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Office of

The Assistant Secretary for Planning and Evaluation


Office of Program Systems

General Instructions

Writing Legislative Proposals for FY 2003

(Last Updated: June 4, 2001)

Recently Enacted Laws Affecting HHS


In general for FY 2003 legislative proposals to be seriously considered during the budget/policy development cycle, proposals from the agencies need to be submitted to the Department by the June of 2001 budget/policy submission deadline. Proposals submitted too late for consideration during the summer legislative review process may not be ready to advance beyond the Department.


Proposal Format

(Go Directly To Proposal Format)

Formal preparation of legislative proposals is a mechanism by which a policy consensus within the Department and with OMB can be achieved prepatory to drafting legislative language. It is intended to facilitate the search for agreement and support for policy initiatives that are generated, primarily, from experiences of the operating agencies themselves, as a result of experiences or perceived needs due to flaws, unintended consequences, or shortcomings of existing law. Global legislative initiatives may also begin in this way but may also originate from other sources and in other forms that that described here.

This document is intended to assist policy analysts in the Department of Health and Human Services (DHHS) who are preparing descriptive legislative proposals that meet the requirements of OMB Circular A-19. The “customers” for the proposals thus prepared are (1) other program and policy staff in and outside the Department who are considering the merits of and making decisions regarding whether to advance these provisions and (2) Departmental and Congressional legal staff who will draft the actual legislative language/bills. Since DHHS is responsible for the administration of over 300 separate health and social welfare programs (as detailed in the Catalog of Federal Domestic Assistance), annually, numerous modifications and improvements are identified that become eligible for adoption by the Congress.


BACKGROUND

The Legislative Proposal Process

OMB Circular A-19 lays out the initial process Federal agencies follow to advance their annual legislative programs. Early in September, each department must submit a legislative program to OMB. To meet this target date, the Assistant Secretary for Planning and Evaluation (ASPE) asks that Operating Divisions (OPDIVs) of the Department submit by early June their legislative proposals (concurrent with their budget submissions) to accomplish Secretarial initiatives, meet budget targets, improve program management, and reauthorize programs. Over the summer, ASPE, working closely with other components of the Office of the Secretary, manages a review process that starts with Legislative Team meetings (Deputy Assistant Secretary level decisions) and ends with the Secretary's approval of the Department's Legislative Program.

Under the routine budget and legislative review process, OMB reviews the Program and gives decisions on budget-related, and sometimes other, proposals in late November or December ("passback"). The Department may accept or appeal OMB decisions. OMB incorporates approved budget-related proposals into the President's budget (most recent is FY 2001 budget) and submits them to Congress in January. Once the Legislative Program has been approved, strategic decisions are made regarding whether to: submit formal bills to the Congress, provide only brief proposal descriptions, or to communicate informally the Department’s policy preferences (bills submitted during the past year). Attorneys in the Office of the General Counsel, Legislation Division (GC/L) of the Department draft bills. In all cases, staff of the Assistant Secretary for Legislation (ASL) work with department agencies to achieve congressional enactment.

Purposes of the A-19

A well-written legislative proposal (or A-19, as it is often called, after the OMB Circular) expedites the review process, enabling people to make decisions with a clear understanding of the issues; specifically, it:

When to Prepare an A-19

Organizing an A-19

Some uniformity in format is sought in constructing these documents in order to speed consideration within the Department and at OMB of the substantive content:

Writing Style

Since the proposals of several Operating Divisions are likely to be compiled into a single package for transmittal to OMB and, possibly, the Congress, it improves the presentation if all proposals follow the same format. Some basics:

Electronic Submission and Standards


FORMAT

(Proposal Number)
(Date)

FISCAL YEAR 2003 DHHS LEGISLATIVE PROPOSAL
(AGENCY)

(Brief Title)

(Brief statement of what the proposal would accomplish).

Current Law (or Problem):  Describe simply, provisions of law that the proposal would amend and that make the proposal necessary; or explain that no law exists and the problem this causes.

Proposal:  State proposal in descriptive detail, beginning with ANY other verb than "Amend."

