Yesterday, six controversial rules that would have reduced federal funding for Medicaid programs were put on hold until at least April 2009. Congress included moratoria on the rules as a provision in the war supplemental bill which President Bush signed into law. (H.R. 2642; see section 7001 for the moratoria.)

The Bush administration had finalized, or was preparing to finalize, the regulations in an effort to cut federal funding for a variety of Medicaid programs administered by the states. The regulations would have cut funding for services that help those with mental illness and intellectual disabilities and for children in foster care, among other services.

Bush had threatened to veto a stand-alone moratoria bill. Fortunately for states and Medicaid beneficiaries, Congress was able to attach the provision to the war supplemental. Regardless, the regulations are so unpopular among congressmen both houses of Congress approved the provision with veto-proof margins.

Passage of the bill means, hopefully, the Bush administration will not be able to monkey around with Medicaid for the remainder of its tenure.

Saturday's New York Times has an article about the White House's new policy setting deadlines for any regulations agencies intend to finalize during the Bush administration. The policy, outlined in a memo sent by Chief of Staff Joshua Bolten, says, "Except in extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008, and final regulations should be issued no later than November 1, 2008."

Bolten issued the memo under the guise of reversing "the historical tendency of administrations to increase regulatory activity in their final months" — commonly known as midnight regulations. In reality, the memo may simply change when the clock strikes midnight in order to insulate potentially controversial rules from disapproval by a new administration.

The Times article quotes White House spokesperson Emily Lawrimore as saying, "We're just making clear that we will continue to embrace the thorough and high standards of the regulatory review process as we near the end of the administration." Lawrimore is referring to the process where the White House reviews regulations before they are cleared to become official policy.

Of course, those "high standards" are usually employed to derail public protections or weaken them at the behest of industry lobbyists. We've seen that recently as the White House blocked the efforts of the National Oceanic and Atmospheric Administration effort to protect the North Atlantic right whale and countermanded EPA's attempt to set a separate standard for ozone that would protect sensitive plants during summer months.

OMB Watch has an analysis of the Bolten memo which also includes a list of high-profile regulations the administration may try to rush through by November 1, for better or for worse (mostly worse). The regulations would:

• Revise the definition of solid waste to allow recycling of hazardous materials;
• Revise the federal standards for roof strength in passenger vehicles;
• Mandate public notification of retail outlets that have received recalled meat and poultry products;
• Allow for permitting exemptions for farms claiming "no discharge" into waterways;
• Revise air pollution control requirements for industrial facilities operating near national parks;
• Permit surface mining operations to place excess material in waterways;
• Allow for reporting exemptions for farms emitting air pollution from animal waste;
• Revise rules implementing the Family and Medical Leave Act;
• Limit the number of hours a truck driver can drive in one day;
• Repeal the ban on carrying loaded guns in national parks.

A few of those sound super, but, as the analysis shows, the devil is in the details.

The analysis also discusses how the Bolten memo may impact the options of the next administration and next Congress in dealing with Bush-era rules.

Click here to read more.

A federal court has sent back (vacated and remanded, in regulatory-speak) to the Bush administration a rule aimed to limit government reimbursement for Medicaid providers. The rule is one of several the administration is attempting to codify in an effort to undermine the entire Medicaid program.

The process by which the Centers for Medicare and Medicaid Services finalized the rule was particularly sneaky, even by Bush administration standards. A New York Times editorial explains:

In a decision issued last week, Judge James Robertson of the Federal District Court in Washington ruled that the administration had overstepped its authority last year with a maneuver "deliberately designed to outfox a clear directive of Congress." The administration was seeking to evade the annoying fact that Congress had enacted a one-year moratorium on the administration's efforts to alter — and in the process cut — Medicaid reimbursements to public hospitals and nursing homes.

Congress had already passed, but President Bush had not yet signed, a broad funding bill that included the moratorium when the secretary of the Department of Health and Human Services rushed through a typo-ridden rule for "emergency display" on May 25, 2007, the very day the moratorium took legal effect. The rule, which had been in preparation for some time, was officially published a few days later. That shifty maneuver was too much for Judge Robertson to swallow. He found ample reason to overturn the rushed-through rule as a violation of Congressional intent.

The ruling should serve as a reminder to Bush administration higher-ups that Congress, not the Executive Branch, is primarily responsible for crafting federal policy. The role of federal agencies is to faithfully enforce the law in the spirit Congress intended, not to undermine it based on personal views — in this case, an ideological aversion to government programs meant to help the needy.

In his opinion, Judge Robertson writes to that effect:

[T]he Secretary treated an act of Congress seeking to control the substantive rules of Medicaid reimbursement as an "emergency," and prioritized issuance of his own rule over Congress's plain intent to prohibit his actions ... Although administrative law has evolved to allow agencies significant leeway to fill in the interstices of broad congressional mandates … control over the substance of the rules that govern the nation has always remained with Congress first. The Executive must comply with the duly enacted commands of Congress.

Yesterday, the Senate passed an amendment to the war supplemental bill that will put the brakes on several controversial Medicaid regulations. The Bush administration has finalized, or is preparing to finalize, the regulations in an effort to cut federal funding for a variety of Medicaid programs administered by the states. (More details on the regulations here.)

The administration developed the regulations under the guise of "fiscal integrity," arguing state Medicaid programs are using loopholes to inappropriately claim federal funds. Bush has threatened to veto the bill. Fortunately, the amendment passed the Senate in a 75-22 vote and also cleared the House by a veto-proof margin.

On May 6, more than 100 hospitals, providers, school districts and public interest groups (including OMB Watch) wrote to Congress in support of the legislation, which will place moratoria on all seven of the regulations until April 1, 2009. The letter says, "Taken together, the impact of these regulations would undermine the viability of our nation's health care safety net and reduce or eliminate access to health care services for many millions of low income patients."

Critics also question the administration's authority to make such major changes to Medicaid. For example, one of the proposed rules would limit the ability of state governments to provide rehabilitation services (such as transitions to independent housing) for people with mental illnesses or developmental disabilities. The Bush administration floated this limitation as a legislative proposal in 2006, but Congress rejected it.

Kudos to members in both chambers voting yea: they stood up to the administration's efforts to hobble state Medicaid programs.

From a government operations standpoint, Congress should also be commended for reestablishing control over issues that are properly within its purview and rebuking the administration's efforts to reinterpret federal law through administrative means.

Posted by Matt Madia, 12:00:40 PM

Tuesday, May 13, 2008

Thursday, May 01, 2008

Thursday, April 24, 2008