The Patient Protection and Affordable Care Act of 2010: Rulemaking the Shadow of Incentive-Based Regulation

While legislators, scholars and mainstream observers are focused on the intense debates surrounding the constitutionality of the Patient Protection and Affordable Care Act’s individual mandate, the Department of Health and Human Services and other agencies are proceeding apace in promulgating rules to implement the law’s other requirements. Congress’s substantial delegation of administrative authority to HHS and other agencies will provide a second key area for constitutional challenges after the U.S. Supreme Court resolves the initial lawsuits based on the individual mandate. Between facial constitutional challenges to the Affordable Care Act and lawsuits based on defects in agency rules or the rule making process lies the significant discretionary area in which the Secretary of HHS, and others, will make the most important implementation decisions. This Article provides agencies guidance for shaping the rules that Congress clearly intended them to adopt and implement, but which courts are less likely to scrutinize. This article argues that (1) Congress demonstrated a strong intent for private enforcement of the Affordable Care Act’s provisions (especially those expanding Medicare and Medicaid benefits and eligibility); (2) Congress concurrently included enhancements for private enforcement of governmental payments programs in the Fraud Enforcement and Recovery Act and the Dodd-Frank Wall Street Reform and Consumer Protection Act; and, therefore, (3) administrative agencies should structure rules to facilitate private enforcement