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Where’s the final regulation for the contraception mandate waiver?

Senator Mike Enzi wants to know, Where is the contraception waiver final regulation? In a letter to Kathleen Sebelius, Secretary of Health and Human Services (HHS), he says the absence of a final regulation suggests the Obama Administration didn’t follow proper administrative procedure:

To date, the Department has failed to promulgate a regulation to implement all of the policies described in the press release. At a minimum, this suggests that the Department ignored its responsibility to consider and respond to public comments in developing a final rule.

HHS received 200,000 comments on this regulation. Sen. Enzi wants to know if the Obama Administration read and considered them before reaching a conclusion. He wants to know who was involved in the decision to require religious organizations to act in violation of their consciences. And he wants to know how the Administration justified it legally.

We agree with Sen. Enzi that the absence of a final rule suggests that instead of properly considering the comments by 200,000 citizens, the Obama Administration decided to avoid controversy by kicking this explosive issue to sometime after the Presidential election (just as they have done with the Essential Health Benefits definition).

As we’ve said before—this was a political decision.

Normally, when an agency wants to publish a new regulation, they must follow certain procedures required by the Administrative Procedures Act and various other statutes and executive orders.

In order to enact a regulation, an agency generally first publishes a “Proposed Rule” and must allow for public comment.

The agency is then required, by law, to consider those comments as it drafts the “final rule.” The final rule must respond to all relevant arguments made by the commenters. More than that, it must address relevant comments by giving “reasoned explanations” for how it arrived as its policy decisions.
Under normal circumstances, the final rule cannot become effective until 30 days after it is published.

But in this instance the contraception waiver was effective immediately upon publication last August. Under certain circumstances, an agency can make the proposed rule effective immediately—before public comment. An immediately effective proposed rule is called an “interim final rule.”

But whether or not the proposed rule is immediately effective, the agency is still required to receive comments, to read those comment and to consider and respond to every relevant argument those comments make. If an agency does not address every relevant argument, then under the law, they have acted “arbitrarily and capriciously” and the regulation becomes subject to lawsuits declaring it void.

Sen. Enzi also asks HHS whether the White House’s Office of Information and Regulatory Affairs (OIRA) has reviewed the regulation. Under Executive Order 12866, OIRA is charged with reviewing regulations to make sure they have properly made certain required regulatory analyses.

While OIRA’s website does not list the regulation among those it has received for review, Nathan Mehrens, Counsel for Americans for Limited Government and former Labor Department appointee, tells us, “While officially OIRA has 90 days to review regulations it receives, it often reviews agency regulations unofficially before they are submitted for formal review.”

So why have we not yet seen a regulation?

Perhaps it has something to do with the overwhelming number of comments submitted.

By contrast two of Obamacare’s more controversial regulations, the Medical Loss Ratio and Accountable Care Organizations received 95 and 1,320 comments respectively.

Former Labor Department Deputy Assistant Secretary Don Todd (now Director of Research for Americans for Limited Government) tells us that under the George W. Bush Administration, the Labor Department published a union transparency regulation that received 36,000 comments 1,200 of which were unique. It took them six months just to read those comments and to categorize the arguments made in the comments.

How much longer might it take for HHS to finish reading 200,000 comments?

This brings us back to some of Sen. Enzi’s questions. Did HHS properly read and consider 200,000 comments in the period between the comment deadline on September 30, 2011 and HHS’s Press Release on January 20, 2012 (not quite 4 months)? Who was involved in the decision not to exempt non-church religious organizations? And what legal authority does the Obama Administration claim for violating the Constitutional rights of Americans.

On March 1st, Secretary Sebelius is schedule to testify before the House Energy and Commerce Committee. Perhaps by then the Obama Administration will have some answers.


Update (2/13/2012): Last Friday, the Obama Administration issued its rule. The President admitted that they rushed it when he said,

So, last week I directed the Department of Health and Human Services to speed up the process that had already been envisioned. We weren't going to spend a year doing this we were going to spend a week or two doing this.

The Obama Administration has decided not to expand the religious waiver of the mandate. Instead, in an upcoming regulation, the administration will mandate that insurers pay for contraceptives for employees of objecting religious organizations.

But apparently the administration doesn't believe in protecting the religious freedom of individuals engaged in for profit businesses.

And it is not clear how the administration plans to exempt religious organizations that are self-insured. The regulation merely says,

The Departments intend to develop policies to achieve the same goals for self-insured group health plans sponsored by non-exempted, non-profit religious organizations with religious objections to contraceptive coverage.

We're not even sure the Administration knows how to solve this dilemma.

Since the final regulation leaves so many questions, expect Secretary Sebelius' visit to testify before Congress to be lively.