The Government Accountability Office (GAO) issued an opinion on July 15, 2019 telling Congress that recent changes the Administration made to the ACA waiver authority were significant enough to allow for congressional review because it is a new federal “rule.” As a result, it is subject to congressional oversight and requires certain reporting to Congress on the rule’s effect before it can take effect. The Trump Administration has attempted to bypass the regulator process.
The issue revolves around new guidance the Trump Administration issued in 2018 to broaden the Administration’s waiver authority over the Affordable Care Act. The Trump Administration has attempted to give states waivers of the ACA law in a way that would undercut the ACA’s protections. The GAO reviewed the ACA law and how its waiver authority was structured. The letter highlights one example,
“…the 2015 Guidance prohibited approval of a section 1332 waiver of a state plan that made coverage less comprehensive or affordable for vulnerable groups of residents; whereas, the 2018 Guidance provides that while analysis will continue to consider effects on all categories of residents, the revision gives states more flexibility to decide that improvements in comprehensiveness and affordability for state residents as a whole offset any small detrimental effects for particular residents.”
In other words, states can submit changes that will adversely affect some populations (for example people with a certain pre-existing health condition) if they expand coverage, perhaps the policies become cheaper but offer less benefits or mandatory protections.
The GAO concludes that the guidance by the Trump Administration is subject to the requirement that it be submitted to both houses of Congress and the Comptroller General before it can take effect. Congress can overrule a regulation if both the House and Senate agree to a joint resolution under the act, which is unlikely to happen in the Senate but may slow down the Administration’s effort to approve waivers that weaken the ACA.