Abstract

The Affordable Care Act (ACA) was signed into law a decade ago. Partisanship has limited the number of statutory changes, leaving the law mostly unchanged across the past 10 years. However, the ACA delegated vast powers to the executive branch, which opened the door for significant regulatory policy-making activities (also called “rulemaking”). We collected data on all regulatory actions related to the Affordable Care Act that have been taken since its passage to provide the first exploratory analyses of both the public law itself and the ensuing rulemaking activities. We also provide illustrative examples of two controversial issues: short-term limited-duration insurance plans and contraceptive coverage for women. Despite relative statutory stasis, regulatory actions have continued to shape the implementation of the Affordable Care Act. Both the Obama and Trump administrations have taken advantage of a vast delegation of policy-making power. Importantly, regulatory policy making holds the potential to yield significant changes depending on the policy goals of the presidential administration. Scholars, policy makers, and the public are well-advised to pay attention to ACA-related rulemaking activities. Moreover, “quasi-rulemaking” (i.e., the use of agency guidance as a policy tool) remains largely unexplored but could indicate an even greater regulatory enterprise than illustrated here.

By almost any measure, the US Congress is doing less than it used to (Volden and Wiseman 2014). Yet, even when compared to the overall slow pace of statutory lawmaking in recent years, health policy making in Congress stands out as “far more gridlocked than policy making in most other areas” (Volden and Wiseman 2011: 227). This congressional inaction has posed particular challenges for the Affordable Care Act (ACA). Due to the unorthodox nature of the ACA's final passage in Congress, after Democrats had lost their filibuster-proof majority in the Senate (Haeder 2012; McDonough 2011), the statute did not benefit from the tidying up of drafting errors and the final reduction of harmful ambiguities, which typically occur when a statute of this magnitude is passed. Moreover, subsequent to its passage, the intense partisanship surrounding the ACA has provided few opportunities to fix the technical and substantive shortcomings via the statutory policy-making process (Oberlander 2016; Rocco and Haeder 2018).

Indeed, over the past decade, the only statutory actions taken have been to scale back certain provisions of the ACA. Yet, while Congress has been able to chip away at the edges of the ACA, its major pillars, such as the expansion of the Medicaid program and insurance market reforms, remain largely intact. In terms of the statutory alterations that have occurred, these changes, which are now part of public law, may be seen as minor in comparison to the wholesale transformations suggested by the numerous bills introduced over the past decade to scuttle the law (Rocco and Haeder 2018). For instance, Congress pushed back numerous times the implementation of the 40% excise tax on high-cost employer-sponsored health plans, the so-called Cadillac tax (Warshawsky and Leahy 2018), until it was finally repealed in 2019. Another example is the Community Living Assistance Services and Supports Act or CLASS Act, a voluntary long-term care insurance program, which died a quick death via a statutory change in 2013, but only after the Obama administration had already abandoned the program (Saldin 2015). And, most significantly, Congress eliminated—that is, set to zero—via statute the individual shared responsibility penalty, which reopened the door to litigating the constitutionality of the individual mandate itself (Keith 2019c).1

Despite these shifts, the ACA on the books today is largely the same in its statutory content as the bill that was signed into law a decade ago. Yet, this relative stasis masks a great deal of policy change that has occurred since 2010. That change, however, has not been of the statutory variety; instead, it has emerged via the regulatory pathway. Put differently, faced with congressional policy-making inertia, the Obama and Trump administrations have again and again employed the federal bureaucracy, and the delegated discretionary policy-making authority provided by the ACA, to move the policy needle in their direction.

Below, we briefly outline some of these actions over the past decade. We focus, in particular, on the regulatory policy-making activity of public-sector agencies with regard to the ACA. In doing so, we provide the first comprehensive overview of the rulemaking activities by the Obama and Trump administrations based on a new data set containing the universe of regulatory actions triggered by the ACA. These data allow us to illustrate the large amount of policy-making activity going on “under the hood” of the ACA. We also include a brief look at two rulemaking examples that illustrate the significant policy alterations made possible via the regulatory process based on the administration in power. We conclude by summarizing our findings and by highlighting the need for additional scholarship on the ACA and the regulatory process.

