Center for the Study of Social Policy Issues Public Comment on HHS Proposed Rule

WASHINGTON, Dec. 16 -- Megan Martin, vice president and director of public policy at the Center for the Study of Social Policy, 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:

* * *

I am writing on behalf of Center for the Study of Social Policy to express our strong opposition to the Department of Health and Human Services (HHS) Notice of Proposed Rulemaking entitled "Securing Updated and Necessary Statutory Evaluations Timely," which was published in the federal register on November 4, 2020. These changes would divert resources that should be spent on the COVID-19 pandemic response, on other critical issues including addressing the increasing number of uninsured low-income children, and on day-to-day program administration, to instead "assess" and "review" most of the agencies 18,000 regulations issued in its 67 year history.

The Center for the Study of Social Policy (CSSP) is a national nonprofit organization recognized for its leadership in reforming public systems and advancing policies that promote equity and improve the lives of children and families. We work directly in state public systems and provide technical assistance and policy analysis on a broad set of policies affecting children and families. We recognize that family unity is foundational to child well-being, and we work across public systems to promote family unity and family reunification. We also work to ensure that children and families have access to public benefits and other foundational supports that are critical to economic security and well-being. Across all of the policy areas in which we work, our goal is to ensure that children, youth, and families of all races, ethnicities, and income levels have what they need to thrive.

The Proposed Rule Would be Administratively Burdensome and Require Significant Resources and Funding to Implement

The proposed rule would create a significant administrative burden that would divert resources from critical work, including efforts to address the COVID-19 pandemic. According to HHS, the proposed rule would cost nearly $26 million dollars over 10 years, requiring 90 full-time staff positions to undertake the required reviews./1

Within the first two years, HHS estimates the need to assess at least 12,400 regulations that are over 10 years old./2

The rule would likely impede efforts to meaningfully update regulations where needed given that staff time and resources would have to be dedicated to the unnecessary reviews mandated by the SUNSET Act instead.

In looking at Medicaid, it is clear just how onerous and problematic this will be. Part 438 of Title 42 of the Code of Federal Regulations is just one part of the regulations implementing the Medicaid statue. There are 14 different parts, each with many sections. Most sections are more than ten years old and would have to be "assessed" and if necessary, "reviewed" before 2023 or they will expire. And the Children's Health Insurance Program (CHIP) has 128 "regulations." If this proposal moves forward, the Department will be forced to review thousands of Medicaid and CHIP regulations over the next two years. If they fail to do so, these regulations will expire.

The Proposed Rule Would Undermine the Affordable Care Act, Medicaid, CHIP and other HHS programs, and Harm Children and Families

The NPRM would automatically sunset a host of regulations which play an important role in implementing HHS policies and programs including Medicare, Medicaid, CHIP and the marketplaces, as well as other core government functions such as the Food and Drug Administration (FDA), Indian Health Services (IHS), the Substance Abuse and Mental Health Services Administration (SAMHSA), and the Administration for Children and Families (ACF), among others. These agencies administer critical programs including substance use disorder and mental health treatment, health services to American Indians and Alaska Natives, the Low-income Home Energy Assistance Program (LIHEAP), child care, Head Start, Temporary Assistance for Needy Families (TANF), and child welfare services. This rule would be disruptive to stakeholders currently providing care and harmful to the American people who rely on these and other programs that HHS administers.

Safety net programs such as Medicaid and the Children's Health Insurance Program (CHIP) ensure that 35.8 million low-income children receive the health care they need and are critical tools for promoting health and developmental outcomes for all children. Yet after decades of progress, we are seeing an increase in the number of uninsured children, with the youngest children (under 6 years old) experiencing drops in Medicaid and CHIP coverage./3

While Medicaid and CHIP helped to bring children's uninsured rates to record lows by 2015, the U.S. began to see rising numbers of uninsured children again by 2018. The number of uninsured children increased by more than 400,000 between 2016 and 2018./4

The pandemic has led to unprecedented levels of parental unemployment, declines in Employer Sponsored Insurance (ESI), and a clear need for Medicaid and CHIP in filling the gap. We need to bring resources and attention to addressing the rising numbers of uninsured young children, and to ensure that Medicaid and CHIP are protected and strengthened. To make these programs work, states, providers and managed care plans need clear guidance, stability and predictability, not regulatory turmoil.

