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The Future of Healthcare Reform In the United States$
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Anup Malani and Michael H. Schill

Print publication date: 2015

Print ISBN-13: 9780226254951

Published to Chicago Scholarship Online: May 2016

DOI: 10.7208/chicago/9780226255002.001.0001

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Essential Health Benefits and the Affordable Care Act

Essential Health Benefits and the Affordable Care Act

Law and Process

(p.81) Chapter Four Essential Health Benefits and the Affordable Care Act
The Future of Healthcare Reform In the United States

Nicholas Bagley

Helen Levy

University of Chicago Press

This chapter explores the questions of whether the benchmark approach to determine essential health benefits under the Affordable Care Act (ACA) is a lawful exercise of the Department of Health and Human Services' (HHS's) authority under the ACA and whether HHS's announcement of the benchmark approach through an Internet bulletin allowed the agency to sidestep the very administrative procedures that typically serve to constrain the exercise of agency discretion. The authors conclude that the approach likely will be upheld in the event of a challenge, although HHS may have approached the limits of its discretionary authority, and that the agency's use of guidance documents instead resulted in a process that was more open to public scrutiny and external oversight than conventional rulemaking would have been.

Keywords:   essential health benefits, notice and comment rulemaking, sub regulatory guidance, pre-rule, Affordable Care Act, ACA, health care reform, administrative procedure, benchmark approach

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