President-elect Donald Trump and his allies make no secret of their disdain toward federal agencies and their desire to fundamentally disrupt the regulatory state.
The new administration plans to rely on unorthodox health official picks Robert F. Kennedy Jr. and Dr. Mehmet Oz to shape, and remake, healthcare in Trump’s second term, but administrative law experts and health policy analysts expect Trump’s disdain for the prior Oval Office-holder will mirror his first term.
Although many question marks remain as to what healthcare priorities will ultimately catch on, it’s expected Trump will try to reverse Biden-era regulations, as he did during his first term.
That’s where the possibilities unfold.
One avenue for quick recissions of federal rules is through the Congressional Review Act (CRA). The lesser-known federal law enacted during President Bill Clinton’s term allows Congress a short window to overturn final rules with the support of the president.
Lawmakers introduce resolutions of disapproval frequently, but the law is typically a nonfactor except under unique circumstances. After an election when one party is in control of Congress and the White House, the new president has a short time frame to reverse individual rules under the “lookback” period. In 2017, Trump repealed 16 rules, by far the most of any president. Biden followed suit with a few revoked regulations when he took office.
Now, with the executive and legislative branch under Republican rule, Trump will have the opportunity to utilize the CRA once again. He could, theoretically, reverse any rule finalized after Aug. 1, though that date is yet to be determined and certain restrictions may disincentive this behavior.
In Project 2025—a Heritage Foundation-created master plan for the new administration to follow that Trump distanced himself from on the campaign trail despite later appointing many of its contributors to his cabinet—Office of Management and Budget (OMB) Director Russ Vought wrote that Congress should pass the Midnight Rules Relief Act.
This bill allows a president to slash regulations wholesale with a single stroke of the pen by combining regulations in one package, in turn reducing the debate on the floor. Most importantly, the bill could extend the lookback period from August 2024 to then include all of Biden’s final year. Biden’s regulatory agencies rushed to finalize rules in the first half of 2024 to sidestep the CRA, but this bill would amend the CRA and open up a sea of possibilities.
For example, the Centers for Medicare & Medicaid Services alone released final rules imposing mandatory staffing minimums in nursing homes, new managed care wait time and quality rating standards, prohibitions of discrimination in Affordable Care Act (ACA) plans, telehealth and AI, increased protections for people with disabilities and restrictions on broker compensation and new network requirements for behavioral health that could all be in jeopardy if the legislation passes, said Dan Goldbeck, director of regulatory policy for right-leaning think tank the American Action Forum. These rules cost more than $85 billion, the agencies project.
Following Trump’s electoral win, the conservative think tank Economic Policy Innovation Center quickly released a report (PDF) exploring the benefits of the law. It was written by Anthony Campau, former chief of staff and counselor for the Office of Information and Regulatory Affairs for Trump and a Project 2025 contributor.
“My sense is that Republicans would be interested in such a bill,” said Goldbeck. “Being able to save floor time by bundling rules together and addressing a wider pool of Biden regulations—especially some of the major rules that dropped this past spring—would both be attractive items to them.”
Goldbeck agrees with James Goodwin, policy director for left-leaning think tank Center for Progressive Reform, however, that it looks unlikely the bill will pass the next Congress.
“The good news is I don’t see this bill getting pushed through, at least not as long as there’s a Senate filibuster requirement,” said Goodwin. “Ironically, eliminating the filibuster in the Senate would more or less render the CRA—and by the extension the Midnight Rules Relief Act—irrelevant.”
A broad coalition including the Jacobs Institute for Women’s Health and the National Health Law Program oppose the bill.
But even without passing the Midnight Rules Relief Act, Trump can still dramatically change healthcare with the CRA, new rules, legislative efforts and executive orders.
CRA explained
When Trump takes office Jan. 20, chief of staff Susie Wiles is likely to send a memo to all federal agencies to temporarily cease the rulemaking process. Trump and Congress can immediately begin determining how the administration wants to use the CRA.
The CRA allows Trump to speed up the repeal process by bypassing committee hearings and avoiding the Senate filibuster, so a simple majority vote is all that’s required. Each resolution is debated equally by both sides of the aisle for a combined 10 hours.
It’s a tempting mechanism for Trump to employ in healthcare. Out of the 10 most expensive Biden rules likely to fall within the lookback window, five were finalized by the Department of Health and Human Services (HHS).
Some economically significant rules, like annual regulations on Medicare prospective payment, are unlikely to be addressed using the CRA.
But a $1.5 billion regulation requiring group health plans to offer mental health and substance use disorder care on the same level as physical health benefits could be an easy target for a president looking to cut the budget quickly. Another rule provides improved health insurance and paid leave benefits to early childhood educators through the Head Start program.
