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Unformatted text preview: 20 journal of law, medicine & ethics Introduction Within constitutional and statutory boundaries, the Obama Administration can use its executive authority and administrative tools to reform health care incre- mentally without congressional approval. Under cur- rent law, the administration can: 1. promote its policy goals through demonstration projects; 2. increase the use of health information technology; 3. reduce drug costs; 4. increase coverage portability; and 5. expand State Childrens Health Insurance Plan (SCHIP) eligibility. The administration does not, however, have the unilateral power to establish a national health insur- ance exchange, create a new small business health tax credit, or require employers to pay-or-play. Tools of the Presidential Administration to Reform Health Care The Obama Administration has three primary tools to direct the actions of administrative agencies: regula- tions, sub-regulatory guidance, and executive orders. Administrative agencies promulgate regulations pur- suant to congressional delegations of authority in statutes. Sub-regulatory guidance implements policy within an executive agency and includes letters, mem- oranda, determinations, agreements, findings, and other types of directives. Presidents employ execu- tive orders to direct the actions of agency employees and instruct them to create or implement particular policies. Promote Policy Goals through Demonstration Projects The administration can pursue its policy goals through Medicaid, Medicare, and SCHIP demonstration proj- ects. Section 1115 of the Social Security Act (Act) gives the Secretary of Health and Human Services (HHS) broad authority to waive certain Medicaid and SCHIP requirements for states to test new ideas. Similarly, Section 222 of the Social Security Amendments of 1972 gives the Secretary authority to develop demon- stration projects to test provider quality initiatives. For example, the Secretary could allow states to expand coverage for low-income adults using Section 1115 waivers, or implement pay-for-performance for care received under Medicare using Section 222 waivers. Increase the Use of Health Information Technology The new administration can increase the use of health information technology (IT) through several ways. President Obama can issue an executive order similar to Executive Order 13410, which directed administra- tive agencies to complete a comprehensive review of the numerous health IT programs currently underway and to coordinate the activities of various agencies. Additionally, the Centers for Medicare & Medicaid Services (CMS) can promulgate regulations to expand the scope of the physician reimbursement program....
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