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9 Harv. Bus. L. Rev. Online 1 (2018-2019)

handle is hein.journals/hblro9 and id is 1 raw text is: Health Insurance Plan Regulation after the Affordable Care Act: A Cost-Benefit Analysis Comparison Marlan Golden* In a rapidly evolving healthcare landscape, particularly since the enactment of the Patient Protection and Affordable Care Act (ACA) in 2010, regulators have confronted a number of challenges in crafting general rules of prospective applicability for health insurance plans. These challenges include quantifying costs and benefits of regulatory actions that seem difficult to predict, monetizing certain benefits, satisfying the demands of a robust cost-benefit analysis regime, and accounting for heightened uncertainty in the healthcare markets and recently, on Capitol Hill. I will examine these and other challenges faced by regulators through the lens of two regulations: a 2013 regulation promulgated by the Department of Health and Human Services (HHS)1 and a 2018 regulation issued by the Department of Labor (DOL)2. part I of this Article examines the cost-benefit analysis conducted by HHS through the rule's Regulatory Impact Analysis (RIA); Part II analyzes the DOL rule on the same grounds; Part III studies the contrasts that emerge between the two regulations; Part IV comments on how differently the two agencies have approached cost-benefit analysis; and in Part V, I examine two case studies drawn from two different agencies, each subject to the Office of Management and Budget's (OMB) regulatory review, to consider how the two regulations can inform cost-benefit analysis. *J.D. Candidate, Harvard Law School, 2019. Professor Howell Jackson's guidance and support as I worked on this piece were invaluable. I am also grateful to Lisa Robinson, Harvard T.H. Chan School for Public Health, and to David Cope, Harvard Law School, for their contributions to this piece. 1 Patient Protection and Affordable Care Act; Standards Related to Essential Health Benefits, Actuarial Value, and Accreditation, 78 Fed. Reg. 12,833 (Feb. 25, 2013). 2 Definition of Employer Under Section 3(5) of ERISA-Association Health Plans, 83 Fed. Reg. 28,912 (June 21, 2018). 1

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