House Education and the Workforce Committee Chair Virginia Foxx, R-North Carolina, already publicly opposes both rules.
Trump loved the CRA during his first term, choosing to deploy it even for minor rules, but it benefits him to be more tactical this time around.
“Eight years ago, it didn’t seem like there was a coordinated effort in the Trump administration to prioritize what regulations to disapprove,” said Steve Balla, Ph.D., co-director of the George Washington Regulatory Studies Center. “President Trump was willing to sign any resolution of disapproval that reached his desk. I suspect … they'll be much more strategic.”
Both parties normally use the CRA sparingly, partly because they are stretched thin during the first year of an administration. Reversing a rule can also backfire—permanently. The conventionally accepted legal wisdom is that once a rule is reversed through the CRA, it cannot be reintroduced in a future administration in a "substantially the same" way.
“That’s something I think the Biden administration will be thinking about on its way out,” said Leigh Feldman, director at McDermott+. “The risks of finalizing a rule that would prevent a future Democratic administration from pursuing that policy in that way, and it’s something the incoming administration will want to consider as it thinks through whether CRA or regulatory approach is preferred.”
Proposed rules do not fall within the CRA’s authority. In October, Biden proposed a rule requiring health plans to cover over-the-counter contraceptives for free, without cost sharing or requiring a prescription. Under the same category, an ACA rule holding brokers to a higher standard and recalibrating risk adjustment was proposed. It’s unclear whether the administration will be able to finalize these rules in time, but, if they do, it will be subject to the CRA.
The Biden administration also surprised the healthcare industry by proposing a rule to cover anti-obesity medications under Medicare Part D and Medicaid. Trump’s health department will have to decide to trash the proposal or follow through with the plan, throwing a political hand grenade to the incoming administration.
“Regarding GLP-1s and expanded authorization for use, I do not see how we can afford it,” said Paul Mango, deputy chief of staff for policy at HHS under Trump and public adviser to conservative think tank Paragon Health Institute, in an email to Fierce Healthcare. He is also working on the Trump transition team.
“I strongly doubt the new administration will approve,” he added.
Broad approach to healthcare regulations
Beyond the CRA, the new ruling party has options at their disposal.
For any regulation Biden finalized, Trump could propose and finalize a rule that rescinds the old regulation. And, for finalized rules that won’t take full effect in January, Trump could push through rules that delay the implementation of that policy, said Jeffrey Davis, a health policy director at McDermott+.
He said Trump could slow down the TEAM Model, a mandatory bundled payment program affecting hospitals that doesn’t begin until 2026, or the IOTA Model, a kidney transplant model that will start later than expected.
Republicans are already looking to roll back the minimum staffing requirements for nursing homes in an end-of-the-year health package, several media outlets are reporting. This would save more than $22 billion over 10 years and pay for other priorities, like increased doc pay, PBM reform and extension of telehealth provisions.
Other rules to watch are on Medicaid access and eligibility, ambulatory covered services, obstetric services in hospitals, HIPAA privacy and requirements on Medicare coverage for breakthrough drugs, she said. She is also on the lookout for requests for information on burden reduction, a tactic adopted by Trump during his first term.
“It sounds like an oxymoron, but you have to issue regulations to deregulate sometimes,” said Davis. “You have to issue burn reduction regulations. There’s still going to be annual rulemaking that goes into place for Medicare. There’s calendar year rules and fiscal year rules that go out every year.”
Republicans may also attach appropriation riders to bills, which would prohibit an agency from spending money to implement a rule.
“You’ll see dozens of them, I think,” said Balla. “The whole Republican apparatus will be oriented towards nullifying, slowing down and revising Biden-era regulations. You can imagine right-leaning groups will continue to sue agencies to … slow down, revise or stop altogether agency regulations.”
A host of executive orders Trump is eyeing might also have unintended consequences in healthcare, said Dan Mendelson, CEO of Morgan Health by JPMorgan Chase. Mendelson also served as associate director of health for the OMB under Clinton.
Some issues, like tariffs on foreign goods and mass deportations for illegal immigrants, will garner significant focus in the early days of his presidency. He said a tariff on Chinese goods will increase the cost basis for American hospitals, while mass deportations could affect people working in nursing homes and assisted living.
Other priorities, like shrinking federal agencies and reducing waste, fraud and abuse, could be beneficial or have severe outcomes to critical health agencies if not done thoughtfully.
“There is waste in government,” he said. “I think all of us know that. If there are fresh ideas that could be applied to bring more efficiency to government … from my perspective, that’s good. It needs to be done in a way that honors the people who are there and made sure there’s continuity so there are these massive U-turns in healthcare, which can be destructive.”
Less flashy executive orders on the Inflation Reduction Act, state waivers, associated health plans, health savings accounts and ICHRAs are also possible.