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January 26, 2012
Greve on the HHS Mandate
In contrast to the bizarre argument underway in some forums that the HHS mandate is the Church's own fault or that this is a great victory for individual conscience against oppressive religious institutions, I'd like to think that MOJ's distinctive role in our little corner of the blogosphere is to bring us back to the legal issues in play, since we are, after all, talking about administrative implementation of a federal statute. To that end, Michael Greve has a post at the Liberty Law Blog that spells out the unprincipled and ad hoc means by which the Administration has gone about this whole process:
The Affordable Care Act (ACA) requires certain employer health plans to cover preventive care for women without co-pays or deductibles, “as provided for in comprehensive [but then non-existent] guidelines supported by the Health Resources and Services Administration [HSRA].” ACA §1273 (a)(4). In July 2010, HHS proposed an IFR to the effect that “preventive” care should encompass pregnancy prevention, and it instructed the private Institute of Medicine (IOM) to provide guidance. The IOM invited and heard presentations from such groups as the National Womens Law Center, Planned Parenthood, and the Guttmacher Institute (but not from any religious group). Predictably, the IOM urged inclusion of the full panoply of FDA-approved devices and procedures, including sterilization and so-called “morning-after” and “week-after” pills. (These drugs “prevent” pregnancies after they have begun. Many Christian denominations in addition to the Catholic Church view them as abortifacients.) Within less than two weeks, without further notice or public comment, HHS adopted this position in an IFR and HSRA issued guidelines. 76 Fed.Reg. 46621 (published Aug. 3, 2011), 45 C.F.R. § 147.130; http://www.hrsa.gov/womensguidelines.
Follow the progression: first comes a statutory text of sufficient ambiguity to keep the Catholic Health Association, representing Catholic hospitals, on board in support of the ACA. (Now that it’s been had, one hopes the association has learned its lesson.) Then comes an administrative creep forward and a de facto delegation to a private organization of known disposition, whose perceived authority and expertise provide cover for the bureaucracy. Then comes the wholesale, underhanded adoption of the interim rule.
This “process” has been playing out while Mrs. Sebelius’s office has issued hundreds of waivers for employer health plans that fail to comply with the ACA’s and HHS’s exalted standards, such as “mini-med” plans used by McDonald’s. Without those waivers, the ranks of the uninsured would swell. Hiding the ACA’s inanity is sufficient reason to suspend the legal requirements; First Amendment objections apparently aren’t. And the administration has proceeded by IFR, without the full notice-and-comment rulemaking apparatus of the Administrative Procedures Act. The APA requires “good cause” for IFRs, 5 U.S.C. 553 (b)(B)—most commonly, situations that do not admit of delay (think homeland security). A rule that can be suspended for a year can’t have been that urgent to begin with.
Posted by Michael Moreland on January 26, 2012 at 09:22 AM in Moreland, Michael | Permalink
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I think that when Lisa Fullum described David DeCosse's analysis of the conscience question as "deft" she meant to say "daft." Best to use Spell Check before hitting "send."
Posted by: John Breen | Jan 26, 2012 10:42:57 AM
I agree the Administrative Law issues here are important ones to think about and it is a good question whether HHS has a good argument under the APA for proceeding as it did.
One comment re Greve's phrasing. He writes "The APA requires “good cause” for IFRs, 5 U.S.C. 553 (b)(B)—most commonly, situations that do not admit of delay (think homeland security)." Even if unintentional, that phrasing gives the mistaken impression that IFRs are infrequently used. The truth is the agencies have increasingly resorted to this process; one study I read said 300-400 times a year.
That doesn't say the use of it is correct/good, but it does suggest it is not quite "think homeland security."
Posted by: Susan Stabile | Jan 26, 2012 12:01:11 PM
Or it suggests that agencies are violating the APA. But since this IFR also heedlessly violates the APA for being contrary to law (RFRA most notably), that suggests the Mandate is a decent candidate for flaunting the APA in other ways as well.
