November 20 Deadline Passes: When Will HHS Release Provider Conscience Regs?

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November 20 Deadline Passes: When Will HHS Release Provider Conscience Regs?

Emily Douglas

November 20 came and went, with no mention of the expanded provider conscience regulation from the Department of Health and Human Services. Does this mean the rule change is dead? Doubtful.

Were you holding your breath until November 20, too? Well, the big day came and went – and no word from the Department of Health and Human Service on their new, expanded "provider conscience" regulations. Advocates widely speculated that the new rule – which has been denounced by women’s health groups, physicians’ groups, members of Congress, President-Elect Obama, the Equal Employment Opportunity Commission, and by over 200,000 individual commenters filing opposition to the regulations – would be released November 20, 60 days before inauguration, the deadline for major rule changes. But since HHS has classifed this rule as "non-major," it can be released up to 30 days before inauguration. 

Michael Livermore, of the Institute for Policy Integrity, writes at The New Republic:

Any rules that Bush officials deem "non-major"
are only subject to a 30-day aging process. Non-major rules are usually
defined as regulations with an annual effect on the economy of less
than $100 million. Many of the environmental rules under consideration
do not easily fit into this category—it’s hard to imagine any
deregulation that makes it easier to blow up the tops of mountains as
not reaching that threshold. But Bush officials may be willing to
shoehorn their regs into the definition anyway.

How could President-Elect Obama fight the new rule if is it released in the next 30 days? 

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…there are a couple of ways Congress and the
Obama administration could overturn these last-minute regulations, but
none of them will be easy. Opponents could challenge the "non-major"
classification, forcing courts to determine the scope of the judicial
power to review agency actions under the Congressional Review Act.
Alternatively, Obama could try to re-categorize the rule as "major" and
then disqualify it under the original 60-day deadline. But litigants
who would benefit from Bush’s handouts could come forward and challenge
Obama’s actions under the Administrative Procedure Act, which limits
the power of the president and agencies to change regulations without
going through a lengthy formal process. Meanwhile, Congress could step
in, either attempting to use its powers under the Congressional Review
Act to disqualify Bush’s rule, or by passing new laws that would
prospectively reverse the rules. But all of these options would take up
valuable time, at precisely the moment that the government has many
other major issues to tangle with, not least fixing the economy. 

Hope also comes from the Senate: Sens. Hillary Clinton and Patty Murray also recently introduced legislation to block finalization or implementation of the new rule.