Arkansas Advocates for Children & Families Issues Public Comment on HHS Proposed Rule

WASHINGTON, Dec. 15 -- Loretta Alexander, health policy director of the Arkansas Advocates for Children and Families, Little Rock, has issued a public comment on the Department of Health and Human Services proposed rule entitled "Securing Updated and Necessary Statutory Evaluations Timely". The comment was written on Dec. 4, 2020, and posted on Dec. 8, 2020:

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Arkansas Advocates for Children and Families appreciates the opportunity to comment on the Department of Health and Human Services (HHS) proposed rule, "Securing Updated and Necessary Statutory Evaluations Timely", Docket No. HHS-OS-2020- 0012, RIN 0991-AC24, 85 Fed. Reg. 70096 (November 4, 2020).

Arkansas Advocates for children and Families (AACF) is a statewide, multi-issue non-profit, child and family policy research and advocacy organization. Our mission is to ensure that every child has the resources and opportunities they need to live healthy and productive lives and to realize their full potential. AACF is a public voice on issues impacting low-income children and families and children and families of color. We work to promote a greater race equity focus on state policies impacting children and families of color and in AACF's own advocacy work. We do this by working to develop and promote the adoption of better public policy through policy research and data analysis; strategic communications; public education outreach and citizen engagement; working with grassroots partners; coalition building; and advocacy at the state and federal levels. Most of our work is focused on state policy change through the state legislative process, the state agency regulatory process, and state ballot measures. We also work to promote federal policy change through advocacy with our federal congressional delegation and by supporting the efforts of our grassroots partners in local policy change efforts.

As the Cabinet-level department of the federal government operating 20 subagencies, the rules and regulations of the Department of Health and Human Services (DHHS) impact the lives of all Americans from infancy to the elderly. In 2023, the proposed rule would retroactively force an automatic expiration provision on thousands of HHS regulations under Titles 21, 42, and 45 of the Code of Federal Regulations unless those regulations have been assessed and reviewed 10 calendar years after promulgation or 10 calendar years after the last year of HHS assessment or review.

The proposed rule claims that automatic expiration dates give HHS the incentive necessary to conduct regular assessments of existing regulations and comply with the Regulatory Flexibility Act (RFA). First, HHS agencies already commonly update regulations when needed. For example, in 2002 the Centers for Medicare & Medicaid Services (CMS) promulgated new regulations implementing statutory changes to Medicaid managed care./i

In 2015, CMS published a Notice of Proposed Rulemaking to update and modernize Medicaid managed care regulations./ii

CMS took nearly a year to review and consider the 875 comments submitted, publishing the final rulemaking in May 2016./iii

This administration undertook further rulemaking to revise Medicaid managed care regulations, to "relieve regulatory burdens; support state flexibility and local leadership; and promote transparency, flexibility, and innovation in the delivery of care."/iv

The proposed rule would impose such an internal administrative burden on the Centers for Medicare and Medicaid (CMS), that could lead to the interruption of normal Medicaid and CHIP program operations. The resulting uncertainty would affect all stakeholders: CMS; state government budgets; state Medicaid program operations, benificiaries, and providers. Medicaid and CHIP are large, complex, federal-state health insurance programs that affect not only all of the states and territories, but also millions of beneficiaries, tens of thousands of providers, and hundreds of managed care plans.

HHS should use its limited resources to expand Medicaid services, addressing needs for continuity of care, quality of care, opioid addiction, infant/maternal morbidity and mortality and the long-term impacts of the current pandemic.

AACF is extremely concerned about the lasting effects this rule would have on the HHS policies and programs including almost one million Arkansans, receiving Medicaid services including children, persons with disabilities, and the elderly. More Arkansans would be further impacted by HHS programs including Medicare, Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC). Delays in enforcement or changes in financial eligibility could lead to thousands of Arkansans losing Medicaid eligibility.

Even before the pandemic, uninsured rates have been rising over the last few years. Arkansas saw a 1.5% increase in uninsured children from 2018 to 2019.

AACF strongly urges HHS to immediately withdraw this proposed rule with a comment period limited to 30 days which is insufficient for a rule of this broad scope with potentially devastating effects for over 900,000 Arkansans receiving Medicaid coverage.

Thank you again for the opportunity to comment on the proposed rule. Please contact Loretta Alexander at [email protected] if you have any questions or if we can be of further assistance.

Respectfully submitted,

Loretta Alexander

Health Policy Director

Arkansas Advocates for Children and Families

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End Notes:

i/ CMS, Medicaid Program; Medicaid Managed Care: New Provisions, RIN 0938-AK96, 67 Fed. Reg. 40989 - 41116 (June 14, 2002), https://www.cms.gov/Regulations-and-Guidance/Regulations-and-Policies/QuarterlyProviderUpdates/downloads/cms2104f.pdf.

ii/ CMS, Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered in Managed Care, Medicaid and CHIP Comprehensive Quality Strategies, and Revisions Related to Third Party Liability; Proposed Rules, RIN 0938-AS25, 80 Fed. Reg. 31098-31296 (June 1, 2015), https://www.federalregister.gov/documents/2015/06/01/201512965/medicaid-and-childrens-health-insurance-program-chip-programs-medicaid-managed-care-chip-delivered.

iii/ Managed Care, Medicaid and CHIP Comprehensive Quality Strategies, and Revisions Related to Third Party Liability; Final Rule, RIN 0938-AS25, 80 Fed. Reg. 27498-27901 (May 6, 2016 CMS, Medicaid and Children's Health Insurance Program (CHIP) Programs; Medicaid Managed Care, CHIP Delivered), https://www.federalregister.gov/documents/2016/05/06/2016-09581/medicaid-and-childrens-health-insuranceprogram chip-programs-medicaid-managed-care-chip-delivered.

iv/ CMS, Medicaid Program; Medicaid and Children's Health Insurance Program (CHIP) Managed Care (Final Rule), RIN 0938-AT40, 85 Fed. Reg. 72754-72844, 72754 (Nov. 13, 2020), https://www.govinfo.gov/content/pkg/FR-2020-11 13/pdf/2020-24758.pdf

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=HHS-OS-2020-0012-0001

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