Rationale:  Profide a stong justification for the the proposal; include the following, as applicable:

Impact:  Explain who would be affected by the proposal and the extent of this effect.  Include the sentence:  “The proposal complies with the Federalism principles in Executive Order 13132.”  If the latter is not true, do not submit the proposal.

Cost:  Label this section "Cost," "Revenue," or "Authorization Level," as appropriate.

Personnel Requirements:  Optional; include only if significant and/or reflected in the budget; show estimated personnel impact in full-time equivalents (FTEs).

Effective Date:  Indicate either “Upon enactment" or a specific date.

Other Data:  Optional; provide information here that doesn't fit under other headings, including any draft bill language.

Sample Proposals:  Amend Human Services Program, Amend Health Program, Simple Reauthorization


Editorial DOs and DON'Ts

Word Choice

Acronyms

The ONLY acronyms to use without spelling them out are: ACF,  AHRQ,  AoA,  ATSDR,  CDC,  FDA,  HCFA,  HHS,  HRSA,  IHS,  NIH,  OPHS,  PSC, and SAMHSA.

Don't show acronyms used only once; for others, include in parentheses after first mention--e.g., "consumer price index (CPI)."

Abbreviations – Avoid except for:  i.e.,  e.g.,  P.L., and FY.

Capitalization – Treat the following words as shown: section (but Section 193), State(s) (when referring to units of the USA), and Federal Government

Numbers – One through nine, spell out; 10+, use figures, but spell out words "million" and "billion."

Eliminate clutter
DON’T:  right justify, bold, assign page numbers, or use headers and footers.
DO:  flush right, not space, when entering the unique numbering at top of each A-19; and do INDENT, not TAB when indenting two or more consecutive lines.


NUMBERING PROPOSALS

Assign a control number for each proposal and place it in the upper right corner of the first page of the proposal using the “flush right” command; place the current date directly below the number. Use the OPDIV acronyms indicated.

EXAMPLE--

AHRQ-2003/08
6/1/01

Avoid use of letter qualifiers (e.g., use NIH-2003/04, NOT NIH-2003/03A).

AGENCY

There are 12 agencies or operating divisions comprising the Department of Health and Human Services:

In addition, 8 staff components that comprise the Office of the Secretary:

Legislative proposals from within the Department may originate from any/all of these 20 components.

TITLE

Begin with a verb; give the proposal a descriptive title up to six words.

EXAMPLES–

Child Welfare Services

Develop New AIDS Protocols

SHORT STATEMENT OF THE PROPOSAL

State concisely in program, not legal, terms what the proposal seeks to accomplish; underline (except the period).

EXAMPLES--

Require insurers, underwriters, and third-party administrators to report certain identifying and health insurance information on a quarterly basis to the Secretary.

Reauthorize the Drug Abuse Research Program for five years.

CURRENT LAW

Explain portions of current law that the proposal would amend and that make the proposal necessary or explain the problem necessitating the proposal.

EXAMPLES--

Current Law:  The Abandoned Infants program is authorized under section 104 of the Abandoned Infants Assistance Act of 1995.  The existing appropriation authority expires on September 30, 2001.

Current Law:  Section 1312 of the Public Health Service Act (the Act) requires the Secretary to publish a notice in the Federal Register each time he or she determines that a federally qualified HMO or an entity that received a grant, contract, loan, or loan guarantee under title XIII of the Act fails to:  (1) provide basic and supplemental services to its members; (2) provide services in the prescribed manner; or (3) is not operated or organized in the prescribed manner. Section 1310 sets forth requirements for HMOs to serve as "employees' health benefit plans."

PROPOSAL (the “what?”)

State in program, not legal, terms what you propose to do.

EXAMPLES--

Proposal:  Reauthorize the appropriation authority for the Child Abuse Prevention and Treatment Act for five years.

Proposal:  Establish a simplified HEAL loan consolidation authority allowing borrowers to combine all HEAL loans into a single loan. Specifically--

  • Permit a borrower to consolidate two or more unconsolidated HEAL loans into a single new loan, under the terms that apply to new HEAL loans being made at the time the consolidation occurs.
  • Insure a consolidated loan only if the issuing lender has a contract with the Secretary for consolidation of HEAL loans.