The Affordable Care Act and Executive Action

In the years immediately following the ACA's passage, rampant partisanship and ideological divides dominated its implementation (see Haeder 2020). Faced with these challenges, the Obama administration frequently drafted the bureaucracy to help achieve its ACA-related policy goals. In doing so, it followed well-established theory suggesting that presidents will frequently employ the power of the administrative state to achieve their policy aims (Moe 1985; Nathan 1976; Rudalevige 2009; Haeder and Yackee 2015a). Moreover, the fact that the ACA provided broad implementation discretion to various executive branch agencies assisted in these efforts considerably (Thompson, Gusmano, and Shinohara 2018; Richardson 2019). For example, one of the most crucial applications of this discretion has come in the wake of the US Supreme Court decision to make the Medicaid expansion component optional to states (Haeder and Weimer 2013; Richardson 2019). In reply, the Obama administration's US Department of Health and Human Services (HHS) negotiated with numerous conservative states and offered broad Section 1115 waivers to entice them to expand their Medicaid programs (Jarlenski et al. 2017; Weissert, Pollack, and Nathan 2017 ; Wright, Potter, and Nattinger 2016). And while the Obama administration was more than happy to make concessions on issues such as insurance premiums and wellness incentives, it drew a line in the sand with regard to compromises on Medicaid block granting and Medicaid work requirements (Dinan 2014).

The Trump administration has followed a similar path, albeit with rather different policy objectives in mind. That is, the Trump administration has eagerly employed the administrative tools of the presidency to reshape the ACA in a more conservative fashion. For instance, it has used the HHS to limit open enrollment periods and to sharply scale back outreach and enrollment funding (Thompson, Gusmano, and Shinohara 2018; Richardson 2019; Anderson and Shafer 2019). At the same time, the Trump administration has also sought to transform the Medicaid program by adding new work requirements for Medicaid beneficiaries (Thompson, Gusmano, and Shinohara 2018; Richardson 2019; Haeder 2019).

Lawmaking by Administrative Means: Regulatory Policy Making

While the aforementioned executive actions across two presidential administrations have been empirically recognized by scholars, we argue that much less attention has been paid to a crucial tool at the president's disposal to achieve his ACA policy goals: regulatory policy making (also called rulemaking). This is surprising because rulemaking has become increasingly recognized by policy and administration scholars as pivotal to the policy-making process in general. Indeed, the “massive policy output created by public sector administrative agencies” (Haeder and Yackee 2015a, 508) has led some observers of the US policy-making process to conclude that policy making today is primarily administrative rather than legislative. By one estimate, 9 out of 10 US “policies” are the results of the actions of administrative agencies (Warren 2020). Yet, notably, much this activity occurs outside the public's and the media's attention (Haeder and Yackee 2015b).

Rulemaking serves a crucial role in US policy making because Congress routinely delegates the task of filling in the policy details of statutes to public bureaucrats (Golden 1998; West 2004; Coglianese 2006; Wagner 2010; Yackee 2006, 2012, 2019; Kerwin and Furlong 2018). For decades the process of issuing rules has been guided by the Administrative Procedure Act of 1946 (APA) (Rosenbloom 2018). Generally, agencies initiate regulatory actions by formulating a draft regulation, also referred to as a notice of proposed rulemaking (NPRM).2 This draft is then made available to the public to solicit comments by stakeholders and other interested parties. Agencies must take into account this public feedback before finalizing a regulation in a final rule, which carries the force of law. The president, via the Office of Information and Regulatory Affairs, is heavily involved in this process for all cabinet-level agencies (Haeder and Yackee 2015a, 2018). There are exceptions, however, to this general process. For instance, under the “good cause” exemption of the APA, which occurs when the standard rulemaking process is “impracticable, unnecessary, or contrary to the public interest,” agencies may skip the initial steps of issuing an NPRM and instead directly issue an interim final rule, which then has a retrospective commenting period (Kerwin and Furlong 2018). Furthermore, not all NPRMs are ultimately finalized, as they are sometimes merged with others, withdrawn, or simply left at the draft stage indefinitely.

As mentioned above, Congress regularly delegates considerable authority to make policy decisions by providing new rulemaking authority to administrative agencies. The ACA is no different in this regard. Indeed, it decentralizes clear and critical lawmaking powers to numerous federal agencies. We have documented this pattern by focusing on the statutory text itself.3 For one, the word secretary is used more than 3,000 times to refer to 11 different cabinet agency secretaries (see table 1). This suggests that administrative agencies are being employed frequently in the statute. Moreover, commonly used phrases that indicate the delegation of power to government agencies (Haeder and Yackee 2019) are employed more than 1,000 times in the ACA's public law text (see table 1 for several examples of these). While only indicative of the extent of delegation, even this cursory textual examination of the ACA illustrates that Congress provided a large role for administrative agencies within the implementation of the ACA.

