Patient Protection and Affordable Care Act
Beware the Rush to Presumption
The Patient Protection and Affordable Care Act (ACA) of 2010 is generating numerous new regulations that will significantly affect the way Americans access health care. But a new study by Jerry Ellig of the Mercatus Center and Christopher Conover of Duke University finds that in 2010, in the rush to implement key regulations for the ACA, agencies sped through the process of regulatory analysis. When compared to regulatory analysis for economically significant regulations in previous years, the regulatory analysis accompanying the ACA rules was substantially lower quality and produced poorly substantiated claims about the ACA's benefits and costs.
In this respect, the ACA regulations resemble the Bush administration’s first major homeland security regulations. Both reflected a president’s signature high-priority issue, but both were accompanied by low-quality regulatory analysis that reads more like an attempt to justify, rather than inform, decisions.
Ellig and Conover produced three working papers and two short policy briefs analyzing the shortcomings of the analysis of the ACA regulations and recommend ways to reform the regulatory process to encourage the use of better regulatory analysis that improves rulemaking in the future.
IN THE NEWS
"Christopher Conover and Jerry Ellig of the Mercatus Center at George Mason University, in a trio of forthcoming papers, systematically examine every rule issued to date to create the new health-care entitlement...They conclude that 'the federal government used a fast-track process of regulatory analysis that failed to comply with its own standards, and produced poorly substantiated claims about the ACA's benefits and costs'—including an upward bias for benefits, a downward bias for costs, and numerous material omissions. Little wonder for a law that contains the phrase "the Secretary shall" 1,563 times."
- "Badly Written Bad Rules: New studies show the quality of federal regulation is plummeting," The Wall Street Journal, December 28, 2011
"Agencies are generally rewarded and expected to get regulations out rather than being rewarded for making the right decisions or using good analysis to make decisions."
- Jerry Ellig interviewed on The Federal Drive with Tom Temin, "Institutional problems get in the way of regulation analysis," Federal News Radio, January 3, 2012
"First, [the federal government] decides what it wants. Then it writes a regulation. Then it does an analysis to justify the regulation. In other words, a procedure of “ready, fire, then aim. This disoriented approach helped to bring about many of the more than 165,000 pages of federal regulations, close to 20,000 added in the past few years, according to the Mercatus Center at George Mason University."
- Tait Trussell, "How Regulations Work: Ready, Fire, Aim!" Front Page Magazine, January 5, 2012
“Based on the analysis produced for these regulations, we can’t tell [how many Americans will benefit from the ACA]—and neither can the federal government.”
- Jerry Ellig Q&A, "Affordable Care Act Study Shows Billions of Dollars In Hidden Costs," CNBC.com, January 9, 2012
Interim Final Rules Report Cards
Research from these working papers utilized the methodology of the Mercatus Center's Regulatory Report Card project
The study includes three working papers and two Mercatus on Policies that are available by scrolling down the page. Click here for a brief overview of the key findings.
Regulatory Studies Program Contact
Program Associate for Regulatory Studies