How Best to Monitor Health Care

Republican senators Coburn, Cornyn, and Hatch have been taking a careful look at the implementation of the new health-care law using an interesting mechanism — the Congressional Research Service. The nonpartisan and very diligent CRS has recently responded to two requests, one by all three senators, another by Cornyn, to look at the questions of whether the administration is hitting its deadlines, and what mechanisms HHS is using to do issue new rules.

According to CRS, HHS has missed seven deadlines thus far, and may have missed an additional four, meaning that it has missed one third of its deadlines thus far, and may have missed as many of half.

Politico’s Pulse spoke to the HHS press shop about the study and reported back that the deadlines missed were mostly minor, and that HHS missed their marks by relatively short time spans. Still, as the Pulse put it, the missed deadlines are “not nothing.”

The Cornyn request shows that one of the ways in which HHS is meeting deadlines — to the extent that they are — is via a relatively non-transparent process, namely the use of Interim Final Rules (IFRs).

According to the Cornyn-requested report, of the twelve final rules issued thus far as part of the Patient Protection and Affordable Care Act (PPACA), ten were IFRs, which allow rules to become effective without going through normal notice and comment periods, and one of the rules was implemented without a comment request altogether. Cornyn has also introduced legislation requiring that the administration take comments on all of the new health law’s many implementing regulations.

It’s admirable that Coburn, Cornyn, and Hatch are using the tools at their disposal to look at these important implementation questions, but the use of CRS to do the digging also shows how handicapped members of the minority are when it comes to investigatory tools.

CRS’s research uses mainly publicly available material, which is one of the reasons that HHS shop was able to feed the Pulse information about behind-the-scenes activity that was not publicly available, minimizing the CRS conclusions to some degree. If the Republicans were to gain the gavel in one or both chambers they would have far more investigatory capabilities, including the ability to call witnesses and subpoena information on behalf of committees, as well as higher priority in requesting GAO investigations or CBO studies. These additional tools will give GOP lawmakers far more power to watch over HHS’s attempts to implement the unwieldy new law.