So how extensively have the Obama and Trump administrations resorted to rulemaking to implement the ACA? The two bills that together make up the ACA, as amended, combine for a statutory length of 961 pages, or 474,622 words. In a separate analysis, we identified all of the rules that have been initiated by federal agencies using the ACA for their statutory authority. We identified 265 rulemaking activities indicated by their unique regulation identification number.4 Counting only final or interim final rules issued by the end of 2019, these rulemakings combine for a regulatory policy length of almost 9,000 pages, or more than 9,000,000 words. That is, each page in the ACA is matched by more than 9 pages of regulations, while each word in the ACA is matched by more than 19 words in regulations. Furthermore, we find these patterns even though about a quarter of the initiated rulemaking activities are not yet finalized by January of 2020 or have been formally abandoned (i.e., withdrawn before finalization). Unquestionably, these are rough indicators that blur the underlying intricacies and nuances. Nonetheless, they highlight the vast regulatory policy-making enterprise triggered by the ACA.

To further explore the 265 rulemakings initiated to implement the ACA to date, we collected additional data from the federal government's regulatory information repository, Reginfo.gov, which includes information about all regulatory actions planned or conducted by the federal government. In terms of agencies, the largest initiator of ACA-related regulatory activities was the HHS with two-thirds of all rulemakings, followed by the Departments of Treasury (17%) and Labor (11%), with the remainder distributed among the Departments of Defense, Justice, Veterans Affairs, the Social Security Administration, the Office of Personnel Management, and the Equal Employment Opportunity Commission. In terms of subcabinet level agencies, rules were overwhelmingly initiated by the HHS's Centers for Medicare and Medicaid Services (130 rules), followed by Treasury's Internal Revenue Service (43) and Labor's Employee Benefits Security Administration (25).

At the rule level, only 132 of the 265 regulatory actions followed the “standard” APA procedures. Instead, 84 rules were issued directly as interim final rules. Moreover, 35 of the 265 rules were merged with other rules, and 37 rules were ultimately withdrawn. Of the 132 final rules, more than half had a delayed effective date—meaning that the date that they took effect was pushed back for some reason. About a quarter of the 265 regulatory actions included a statutory deadline, 93 were determined as “major” or important. Twenty-two of the 265 regulatory actions triggered a regulatory flexibility analysis, which is required for rules that may have a large burden on smaller entities such as small businesses, 93 were deemed economically significant, and 116 fell into the “other significant” category, as determined by agency rule writers. Pursuant to EO 13132, 28 rules were determined to have substantial effects on the distribution and responsibilities of power between federal and state governments.

The distribution of regulatory actions over time, as identified by their unique regulation identification number, is illustrated in figure 1. Several observations stand out. First, the Obama administration extensively resorted to interim final rules in 2010, the first year of implementation of the ACA. This is likely a direct result of short timetables and resource limitations during the early implementation of the ACA. However, we note that there is also a steady stream of interim final rules that continues into 2019. Second, a large number of regulatory actions were merged in 2011. Again, this is likely the result of the hectic pace and pressure to initiate rulemaking activity quickly in the early years of the ACA. With time, agencies were able to consolidate regulatory actions and bring together similar regulatory initiatives. Third, rulemaking finalization spiked from 2012 through 2014, a time period in which many of the large-scale provisions of the ACA, like the marketplaces and Medicaid expansion, were implemented. Fourth, there were a number of rule withdrawals, but it is worth noting that 15 of the 37 withdrawals occurred during the Trump administration. Finally, ACA-related rulemaking experienced a considerable slowdown under the Trump administration. While we might expect some reduced rulemaking activity a decade after the passage of a major statute, questions emerge as to whether this low level of activity comes as a result of the Trump administration's opposition to the ACA in particular or to rulemaking trends in general.

ACA Rulemaking and the Reversal of Policies

With the aggregate-level picture of ACA rulemaking activity coming into focus above, we next turn to two prominent examples to illustrate how agency rulemaking power may be used differently by presidential administrations to pursue their policy-making goals. Specifically, we highlight the regulations attached to (1) short-term limited-duration insurance plans, and (2) contraceptive coverage for women. In both cases, the content of the policies shifted significantly between rulemaking activities in the Obama administration and those later, during the Trump administration—while the statutory delegation language within the ACA remained the same.