RATIONALE (the “why?”)

Describe the problem the proposal aims to solve and how the proposal would solve it. Be persuasive.

EXAMPLES--

Rationale:  Reauthorization of the appropriations authority for the Developmental Disabilities Assistance and Bill of Rights Act would allow the Federal Government to continue to assist States to aid developmentally disabled persons in achieving their potential through increased independence, productivity, and integration into their community.

Rationale:  Under current law, States and nursing facilities must monitor the financial status of Medicaid recipients in long-term institutional care.  A resident's resource level may fluctuate by small amounts from month to month, typically because their savings account earns interest or because the recipient does not spend their entire personal needs allowance each month, allowing it instead to accumulate as savings.

If States, the recipient, or the recipient's family do not closely monitor these fluctuations, very small increments in resources can push total resources slightly above eligibility levels. The overage, no matter how small or insufficient relative to the person's unfunded medical liability in that month, may cause the person to be ineligible. If the state fails to detect this lapse in eligibility and continues to pay the nursing facility, then the state is at risk of a Medicaid Quality Control error for the full amount of the Medicaid payment in that month.

States and nursing facilities spend large amounts of administrative energy to make sure this does not occur.  This proposal would spare them that unnecessary expenditure.

IMPACT

Explain who would be affected by the proposal; how the roles, rights, and responsibilities of these groups and entities would be affected and to what extent. Indicate whether the proposal would result in an unfunded mandate being imposed upon the States, local governments, tribal governments, or private sector. Address three elements in the proposal: customers, federalism, and unfunded mandates.

Customers

Explain what groups are affected, how, and the extent of this effect. Examples of customers include:

Federalism

Executive Order 13132, "Federalism" issued August 5, 1999 includes sections on Fundamental Federalism Principles (Section 2) and Special Requirements for Legislative Proposals (Section 5) that analysts need to be aware of in preparing legislative proposals. Proposals that would abridge these Federalism provisions are not acceptable. To anticipate the requirement that the Department affirm, in legislation being sent to the Congress, that tese Federalism principles have been complied with, include in every A-19 a statement in the Impact section that “The proposal complies with the Federalism principles in Executive Order 13132.”

For additional direction, OMB has also issued a memorandum to Executive Branch Department Heads on "Guidance for Implementing E.O. 13132, 'Federalism'" (Presidential Memorandum M-00-02) which is available at the OMB site with other similar documents (and which can also be found on our local Web site) along with the HHS guidance on this Executive Order.

Unfunded Mandates

In Public Law 104-4, the Unfunded Mandates Reform Act of 1995 (TEXT) (PDF), Congress required of itself that it assess and consider all costs created in its laws which would constitute unfunded Federal mandates on States, local governments, tribal governments, and the private sector. Reductions in appropriation authorizations without commensurate reductions in program requirements also constitute unfunded mandates. The law also requires agencies to be more accountable for mandates that would be established through regulations.

If the legislative proposal would likely lead to the imposition of an unfunded mandate, explain the likely source of the mandate under this Impact section; under the Rationale section, provide a strong argument for and explanation why the mandate is justified. Include under the Cost section an estimate of costs expected to be incurred by the States, local governments, tribal governments, or private sector as a result of the additional mandated work effort or benefits payments. Indicate in the proposal other proposals which will address how we recommend paying for the mandate.

EXAMPLES--

Impact:  By the fifth year, roughly 400 additional children would be on the benefit rolls as a result of the proposal. There is no Federalism Impact resulting from this proposal.  This legislative proposal complies with the requirements of E.O. 13132 regarding Federalism.

Impact:  While fewer than half of the States grant presumptive eligibility, they account for the overwhelming majority of pregnant women currently applying for AFDC.  This proposal would assure improved equity and fair treatment of women across the country.  Based on the experience of States to date, and the small numbers of individuals impacted, we calculate that the cost to the States will be $5 million overall.  This amount should be more than offset by several liberalizations of rules States must follow in administering the program.  This legislative proposal complies with the requirements of E.O. 13132 regarding Federalism.

