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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

ACA Contraceptive Rule Not Ripe for Review – Yet, Maybe Never?

Posted in Judicial Process, Judicial Review & Remedies

The United States District Court for the District of Columbia has dismissed one of a number of challenges to the Department of Health and Human Services (HHS)’s Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act interim final rule.  The court concluded that the extended effective “effective date” and enforcement safe harbor period coupled with the Administration’s “promise” of further amendments to address the issues presented rendered the challenge in Belmont Abbey College v. Sebelius to be not yet ripe for review.  If the rule is not yet ripe, will it ever be?

Background:  The Patient Protection and Affordable Care Act (ACA) (whatever one may think of the Supreme Court’s decision in NFIB v. Sebelius) provides authority for the Secretary of HHS to require insurers to provide certain levels of protection.  HHS promulgated a final rule (adopting an interim final rule without substantive change) mandating that contraception services be provided without charge or deductible.  The interim final rule (IFR) and final rule set the stage, as discussed previously, for challenges on First Amendment grounds, i.e., that mandating provision of contraceptive services violates a provider’s First Amendment rights, in these cases, the rights of religious organizations to follow their precepts.

Belmont Abbey College, a Benedictine institution, shares the Catholic Church’s view that contraception, sterilization, and abortion are “grave sins” and therefore argues that requiring it to purchase contraceptive services for employees and provide such services to others would violate its religious precepts.  Aside from the complicated First Amendment issues and doctrine, this case presents two administrative law and judicial review problems.  Belmont Abbey claimed also that the regulations were adopted in violation of the Administrative Procedure Act (APA) and the Religious Freedom Restoration Act.

Ripeness:  As a general proposition, the “ripeness” doctrine:  (1) helps prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and (2) protects agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.  Premature harvest leads to a waste of both judicial and administrative resources.

In Belmont Abbey College, the court found that the extended implementation time frame (at least a year), an announced extended enforcement safe-harbor (also at least a year), and the promise of change in the regulations made the case unripe.  None of these factors support dismissing the case on the basis of ripeness.  The timing issues are at least commensurate with the amount of time it would take the court system to resolve the constitutional issues posed by the case, and other cases, with any certainty, but that is less problematic than the uncertainty of changing the rules.

As the court summarized:

At the end of the day, the Court offers no opinion on the merits of the current contraception-coverage regulations or any proposed future ones.  If Plaintiff is displeased by the ultimate regulations, it may certainly renew its suit at that time.  All the Court holds here is that Belmont has no basis to proceed now.

Promises of Change:  Although the White House and HHS announced their “intention” to change the rule, the agencies only issued an advance notice of proposed rulemaking (ANPRM) a month later on March 21, 2012.  The ANPRM announced the “intention … to propose amendments to regulations.”  In candor, the Administration:

intend[s] to finalize these amendments to the final regulations such that they are effective by the end of the temporary enforcement safe harbor; that is, the amended final regulations would apply to plan years starting on or after August 1, 2013.  This advance notice of proposed rulemaking (ANPRM) is the first step toward promulgating these amended final regulations.  Following the receipt of public comment, a notice of proposed rulemaking (NPRM) will be published, which will permit additional public comment, followed by amended final regulations.

Overvaluing ANPRMs:  The court relied in part on the presumption of good faith due to administrative agencies and that presumption is often justified.  In this case, the presumption may be justified, but the indicia of commitment are thin.  An ANPRM is merely the first step in a long regulatory process – it must be followed by a proposed rule and a final rule.  An ANPRM is often thought of (correctly) as being similar to a request for information when the agency simply does not know enough about a subject.

An ANPRM – after the adoption of an  and a final rule – suggests that the Administration acted precipitously in the first place:  if the Administration needs such basic information as requested in the ANPRM, then it had insufficient information to adopt the  and final rule that it now defends.  In some cases, where technology changes the underlying facts, for example, an ANPRM may be needed to inform the Administration of the details of those changes, but no such evanescence is apparent here.

An ANPRM does not reopen a final rule or otherwise affect the final rule.  Although an ANPRM provides notice that an agency is considering action, it is not sufficient notice of a rulemaking for APA purposes and a final rule cannot be based only upon an ANPRM.

Given that the courts will require a lengthy process to resolve with any certainty the First Amendment issues posed by the , with all due respect, the rule should be ripe for review and an ANPRM like the one here should not delay adjudication.  If the rules do change, the courts can apply the law as it then exists.

  • Jimbob

    Where do ANPRM’s come from? Is there any legal significance to or statutory authority for them? After issuing one do you have to issue an NPRM in compliance with Section 553 of the APA?

  • http://www.fedregsadvisor.com/ Leland E. (Lee) Beck

    In response to the commenter’s question, an ANPRM is a generalized notice that an agency is considering promulgating or amending a rule, but is not as precise as a notice of proposed rulemaking (NPRM). The ANPRM is most often used when an agency first considers whether to undertake a rulemaking and simply does not know enough about the area to effectively research the subject. The agency is, always, responsible for doing the research. An ANPRM helps the agency gather information before it issues a proposed rule for public comment.

    There is no “legal” “basis” for an ANPRM – it’s a practice grown up of necessity. It also has no legal effect – there is no requirement that an agency do anything with the ANPRM once it has published it. An NPRM is a logical next step, although an agency should (as a matter of transparency) withdraw an ANPRM if it plans to do nothing.

    The ANPRM (in a hierarchy of general to specific) falls between a general request for information (RFI; which may not even be tied to a regulation) and an NPRM. The Administrative Procedure Act (5 U.S.C. § 553(b)) requires an NPRM or, in certain exceptions, an “interim final rule with request for comments (IFR).”

    In the instance of the HHS completed IFR and final rule, the use of an ANPRM is rather odd, as noted in the original post. HHS either possesses sufficient information for an NPRM or should not have adopted the final rule it adopted in the first place.