November 20 Deadline Passes: When Will HHS Release Provider Conscience Regs?

Were you holding your breath until November 20, too? Well, the big day came and went - and no word from the Department of Health and Human Service on their new, expanded "provider conscience" regulations. Advocates widely speculated that the new rule - which has been denounced by women's health groups, physicians' groups, members of Congress, President-Elect Obama, the Equal Employment Opportunity Commission, and by over 200,000 individual commenters filing opposition to the regulations - would be released November 20, 60 days before inauguration, the deadline for major rule changes. But since HHS has classifed this rule as "non-major," it can be released up to 30 days before inauguration. 

Michael Livermore, of the Institute for Policy Integrity, writes at The New Republic:

Any rules that Bush officials deem "non-major" are only subject to a 30-day aging process. Non-major rules are usually defined as regulations with an annual effect on the economy of less than $100 million. Many of the environmental rules under consideration do not easily fit into this category—it's hard to imagine any deregulation that makes it easier to blow up the tops of mountains as not reaching that threshold. But Bush officials may be willing to shoehorn their regs into the definition anyway.

How could President-Elect Obama fight the new rule if is it released in the next 30 days? 

...there are a couple of ways Congress and the Obama administration could overturn these last-minute regulations, but none of them will be easy. Opponents could challenge the "non-major" classification, forcing courts to determine the scope of the judicial power to review agency actions under the Congressional Review Act. Alternatively, Obama could try to re-categorize the rule as "major" and then disqualify it under the original 60-day deadline. But litigants who would benefit from Bush's handouts could come forward and challenge Obama's actions under the Administrative Procedure Act, which limits the power of the president and agencies to change regulations without going through a lengthy formal process. Meanwhile, Congress could step in, either attempting to use its powers under the Congressional Review Act to disqualify Bush's rule, or by passing new laws that would prospectively reverse the rules. But all of these options would take up valuable time, at precisely the moment that the government has many other major issues to tangle with, not least fixing the economy. 

Hope also comes from the Senate: Sens. Hillary Clinton and Patty Murray also recently introduced legislation to block finalization or implementation of the new rule.