COST or Authorization Level or Revenue

Provide a table showing estimated Federal costs, savings, revenue, or reauthorization level (or net state costs) of the proposal in millions of dollars beginning with the year for which the change is proposed. If costs are not explicit, explain cost effects. If proposal involves no costs, state "None."

EXAMPLES--

Authorization Level:  (millions)

FY 2003

FY 2004 through FY 2007

$ 1,391

-- Such Sums As Necessary --

Cost:  (millions)

FY2003 FY 2004 FY 2005 FY 2006 FY 2007
Program $-114.0 $-128.0 $-123.0 $-120.0 $-119.0
Administrative - 2.4 - 2.4 - 2.4 - 2.4 - 2.4
State (8.5) (9.0) (9.0) (9.0) (9.0)

Revenue:  (millions)

FY 2003 FY 2004 FY 2005 FY 2006 FY 2007
$ 0 $ 474 $ 1,333 $ 2,073 $ 3,356

PERSONNEL REQUIREMENTS

If the numbers are significant and reflected in the budget, show the proposal's estimated Federal personnel impact in full-time equivalents (FTEs) for five years beginning with the fiscal year for which the change is proposed. If proposal has no personnel impact, omit this section.

EXAMPLES--

Personnel Requirements:
FY 2003 FY 2004 FY 2005 FY 2006 FY 2007
FTE 126 101 31 31 31

Personnel Requirements:  Negligible (less than 10 workyears).

EFFECTIVE DATE

Specify effective date.

EXAMPLES–

Effective Date:  Effective for services provided on or after January 1, 2003.

Effective Date:  Upon enactment.

SAMPLE LEGISLATIVE PROPOSAL TO AMEND A PROGRAM

ACF-2003/04
6/10/01

FISCAL YEAR 2003 DHHS LEGISLATIVE PROPOSAL
ADMINISTRATION FOR CHILDREN AND FAMILIES

Vendor Payments for Homeless

Allow State agencies to issue protective, vendor, or two-party payments to meet the shelter needs of homeless AFDC applicants or recipients.

Current Law:  Section 406(b)(B) of the Social Security Act requires state agencies to make a determination of mismanagement before issuing protective, vendor, or two-party assistance payments to AFDC recipients.

Proposal:  Allow state agencies the option of issuing protective, vendor, or two-party shelter payments to homeless AFDC applicants and recipients without completing a mismanagement determination or obtaining the consent of the applicant or recipient.

Rationale:  Historically, property owners have been reluctant or, in most instances, have refused to rent to homeless families or individuals even when these individuals were approved for or were receiving AFDC.  Property owners would be more willing to accept homeless applicants or recipients as tenants if they were assured that rental payments would be sent directly to them from state agencies rather than from the applicants/recipients.

Impact:  Allowing state agencies to issue these payments would improve the availability of housing for homeless AFDC applicants and recipients.  This proposal would provide state agencies with additional flexibility to meet critical housing needs for AFDC applicants and recipients.  This proposal complies with the Federalism requirements of E.O. 13132.

Cost:  Negligible.


SAMPLE LEGISLATIVE PROPOSAL TO AMEND A PROGRAM

HCFA-2003/44
5/24/01

FISCAL YEAR 2003 DHHS LEGISLATIVE PROPOSAL
HEALTH CARE FINANCING ADMINISTRATION

Prepaid Health Plans Requirements

Impose contract requirements and sanction authority upon risk-based prepaid health plans (PHPs).

Current Law:  Most Medicaid contracting PHPs are risk-based and provide an array of services which are "less than comprehensive."  Broad authority for Medicaid contracting by PHPs is implied by section 1902(a)(4) of the Social Security Act (the Act), although theses entities are never named as such.

The statutory authority for contracting with, and regulation of, PHPs is much less explicit than the authority for Health Maintenance Organizations (HMOs).  HMOs must satisfy requirements in section 1903(m)(2)(A) of the Act as a condition of contracting with the state.  These requirements include: (1) a 75/25 enrollment requirement (i.e., at least 25 percent of enrollees in a plan must be non-Medicaid individuals); (2) actuarial soundness; (3) the right for HCFA and the state to audit and inspect records; (4) prohibition of discrimination based on health status; (5) disenrollment on demand; (6) provision for payment of out-of-plan emergency services by the contracting plan or the state; (7) limitations on physician incentives; and (8) the maintenance of encounter data. There are no parallel requirements for PHPs.