Posted by: Matt Bowman | Jan 26, 2012 1:56:18 PM
Susan: You're right, of course, that administrative agencies (under both Democratic and Republican administrations) have fallen into the habit of routinely using and abusing IFRs, but I wouldn't want that to be used as a tu quoque argument here--just because we go along with IFRs in many settings doesn't mean (a) it isn't a problem under the APA, or (b) an IFR here isn't *especially* unjustified.
Posted by: Michael Moreland | Jan 26, 2012 2:45:13 PM
Michael: I tried to be very clear in my comment that I wan't saying that it should be used that way in the final line of the post. My point only was that I thought the way Greve phrased it suggested that an IFR was a rarely used instrument.
Posted by: Susan Stabile | Jan 26, 2012 3:24:58 PM
Does anyone know if any, or many, other IFRs were then accompanied by a one-year delay? Put aside the general skepticism about whether the growing use of IFRs is justified by that many "good cause" emergencies. I have time reconciling the "need for speed" with a delay.
Posted by: joe reader | Jan 26, 2012 4:24:11 PM
Susan: I know, agreed.
Joe: Someone with much more admin law experience than I have would need to answer (or do the research for a good note topic). I believe IFRs have been used by HHS for several implementing rules, including the mini-med waivers and the small employer definition.
Posted by: Michael Moreland | Jan 26, 2012 4:47:32 PM
Joe:
Your question is not quite accurate regarding the sequence (at least as I understand the flow of events).
The interim final rules requiring most health insurance plans to provide preventive services, including contraceptives, were promulgated on August 1 with a narrow defintion of religious employer and with a request for subsequent comment.
What happened the other day (after getting comments) was the announcement of the final rule that did not the change the definition of religious employer from that which was contained in the August 1 version, but which gave religoius employers additional time to comply.
It is still legitimate to raise the question whether it was proper to enact interim final rules on August 1 - whether there really was good cause. But I'm not sure the decision in January (after comment) to give religious employers additional time it alone an argument that the agency was not justified in doing what it did in August.
Posted by: Susan Stabile | Jan 26, 2012 5:30:58 PM
Susan: thanks for response, and mea culpa for the inadvertent implication that the IFR and delay happened together. I did not mean "accompanied" in the chronological sense, only that the IFR was later supplemented by the delay.
My suggestion is that the later development, if warranted, logically undercuts the earlier need for a quicker rule. If the "need to act now" were great enough, then why allow delay for some? Or, if the delay is tolerable, then why not use that time to have a "regular" rule process, rather than use that time for employers to plan compliance with the already-adopted IFR?
Posted by: joe reader | Jan 26, 2012 6:10:07 PM
Joe: The reason i don't think the later development logically undercuts the earlier need for a quicker rule (and, to be clear, I'm not here arguing there was an earlier need for a quicker rule) is that the IFR promulgated in August was far broader than the limited exception granted in January as part of the finalization of the rules. That is, the August rules dealt with the whole array of preventive services, of which contraception is a piece. It seems to me HHS could have determined it was important to get the rule out there addressing things like immunizations and some of the other things covered. Then, in January, having decided not to amend the religious employer definition re contraceptives, could have decided that for that particular service, it was desirable to give entities more time to comply.
Again, I am not taking a position on whether HHS was justified in acting as it did in August, only that I don't think the January action logically undercuts the August 1.
Posted by: Susan Stabile | Jan 26, 2012 9:05:14 PM
Susan - Thanks for clarifying again. I think you've sold me on the scope issue -- the "emergency" has to do with the broader mandate; the year wait is for a smaller subset. That makes sense (putting aside, of course, whether the emergency is real, and substantive exemption issues). The logical contradiction I thought I saw initially would remain only if the affirmative rule could be divided into two rules, so that the narrower part could be de-emergencied. But that does not seem to be the case.
Posted by: joe reader | Jan 30, 2012 11:15:28 AM
