ACA Rules Delayed By White House Before 2012 Election

Washington DC


What do Obamacare, environmental regulations, and worker safety rules all have in common? Provisions regarding each were reportedly delayed in 2012, so they would not be factors in the election. The issue was raised at a December meeting of the Administrative Conference of the United States (or, ACUS), an independent agency that uses research to try and improve the administrative process. After the ACUS conference concluded, a report was issued on the Office of Information and Regulatory Affairs (or, OIRA). Part of the reason, officials said, was timing announcements so they would not impact the election.

Presidential rule-making is an integral part of the presidency, and since 1981, OIRA has been directed to “review any draft proposed or final rule or regulatory impact analysis from a covered agency.” OIRA was created within the Office of Management and Budget (or, OMB) in 1980. The study was designed to investigate why since 2011, OIRA review completion times had started to take a noticeably longer amount of time.

In 2004, 626 “significant” rules spent an average of 53 days in review. For 2012, there were 424 “significant” rules to be reviewed, averaging 79 days. In 2013, they counted 212 “significant” rules, and an average review time of 140 days.

OIRA conducted interviews with senior agency employees to get their perspectives on why the length of review time increased between 2012 and 2013. They compiled a total of seven reasons; the first was that some officials in the Executive Office of the President were worried “about the issuance of potentially costly or otherwise controversial rules during an election year.”

Other officials spoke of “Mother-May-I” meetings during the proposal stage. The report explains that some form of pre-submission permission for rules submitted to OIRA has existed for years. However, starting in 2012, a meeting or briefing with the OIRA desk officer was required ahead of a significant rule being submitted for formal review.

The Washington Post recently published analogous information. Officials, speaking on anonymity, said they had been instructed to delay proposals so there could be no impact with voters. Certain provisions were delayed for a year, according to the agencies. According to one former official, “As we entered the run-up to the election, the word went out the White House was not anxious to review new rules.”

The delays for the Affordable Care Act dealt with setting standards for what was “affordable,” and what constituted “essential health benefits.” Combined, the regulations helped to determine who could qualify for a subsidy, and what must be covered by insurance companies. Many of the rules that have been delayed for more than a year by OIRA deal with environmental protections and worker safety. Several Democratic Congress members targeted this issue in a letter to Sylvia Mathews Burwell, OMB’s Director.

They wrote that transparency in the rule making, and review process is essential. “However, OIRA frequently holds onto rules without explaining its concerns, preventing agencies from taking steps to address them. If there are problems with rules or guidance submitted by any agency, those problems should be aired and addressed, not kept hidden behind closed doors.”

In response to the allegations levied against it, Emily Cain, an OMB spokesperson, said the current “approach to regulatory review is consistent with long-standing precedent across previous administrations and fully adheres” to federal rules. Cain said OMB works as quickly as possible, “but when it comes to complex rules with significant potential impact, we take the time needed to get them right.” The Center for Effective Government’s regulatory policy director, Ronald White called it an “overt manipulation of the regulatory review process by a small White House office.”

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