HMOs may also have sanctions imposed for:  (1) failure to provide medically-necessary items or services; (2) imposing excess premiums; (3) discriminating based on health status; (4) misrepresenting or falsifying information, and (5) failure to adhere to physician incentive requirements.  There is no authority for sanctioning PHPs for noncompliance.

Proposal:  Require PHP contracts with States to provide that:

Subject PHPs to sanctions (withholding of Federal Financial Participation or imposition of civil monetary penalties) for the following:  (1) failure to provide medically-necessary items or services; (2) charging excess premiums; (3) discriminating based on health status; (4) misrepresenting information; and (5) failure to comply with physician incentive regulations.

Rationale:  Many prepaid health plans are organized and operate identically to HMOs but are considered PHPs because they offer fewer services.  There is no real basis for this inconsistency. States currently contract with approximately 50 PHPs which have a total enrollment of over 419,000 people.

PHPs currently adhere to many of the HMO contracting requirements, but are not statutorily required to do so.  There is no sanction authority for non-compliant PHPs.  This means that PHPs may lock in an individual for an indefinite period, and may discriminate based on health status.  This situation provides ample opportunity for abuses that affect the quality of care.  Furthermore, many prepaid entities are contracting as PHPs to avoid being subject to both state insurance law and Federal HMO law.  Some of these entities are almost identical to HMOs but are not subject to Federal and state contracting requirements.

Impact:  This proposal would create statutory uniformity in the rules affecting risk-based entities.  Imposing these requirements would give Medicaid beneficiaries added protections and, at the same time, provide Federal and state governments with additional enforcement and oversight authority.  It would also ensure that States contract only with those PHPs that meet certain standards.

Medicaid enrollees in PHPs would be protected from:  (1) discrimination based on health status; (2) being locked in to a plan for more than six months without cause; and (3) being charged for emergency services obtained outside the PHP.

This proposal complies with the Federalism principles and requirements of E.O. 13132.

Cost:  None


SAMPLE REAUTHORIZATION REQUEST

CDC-2003/05
6/3/01

FISCAL YEAR 2003 DHHS LEGISLATIVE PROPOSAL
OFFICE OF PUBLIC HEALTH AND SCIENCE

Minority Health Statistics

Reauthorize the minority grants program for three years.

Current Law:  Section 306(n) of the Public Health Service Act provides authority for grants to be made to public and private organizations to support special studies, data analyses, and methods research on minority health statistics.  Section 306(o)(2) authorizes the appropriations for this program.  The existing authority expires on September 30, 2001.

Proposal:  Reauthorize the appropriations authority for the Minority Grants Program for five years.

Rationale:  Numerous studies and analyses have shown that significant differences in health exist among various racial and ethnic groups.  Legislation enacted in 1990, in response to concerns about these disparities, established an extramural grants program to improve minority health statistics.  Grants have been authorized to support special studies or surveys to fill in gaps where national surveys cannot provide sufficient data; to perform analysis on existing data; and to perform research on how to improve methods of obtaining information on racial and ethnic subpopulations.

Timely extension of the funding authority is necessary to continue the research activities associated with understanding the health of racial and ethnic populations and subpopulations.

Understanding the differences in health status among various population groups is the first step in eliminating those differences.  Data from this program would be used to develop and target health programs for minority groups.

Impact:  This legislative proposal complies with the Federalism principles and requirements of E.O. 13132.

Authorization Level: (millions)

FY 2003 FY2004-2007
$ 20.0 Such Sums As Necessary

You may direct questions regarding this guide, submission of legislative proposals, or the Department’s legislative review process, to:

Andrew Rock
arock@osaspe.dhhs.gov
(202) 260-0398
Legislative Development/Coordination
200 Independence Avenue, S.W.
Rm. 447D HHH, Washington, D.C. 20201