Nuts and Bolts of Implementing Legislation – A Practitioner’s Perspective

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By John Pearson
July 18, 2017

Recently, Senate Republicans released a “discussion draft” of a bill to repeal and replace the Affordable Care Act (ACA). This column offers an overview of how to read and implement legislation.

The Basics – Bills, Public Laws and the U.S. Code

It is essential to understand these documents.  

• A bill is a legislative proposal.

• A Public Law is created when a bill has been passed by both houses of Congress and signed by the President.

• Bills and Public Laws usually direct certain changes to the U.S. Code. The U.S. Code is a permanent compilation of the nation’s laws.

The public can track bills, Public Laws and the U.S. Code from congress.gov.

Section 104 of the “Discussion Draft”

Section 104 repeals the ACA’s individual mandate to purchase health insurance.

SEC. 104. INDIVIDUAL MANDATE.

(a) IN GENERAL.—Section 5000A(c) of the Internal Revenue Code of 1986 is amended—

(1) in paragraph (2)(B)(iii), by striking ‘‘2.5 percent’’ and inserting ‘‘Zero percent’’, and

(2) in paragraph (3)—

(A) by striking ‘‘$695’’ in subparagraph(A) and inserting ‘‘$0’’, and

(B) by striking subparagraph (D).

(b) EFFECTIVE DATE.—The amendments made by this section shall apply to months beginning after December 31, 2015.

How to Analyze Section 104

Subsection (a) of section 104 directs certain changes to the existing section 5000A(c) of the IRS Code. To fully understand subsection (a), you may need to create a merged version of section 5000A(c) with the new text from subsection (a).

Subsection (a) reduces all penalty provisions that apply to individuals to zero and eliminates the indexation feature.

Subsection (b) gives the effective date for section 104. It does not direct any changes to the U.S. Code.

High Level vs. Detailed Level Understanding of Legislation

For top agency executives, politicians, and the press, it may be sufficient to have a bulletized understanding of legislation. Maybe a politician can recite 10 bullets concerning the 142-page draft bill. Maybe a newspaper article would cover 10 bullets. However, politicians and the others cited would not necessarily understand the details in section 102, which is more complex. Only a few people on Congressional staffs or inside the bureaucracy might have a full understanding of section 102. No one person may understand the full details of the entire 142-page Senate bill. Bureaucracies use specialization to insure that they have experts for all sections in legislation.

Approach to implementation

If section 104 became law, here’s how you might approach the implementation.

• What does the text mean? As a program analyst, you will meet with attorneys and other staff to discuss what the language means and what you must do to ensure your agency is in compliance with the new language. Lawyers will give advice but implementation is not the responsibly of lawyers.

• What outward facing documents including regulations, pamphlets, forms or websites need to be changed? You don’t want the public to read that penalties on individuals exist when they have been eliminated.

• What internal documents need to be changed? You don’t want the agency’s manuals to continue to refer to penalties on individuals. You probably need to retain internal documentation on how to handle penalty issues for the prior years when penalties were still in effect.

• What customer service training on section 104 needs to occur? Your customer service representatives must be able to answer questions that are likely to come up.

• What report requests concerning implementation of section 104, if any, will your agency expect to receive? Congress and others may want data on what happened.

• What computer systems or computer interfaces need to be changed?

• Does the agency need to work with any other agencies to implement section 104?

The Effective Date Provision

Section 104 appears to be a relatively simple legislative change. But subsection (b), the effective date provision, may be problematic.

Does subsection (b) mean a person who paid a penalty in 2017 (for failure to have health insurance in 2016) should receive a refund of the penalty? If so, refunds don’t just magically happen. You will need to write a project request (or whatever your agency calls it) so the IT department knows precisely what should happen. The IT department will use a formal process for software changes, which includes analysis, coding, and testing. You may be part of the testing and you may need to assist with the analysis. Exactly how do you determine from agency databases which persons are entitled to receive a refund for penalties paid in 2017? You don’t want refunds going to the wrong people or in the wrong amounts and you don’t want to miss people who should receive a refund.

I personally disagree strongly with the elimination of ACA’s individual mandate. We need millions more people (especially healthy people) to be enrolled in the private insurance markets to make these markets work properly to deliver affordable insurance. But if I were a current government employee or contractor assigned to implement section 104, I wouldn’t dream of resisting the implementation. You often have to set aside your personal values and beliefs. Your duty is to implement the laws as written.

Author: John Pearson recently retired from a lengthy career in the federal government where he was a program analyst. He has an MPA and a bachelor’s degree in economics. He now writes columns reflecting on his experience in government. His email is [email protected].

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