Search Penny Hill Press

Tuesday, March 1, 2011

Rulemaking Requirements and Authorities in the Patient Protection and Affordable Care Act (PPACA)

Curtis W. Copeland
Specialist in American National Government

Federal regulations generally start with an act of Congress, and are the means by which statutes are implemented and many specific requirements are established. The Patient Protection and Affordable Care Act (PPACA, P.L. 111-148, March 23, 2010) is a particularly noteworthy example of congressional delegation of rulemaking authority to federal agencies. This report identifies more than 40 provisions in PPACA (as amended by the Health Care and Education Reconciliation Act of 2010, P.L. 111-152, March 30, 2010) that require, permit, or contemplate rulemaking by federal agencies to implement the legislation.

Where new regulations are required in PPACA, this report also describes provisions in the act that prescribe the substance of certain regulations, procedural requirements regarding the development of those rules, and provisions that establish regulatory deadlines. Where PPACA permits, but does not require, certain regulations, the amount of discretion provided to the agencies appears to vary, as well as the implications of that discretion. In some cases, the agencies appear able to decide whether to take any action, and if so, whether that action takes the form of a regulation or some other method of policy implementation (e.g., adjudication, policy statements, guidance, or memoranda). Other sections in PPACA do not specifically require or permit the development of regulations, instead referring to regulations “issued by the Secretary” or “promulgated by the Secretary.” If these sections refer to existing rules, then new regulations may not be needed.

The report indicates that PPACA gives federal agencies substantial responsibility and authority to “fill in the details” of the legislation through subsequent regulations. Although some regulations were required in 2010, it seems likely that other regulations will be issued for years, or even decades to come. Also, although Congress delegates rulemaking authority for a variety of reasons, the manner in which Congress does so can determine who makes those decisions, and in what manner. When Congress requires that a regulation be issued or made effective by a particular date, that it contain certain substantive elements, and that the rule be developed following certain procedures, then the delegation of legislative rulemaking authority is somewhat limited and Congress retains a measure of control over the subsequent policymaking process. On the other hand, Congress grants substantial discretion to the regulatory agencies when it gives the heads of those agencies broad authority to “prescribe such regulations as may be necessary.” Even more discretion may be given to the agencies when Congress permits agencies to decide certain threshold issues. While the regulations are being developed, or after they are issued, Congress and individual Members have various oversight options, including oversight hearings, meeting with agency officials and filing comments, the Congressional Review Act, and restrictions on agency appropriations.

This report will not be updated.

Date of Report: February 18, 2011
Number of Pages: 26
Order Number: R41180
Price: $29.95

Follow us on TWITTER at or #CRSreports

Document available via e-mail as a pdf file or in paper form.
To order, e-mail
Penny Hill Press  or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.