Short-Term Limited-Duration Insurance Plans

One of the crucial goals of the ACA was to expand coverage in an affordable manner to millions of Americans. The ACA envisioned various vehicles to achieve this goal including the expansion of Medicaid, allowing children to stay on their parents' insurance plan until age 26, temporary high-risk pools, and the establishment of marketplaces in conjunction with a number of insurance market reforms (Callaghan and Jacobs 2013; Haeder, Weimer, and Mukamel 2019; Rigby 2012; Haeder 2013; Béland, Rocco, and Waddan 2016). One of the major concerns of the Obama administration, however, was the possibility that short-term limited-duration insurance plans might divert enrollment away from the ACA marketplaces. They might do so because they generally offer coverage at a lower price. However, lower premiums come with the trade-off of skimpier benefits and medical underwriting as compared to ACA-compliant plans that are required to provide a set benefit package (the ACA's Essential Health Benefits) with community-rated premiums. Moreover, short-term plans are also exempt from important consumer protection established by the ACA, such as annual and lifetime coverage limits or medical loss ratios. If enough young and healthy individuals exited the ACA's marketplaces for short-term plans, then it may place the marketplaces in peril—with not enough young and healthy individuals to balance out the costs associated with insuring older and sicker individuals (Keith 2019d). Thus, concerned about adverse selection and the potential ensuing premium increases in the ACA marketplaces, the Obama administration issued a final rule in 2016 that limited short-term insurance products to 90 days, restricting them to a temporary stopgap for individuals without coverage (Keith 2019d).

After Republican efforts to repeal and replace the ACA failed very publicly in Congress, the Trump administration initiated a number of regulatory actions officially hailed as providing “relief” to Americans from the ACA.5 The main goal of this deregulatory package was to establish a secondary insurance market with significantly fewer benefits and protections for consumers that ran parallel to the more regulated, ACA-compliant coverage version. These efforts included a reversal of the Obama administration's definition of short-term limited-duration insurance products.6 Arguing that it wanted to offer Americans a lower-cost alternative to ACA-compliant plans, the Trump administration wrote new interim regulations in 2017, which were finalized in 2018. Both actions increased time limits to 364 days and allowed the policies to be renewed twice, essentially making them effective for three years (Keith 2019d). Practically, this established a notable competitor to ACA-compliant insurance products sold through the marketplaces. While the new rules were challenged in court, they were ultimately upheld in favor of the Trump administration (Keith 2019d). However, a number of states have subsequently moved to limit or even wholly prohibited the sale of short-term insurance products, while others have expanded access to such products (Norris 2020).

Contraception Coverage for Women

Another example of the attempt of presidents to shift policy in their favor via rulemaking comes in the form of the ACA's contraceptives mandate. Under Section 2713 of the ACA, most insurance plans are required to provide free preventive care and screenings. The details of this policy were delegated by the statute to federal agencies to be established via the regulatory process. In 2012, the Obama administration attempted to comply with this requirement by issuing regulations that offered access to affordable contraception for millions of women, while also not offending the millions of Americans that objected to contraception as a result of their religious beliefs. To achieve these competing goals, the Obama administration's rules required most insurers to cover all contraception methods approved by the US Food and Drug Administration without cost sharing, while exempting places of worship, if they objected to such benefits (Keith 2019e). However, the regulation did not extend this exemption to other religious entities or enterprises, like hospitals and schools. Instead, it provided accommodations to religiously affiliated nonprofits by allowing them to express their opposition to such coverage in the form of “self-certification.” The self-certification process would then assign the responsibility of covering the contraception costs to their insurer, thereby removing the provision of the services from the religious entities while still allowing women to have free access to the services. In the aftermath of the Supreme Court's Burwell v. Hobby Lobby decision in 2014, this arrangement was extended in 2015 to “closely held for-profit entities.” However, a number of religious nonprofit organizations continued to disagree with the accommodation approach and instead sought to be wholly exempted from the coverage requirement resulting in the Supreme Court case Zubik v. Burwell in 2016. The Court instructed the federal government and the litigants to find an accommodation, which was still unresolved as President Obama left office.

The Trump administration initiated a reversal of the Obama-era policies on preventive services and contraception for women and issued a set of interim final rules in 2017. These regulations vastly expanded the range of entities eligible for exemptions from the contraception mandate based on their religious beliefs or other moral convictions (Keith 2019e). The interim final rules also opened an opportunity for public feedback as part of a public commenting period. After taking more than 100,000 comments, the Trump administration's HHS moved to finalize the rules without any substantive adaptations in late 2018 (Keith 2019e). Both the interim and final rules have led to a number of lawsuits that remain unresolved.7 In early 2020, the Supreme Court agreed to hear arguments on the Trump administration's policies, thus setting up yet another highly anticipated Supreme Court confrontation on an ACA-related regulatory policy-making action.

