Federal Rate Review Regulation May Exceed Statutory Authority

Today, the Department of Health and Human Services (HHS) issued a proposed regulation that creates a federal health insurance rate review program.

The Obamacare statute requires that the Secretary of HHS develop this program "in conjunction with the states."1

But, despite statutory language that the Secretary cannot act without state cooperation, the new regulation would give HHS the power to review even rate increases of policies in states that choose not to participate.2

Americans for Limited Government is now researching if the doctrine of federal preemption can be used to force this section of Obamacare on states.

1 42 U.S.C.S. §§ 300gg-94(a)(1) and (b)(2)(A) (2010).

2 See page 22 of the preliminary copy of the proposed regulation, (which is to be published in the Federal Register on December 23, 2010).