United States: Congress Poised To Invalidate Agency Guidance Document In Unprecedented Use Of The Congressional Review Act – Could It Provide A Roadmap For Relief For The Health Industry?

The Congressional Review Act (CRA) was long viewed as something of a paper tiger, and for good reason. The CRA requires agencies to submit certain rules to Congress before they go into effect. The CRA also creates a streamlined process for Congress to rescind such rules through the passage of a "joint resolution of disapproval" that is not subject to filibuster in the Senate. However, that rescission process had only been successfully used once between 1996 (the year of the CRA's enactment) and 2016.

That all changed in 2017. During that year, Congress successfully invoked the CRA to rescind 15 different rules, almost all of which were issued shortly before the end of the Obama Administration. The two exceptions were rules issued by the Consumer Financial Protection Bureau (CFPB) prior to the November 2017 departure of its then-Director, Richard Cordray, who had been appointed by President Obama.

Because the CRA establishes a relatively short timeframe for Congress to invoke the rescission process following the publication of a rule, many had assumed that the CRA would return to obscurity for the time being given that the same political party currently controls the Executive and Legislative Branches. But what if publication of a rule is not the only event that can trigger CRA review? The word "rule" as used in the CRA actually is broadly defined to include an "agency statement of general . . . applicability and future effect designed to implement, interpret, or prescribe law or policy . . . ." (Emphasis added.) In other words, the definition of "rule" used by the CRA is not limited to formal regulations promulgated after notice-and-comment rulemaking.

What, then, about a guidance document that an agency issued several years ago yet never submitted to Congress for review under the CRA? The short answer is that if the Government Accountability Office (GAO) determines that the guidance document is a "rule" within the meaning of the CRA, it is the date of GAO's determination—not the date of original issuance—that starts the clock for Congress to invoke the process of rescission under the CRA.

GAO issued such a determination in December 2017 with respect to a CFPB guidance document issued in 2013 involving automobile lending practices. On April 18, 2018, by a vote of 51 to 47, the Senate approved a joint resolution of disapproval rescinding the CFPB guidance document. The House of Representatives is expected to follow suit in the coming days, and President Trump is expected to sign the joint resolution of disapproval.

It remains to be seen what, if any, other guidance documents may garner the congressional attention necessary to invoke the CRA process. However, given the prevalence of guidance documents in the health industry—and the extreme unpopularity of certain such documents—recent events may spark similar efforts to invoke the CRA in the months to come. If the CRA is successfully invoked to overturn the CFPB guidance document, those in the health industry may be well-advised to identify such things as burdensome manual provisions and other sub-regulatory guidance worthy of similar treatment.

This article is presented for informational purposes only and is not intended to constitute legal advice.