 26, 2009).

See Smith , supra note 91.

Id.

Kentucky v. Department of Health and Human Services, Civ. No. 01: 08–00363 (D.D.C. 2008), available at <http://www.nasmd.org/issues/docs/AmendedComplaint0208.pdf> (last visited May 26, 2009).

Statement of Shah D. K. , Managing Association General Counsel, Gov't Accountability Office, “Congressional Review Act: Applicability to CMS Letter on State Children's Health Insurance Program,” testifying before the Subcomm. on Health, Comm. on Energy and Commerce, House of Representatives GAO-08-785T, May 15, 2008, available at <http://www.gao.gov/new.items/d08785t.pdf> (last visited May 26, 2009); Memorandum from M. Rosenberg, Legal Specialist, Congressional Research Service, to Senator Rockefeller J. D. IV, “Applicability of the Congressional Review Act to a CMS Guidance Document Regarding Statutory and Regulatory Requirements to be Used in Reviewing State Requests to Extend Eligibility Under SCHIP,” January 10, 2008, available at <http://rock-efeller.senate.gov/press/CRSMemo01102008.pdf> (last visited December 15, 2008).

Presidential Memorandum of February 4, 2009: State Children's Health Insurance Program, 74 Federal Register 6,347 (February 6, 2009).

English B. , “Health Benefits for Members of Congress,” Congressional Research Service RS21982, September 25, 2007.

Government Accountability Office, “Federal Employees' Health Plans: Premium Growth and OPM's Role in Regulating Benefits,” Report to the Subcomm. on International Security, Proliferation, and Fed. Services, Comm. on Governmental Affairs, U.S. Senate, GAO-03-236, December 2002, at 7, available at <http://www.gao.gov/new.items/d03236.pdf> (last visited May 26, 2009).

Id.

Chapter 89 in Title V of the U.S. Code.

5 U.S.C. § 8902 (2007).

See Governmentt Accountability Office, supra note 98, at 18 (endnote 122).

Government Accountability Office, Federal Employees Health Benefits Program: Premium Growth Has Recently Slowed, and Varies Among Participating Plans, Report to the Ranking Minority Member, Subcommittee on Oversight of Government Management, the Fed. Workforce, and the D.C., Comm. on Homeland Security and Governmental Affairs, U.S. Senate, GAO-07-141, December 2006, available at <http://www.gao.gov/new.items/d07141.pdf> (last visited May 27, 2009).

5 U.S.C. § 8902(i) (2007).

See Government Accountability Office, supra note 103.

National Active and Retired Federal Employees Association, “2008 NARFE Presidential Candidate Survey McCain, Obama Respond to Questionnaire,” 2008, available at <http://www.narfe.org/departments/home/articles.cfm?ID=1630> (last visited May 27, 2009).

National Defense Authorization Act for 1999, Pub. L. No. 105-261; Federal Employees Health Benefits Program and Department of Defense Demonstration Project Final Rule, 65 Fed. Reg. 35,259 (June 2, 2000); Federal Employees Health Benefits Program and Department of Defense Demonstration Project and Other Miscellaneous Changes Final Rule, 65 Federal Register 36,382 (June 8, 2000).

U.S. Const. art. I, § 8 (“The Congress shall have power to lay and collect taxes.”).

The McCarran-Ferguson Act states that “the business of insurance…shall be subject to the laws of the several States.” 15 U.S.C. § 1012 (2007).

Kofman M. Pollitz K. , “Health Insurance Regulation by States and the Federal Government: A Review of Current Approaches and Proposals for Change,” Georgetown University Health Policy Institute, April 2006, at 1, available at <http://www.allhealth.org/BriefingMaterials/HealthInsuranceReportKofmanandPollitz-95.pdf> (last visited May 27, 2009).

For a thorough analysis of a similar proposal, see id., at 8–9.

U.S. Const. art. II, § 1 (“The executive Power shall be vested in the President of the United States of America.”).

Strauss P. , “Presidential Rulemaking,” Chicago-Kent Law Review 72 (1997): 965–986, at 965. Percival R. V. , “Presidential Management of the Administrative State: The Not-So-Unitary Executive,” Duke Law Journal 51 (2001): 963–1013, at 963.

Kagan E. , “Presidential Administration,” Harvard Law Review 114 (2000-2001): 2245–2385 at 2248.

U.S. Const. art. II, § 3.

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Id., at 842.

Id., at 843.

Id., at 865–866.

United States v. Mead, 533 U.S. 218, 237 (2001).

Id., at 235.

Id. (quoting Skidmore et al. v. Swift & Co., 323 U.S. 134, 140 (1944).

“An agency's interpretation may merit some deference whatever its form, given the specialized experience and broader investigations and information available to the agency, and given the value of uniformity in its administrative and judicial understandings of what a national law requires.” Id., at 220 (quoting Skidmore v. Swift, 323 U.S. at 139).

Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 57 (1983).

See Kagan , supra note 114, at 2378; Good Samaritan Hospital v. Shalala, 508 U.S. 402, 417–8 (1993); Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 698–99 (1991); Bowen v. Georgetown University Hospital, 488 U.S. 204, 212–13 (1988). But see Rust v. Sullivan, 500 U.S. 173, 186–87 (1991).

5 U.S.C. § 553 (2000). See also State Farm, 463 U.S. 29, 42.

State Farm, 463 U.S.29, 43.

Id.

Id., at 585.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952).

Id., at 635, 637.

Id., at 636–637.

Id.

Id., at 637–638.

Lincoln v. Vigil, 508 U.S. 182 (1993).

Id., at 192.

Id.

Executive Order 13457 (signed January 29, 2008) 73 Federal Register 6417 (February 1, 2008).

Id.; see also Nicola T. J. Halstead T. J. , Earmarks Executive Order: Legal Issues, Congressional Research Service Report to Congress (February 13, 2008), at 4.

Id., at i.

See Moe Howell , supra note 1, at 165. Fleishman J. L. Aufses A. H. , “Law and Orders: The Problem of Presidential Legislation,” Law and Contemporary Problems, 40 no. 3 (1976): 1–45, at 5; Lowi T. J. , The End of the Republican Era (University of Oklahoma Press, 1995); Silverstein G. , Imbalance of Powers: Constitutional Interpretation and the Making of American Foreign Policy (New York: Oxford University Press, 1997).

U.S.C. Chapter 8 (2007); see also Beth R. S. , Disapproval of Regulations by Congress: Procedure under the Congressional Review Act, CRS Report, October 10, 2001.

Id. (Beth).

Id.

Id.

Presidents Roosevelt, Truman, Kennedy, and Johnson issued numerous executive orders to chip away at the problem of racial discrimination. Despite their opposition, legislators found it difficult to pass legislation nullifying the orders. The only successful congressional response was the Russell Amendment, “which required congressional approval of all funds for agencies set up through executive order that remained for a over a year — a specific attempt to eliminate the Fair Employment Practices Committee, which had been created by Roosevelt's civil rights order.” Yet presidents since Harry Truman found a way around this hurdle by relying on another statute, the 1946 Independent Offices Appropriations Act, to fund civil rights commissions. Therefore, history has shown that Congress, in the 20th Century, has had little success overturning policies created by the president through the administrative process. See Moe and Howell, supra note 1, at 165, 176.