CRS: 92% of ObamaCare Final Rules Circumvent Public Comment

Press Release

The day President Obama took office he promised the American people that transparency would be a "touchtone" of his Administration. A January 21, 2009, White House memorandum stated, "My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government."

However, in implementing a law that affects all 300 million Americans and one-sixth of the American economy, the Obama Administration has circumvented public feedback in 92% of its government rule-making so far. According to a new nonpartisan Congressional Research Service (CRS) report (attached) requested by Senator John Cornyn (R-TX), the Obama Administration has issued 12 final rules pursuant to the Patient Protection and Affordable Care Act (PPACA). Ten of those rules were "interim final rules" (IFRs), which do not allow public notice and comment periods before making new government regulations effective; and one PPACA rule was implemented without even requesting public comments.

To force the Obama Administration to listen to the American people, Senator Cornyn recently introduced the Public Accountability in Health Care Implementation Act (S. 3924, attached). This legislation would promote transparency in the PPACA rulemaking process by requiring federal agencies to finalize IFRs--based on public comment--within 60 days.

Background on the Administrative Procedure Act

According to CRS, "The Administrative Procedure Act (APA, 5 U.S.C. §551 et seq.) establishes the basic requirements for the rulemaking process, and generally requires that federal agencies publish a notice of proposed rulemaking (NPRM) in the Federal Register, give "interested persons" an opportunity to comment on the proposed rule (usually at least 30 days), and after considering the public comments, publish a final rule… The APA also provides certain exceptions to the NPRM requirement. For example, 5 U.S.C. §553(b)(3)(B) permits agencies to issue final rules without a prior NPRM when the agency finds, for "good cause," that notice and comment procedures are "impracticable, unnecessary, or contrary to the public interest." A process known as "interim final" rulemaking can be viewed as a particular application of the good cause exception, in which an agency issues a final rule without an NPRM, but with a post-promulgation opportunity for the public to comment." The agency can review those comments and then issue a final rule, but they generally do not have to and there is no deadline for them to act.

The Need for the "Public Accountability in Health Care Implementation Act"

* The Patient Protection and Affordable Care Act left tremendous rulemaking power to the Obama Administration's political appointees and bureaucrats--and those rules have the force of law. The American people should have right to comment on implementation of the health care law that affects all 300 million Americans and one-sixth of the economy.
* By exploiting loopholes in the law, the Obama Administration has issued at least 11 final regulations without the benefit of public comment generally required under the Administrative Procedures Act .
* After special interest deals, backroom negotiations, and political payoffs were used to pass health care reform, this is just the latest attempt to subvert transparency and honest debate as the new health care reform law is implemented.
* The Obama Administration claims the IFRs are justified to meet tight deadlines, but the Democrats created those problems themselves when they jammed the health care law through Congress with the partisan reconciliation process.
* The Public Accountability in Health Care Implementation Act will force this Administration to listen to the American people and to be transparent in their rulemaking process.
* Whenever the Administration has bypassed public input, the Public Accountability in Health Care Implementation will require the Obama Administration to issue a final rule based on feedback from American citizens, businesses, employers, etc...within 60 days.

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