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CMS Flexes its De-Regulatory Muscle

News  |  By Christopher Cheney  
   May 31, 2017

'Very Aggressive Deregulation'

CMS is embracing the Trump administration's anti-regulatory philosophy, says Earl Pomeroy, who represented North Dakota as a Democratic congressman from 1993 to 2011 and now works as senior counsel at Atlanta-based law firm  Alston & Bird.

"A theme of this new administration is very aggressive deregulation. This theme is in virtually all facets of the executive branch, and you are certainly going to see it at the Department of Health and Human Services as they take on their responsibilities with the Affordable Care Act. They don't like regulations, and they don't like Obamacare," says Pomeroy, a former president of the National Association of Insurance Commissioners.

The recent policy announcements are part of a burgeoning bureaucratic assault on ACA, says Sam Halabi, JD, an associate professor of law at the University of Missouri School of Law.

"Overall, the fundamental goal is to weaken the mechanisms of the Affordable Care Act. No longer allowing small businesses to purchase health coverage on HealthCare.gov effectively makes it more difficult for small businesses to purchase coverage. Several small-business interest groups have said as much," he says.

The prominent role of CMS in crafting key elements of ACA is a major vulnerability for President Obama's hallmark domestic-policy initiative, Halabi says.

"The Obama-era decisions to delay implementation of the ACA and to afford regulatory flexibility where the language of the statute did not seem obvious opened up the law to those same measures being taken by a hostile administration."

CMS is likely to target several other elements of the ACA for regulatory culling, he says. "Pilot programs that were adopted to improve physician transparency, incentives to meet quality and cost benchmarks, and accountable care organizations were creatures of administrative decision-making, and all of them are vulnerable."

Christopher Cheney is the senior clinical care​ editor at HealthLeaders.

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