Conclusion

The passage of the ACA was a landmark health and health care policy-making event (Blumenthal and Morone 2010). In the ensuing decade, despite relative statutory stasis, a great deal of policy-related action regarding the ACA has taken place within the regulatory sphere. Many of these regulations have addressed technical and substantively important policy-making topics. Moreover, in several areas, the change in presidential administration was accompanied by substantive changes in regulations, which suggests the vast policy-making power of federal agencies in the area of health.

Yet, presidents, of course, are not wholly unconstrained in their ability to shape public policy via the regulatory process. Presidents in collaboration with their cabinet agencies have to walk a procedural and substantive tightrope to obtain their preferred policies. For one, they have to follow the process outlined by the APA or open themselves up to legal challenges through the court system that could scale back or even reverse their policies. Similarly, presidents and agencies have to be mindful not to stray too far from the delegated powers assigned to the agencies in statutes, or they, again, open themselves up to legal challenges. As our contextual examples show, the courts often play an important role in policing the regulatory process as well as providing a nonlegislative check on the executive's ability to use administrative policy making to accomplish its goals when it comes to the ACA.

While we see the perspective above as an important corrective on the often legislative- and federalism-centric scholarship on the ACA (see Haeder 2012, 2020), our analysis and perspectives here are necessarily constrained. In particular, our analysis has been confined to federal rulemaking. Yet, we readily submit that the ACA relies extensively on a large number of public and private partners to implement many of its policies.

Another limitation of our analysis is its focus on the “typical” ways in which government agencies issue rules. And, while we see our treatment as more expansive than many, especially in its inclusions of a discussion of interim final rules, it is still left wanting. In particular, while we have focused mostly on the notice and comment process, we have not studied its close cousin, quasi-rulemaking (Gluck, O'Connell, and Po 2015: 1803), or, as it is more commonly known, agency rulemaking via the guidance document process (Haeder and Yackee 2020; Yackee 2020). Guidance documents (also called guidance statements or guidance) are highly diverse agency policy-making tools and include everything from “policy statements, training manuals for internal agency use, compliance guides, advisory opinions tailored to individual case facts, and memoranda from agency leaders providing direction to agency staff members” (Melnick 2017). Agencies often value the increased flexibility from this unorthodox approach to rulemaking, which has far fewer procedural requirements, during the implementation of public policy. Not surprisingly, guidance documents are believed to have played a major role in the implementation of the ACA (Haeder 2014; Bagley and Levy 2014).

Going forward, scholars would be well advised to pay close attention to all forms of rulemaking activity in their analyses of the ACA or other health care statutes. That is, it is important for scholars take a closer look “under the hood” to better understand the true extent of health policy creation and implementation.

Notes

1.

In the end, this change could prove to have far-reaching, albeit unanticipated, consequences if the ACA individual mandate is found to be unconstitutional and inseverable (Keith 2019a).

2.

At times, agencies take the additional step of issuing an Advanced Notice of Proposed Rulemaking (ANPRM), which proceeds an NPRM and gathers public feedback even earlier in the regulatory formation process (Nelson and Yackee 2012, Yackee 2012).

3.

Here and for the rest of the article we use the Patient Protection and Affordable Care Act (Public Law 111-148) as amended by the Health Care and Education Reconciliation Act of 2010 (Public Law 111-154). The document used is posted to the House of Representative's website and can be found at housedocs.house.gov/energycommerce/ppacacon.pdf.

4.

To identify these rules, we conducted a number of searches on Reginfo.gov, the website maintained by Office of Information and Regulatory Affairs to provide an overview of the regulatory actions undertaken by the federal government. We focused on all rule initiatives that listed the ACA for all or part of its statutory authority. Data were accessed on January 2, 2020.

5.

This action also comes on the heels of Executive Order 13765, Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal, which President Trump signed on Inauguration Day.

6.

It also included the vast expansion of so-called Association Health Plans (Keith 2019b).

7.

For instance, the courts found that the Trump administration violated the requirements of the APA by issuing interim final rules without “good cause” and that neither the ACA nor the Religious Freedom Restoration Act delegated the authority to issue the rules (Keith 2019e). The set of final rules also was blocked from enforcement by the courts (Keith 2019e). Notably, another court case has led to a nationwide injunction against the contraceptive mandate in its entirety (Keith 2019d).

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