In addition, several regulations implementing important parts of the Affordable Care Act are approaching their ten-year anniversary, like the Medicaid cost-sharing rule. Regulations like these would need to be reviewed within the next two years, or they too would expire. Yet the underlying law would still exist, even if the regulations expire. This would mean that states would not have clear guidance on how to implement cost-sharing amounts, wreaking havoc on states' ability to administer their programs and likely harming beneficiaries.

The Proposed Rule is Unnecessary

HHS already periodically reviews and updates its regulations and does not need to be "incentivized" to do so. For example, in 2002, the Centers for Medicare & Medicaid Services (CMS) promulgated new regulations implementing statutory changes to Medicaid managed care./5

In 2015, CMS published a Notice of Proposed Rulemaking to update and modernize Medicaid managed care regulations./6

CMS took nearly a year to review and consider the 875 comments submitted, publishing the final rulemaking in May 2016./7

The Regulatory Flexibility Act (RFA) requires each agency to publish "a plan for the periodic review of the rules issued by the agency which have or will have a significant economic impact upon a substantial number of small entities."/8

It does not authorize agencies to retroactively impose a blanket expiration date to rescind duly promulgated regulations. This proposed rule is also contrary to the Administrative Procedure Act's (APA) requirements for rulemaking. In the APA, Congress established clear procedures and standards for agencies seeking to modify or rescind a rule. The APA requires agencies to go through the same rulemaking process to revise or rescind a rule as they would for a new rule, with public notice and the opportunity to comment./9

While HHS can amend existing regulations, the proposed rule would modify thousands of separate, distinct rules across HHS in a single stroke, in violation of the APA.

Ultimately, this sweeping and ill-conceived change will force the next Administration to divert significant resources away from addressing the pandemic and other pressing issues facing the nation, burden the agency and staff, wreak havoc on programs, and harm the children and families who rely on them. We ask that you immediately rescind the NPRM.

If you have any questions, please do not hesitate to contact Megan Martin, (202) 371-1565; megan.martin@cssp.org.

Sincerely,

Megan Martin

Vice President, Director of Public Policy

Center for the Study of Social Policy

* * *

Footnotes:

1/ 85 Fed. Reg. 70116.

2/ 85 Fed. Reg. 70112. To be specific, HHS states that "because the Department estimates that roughly five regulations on average are part of the same rulemaking, the number of Assessments to perform in the first two years is estimated to be roughly 2,480." Id.

3/ https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/

4/ https://ccf.georgetown.edu/wp-content/uploads/2019/10/Uninsured-Kids-Report.pdf

5/ 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.

6/ 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/2015/06/01/2015-12965/medicaid-and-childrens-health-insurance-program-chip-programs-medicaid-managed-care-chip-delivered.

7/ 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; Final Rule, RIN 0938-AS25, 80 Fed. Reg. 27498-27901 (May 6, 2016), https://www.federalregister.gov/documents/2016/05/06/2016-09581/medicaid-and-childrens-health-insurance-program-chip-programs-medicaid-managed-care-chip-delivered.

8/ 5 U.S.C. 610(a) (In the case of the RFA, periodically is defined as 10 years, unless such review is not feasible, in which case the review can be extended another 5 years).

9/ 5 U.S.C. Sec. 551(5);see also Maeve P. Carey, Specialist in Government Organization and Management, Can a New Administration Undo a Previous Administration's Regulations?, Congressional Research Service (Nov. 21, 2016), https://fas.org/sgp/crs/misc/IN10611.pdf ("In short, once a rule has been finalized, a new administration would be required to undergo the rulemaking process to change or repeal all or part of the rule."); Office of Information and Regulatory Affairs, Office of Management and Budget, The Reg Map 5 (2020) (noting that "agencies seeking to modify or repeal a rule" must follow the same rulemaking process they would under the APA).

* * *

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

TARGETED NEWS SERVICE (founded 2004) features non-partisan 'edited journalism' news briefs and information for news organizations, public policy groups and individuals; as well as 'gathered' public policy information, including news releases, reports, speeches. For more information contact MYRON STRUCK, editor, editor@targetednews.com, Springfield, Virginia; 703/304-1897; https://targetednews.com