Children's Action Alliance Issues Public Comment on HHS Proposed Rule

WASHINGTON, Dec. 16 -- Siman Qaasim, president and CEO of the Children's Action Alliance, Phoenix, Arizona, 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. 2, 2020, and posted on Dec. 8, 2020:

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I am writing to express my opposition to the Department of Health and Human Services (HHS) proposed rule entitled "Securing Updated and Necessary Statutory Evaluations Timely," Docket Number HHS-OS-2020-0012; hereafter referred to as "The Rule" or "SUNSET."

For over 30 years, Children's Action Alliance has been an independent voice for Arizona's children. As such, we recognize the critical role that Medicaid and CHIP play in increasing access to quality, affordable health care and combatting health disparities for low-income children in our state. We are writing in respectful opposition to this proposal. During the COVID-19 pandemic that has claimed the lives of too many Arizonans and Americans, it is unwise to tie up our nation's health care systems in red tape and endanger longstanding policies. Instead, HHS should prioritize getting people into health coverage quickly and easily.

The proposed SUNSET rule would impose an enormous administrative burden on HHS and the Centers for Medicaid and Medicare Services (CMS). The Rule would require CMS to review and assess all regulations issued prior to 2013 over the next two years - a monumental feat under the best of circumstances, let alone during a pervasive public health emergency. Longstanding Medicaid and CHIP regulations, which serve as critical guidance to state Medicaid programs, would automatically expire if not reviewed.

This administrative exercise would divert necessary resources away from managing and improving the already strained health care sector. This burden would be especially impactful in states like ours, where the coronavirus pandemic is ravaging communities, taxing emergency care systems, and contributing to health coverage loss.

Arizona's Medicaid and CHIP programs provide health insurance coverage for over 2.1 million people, including nearly 1 million children under age 21. Running these programs at the federal level requires the use of regulations that give our state Medicaid agency the guidance it needs to run these programs on a day-to-day basis, to give participating providers and managed care plans guidance as to their obligations, and to make clear to beneficiaries what their enrollment means. Placing an expiration date on current regulations will force CMS to conduct constant "assessments" and "reviews" even though there has been no change in the underlying Medicaid statutory provisions that those regulations implement. This will pose a disruption to the administration of Medicaid and CHIP programs at both the federal and state level.

In addition, HHS has no authority to propose automatic expiration of almost all Medicaid and CHIP regulations. The authority for issuing Medicaid and CHIP regulations is found in section 1102 of the Social Security Act, which expressly directs the Secretary of HHS to issue regulations "not inconsistent with this Act, as may be necessary to the efficient administration of the "functions with which [he] is charged under this Act." This section does not give the Secretary the authority to write automatic expiration dates into regulations. Nor does the Regulatory Flexibility Act, which the Department cites as its authority for this proposal. All that the RFA requires is that agencies have a "plan for the periodic review of rules that have or will have a significant economic impact upon a substantial number of small entities." The department has had a protocol for rule review in place since August 2011 - "Plan for Retrospective Review of Existing Rules,"and between 2012 and 2016 the Department regularly reported on its progress in implementing this protocol. The SUNSET rule fails to discuss why HHS's August 2011 plan does not comply with the RFA's requirement that each agency have a "plan for the periodic review of rules," nor does it explain why the department stopped reporting on its progress after February 2016. Rather than implement new administrative burdens, we urge HHS to withdraw this proposal and continue to conduct retrospective review of regulations under its 2011 plan.

The proposal will force CMS to divert extensive staff resources to reviewing long-standing regulations, which will prevent it from effectively administering the Medicaid and CHIP programs. The Rule states that Medicaid and CHIP regulations will expire at the later of: (1) two years after the proposal takes effect, (2) ten years after the regulation was originally promulgated (following notice-and-comment rulemaking procedures), or (3) ten years after the Department "assesses" and, if necessary, "reviews," the regulation. This means that any Medicaid or CHIP regulation issued before 2013 must be "assessed" and, if necessary, "reviewed" before 2023, or it will automatically expire. As defined by the SUNSET proposal, there are thousands of Medicaid and CHIP "regulations" that were issued properly, with notice-and-comment rulemaking, before 2013. CMS does not have the resources necessary to conduct "assessments" and "reviews" of all these regulations over the next two years while also effectively administering Medicaid and CHIP during a national public health crisis.

The SUNSET rule could upend long-standing regulatory interpretations of the Medicaid and CHIP statutes, creating uncertainty for states, providers, managed care plans, and beneficiaries about federal policies even though Congress has not changed the underlying statutory provisions. To operate as intended, federal / state partnership programs as robust and complex as Medicaid and CHIP require predictable, reliable communication and guidance. This proposal would subject long-standing regulations to agency "assessment" and "review" under penalty of expiration regardless of whether the statutory provisions implemented by the regulation have changed. This would have the effect of converting the CMS regulatory process from a tool for providing policy guidance into an engine of uncertainty, which would be particularly damaging to children and families in the case of regulations affecting eligibility and benefits.

In summary, we request that the proposed SUNSET rule be retracted to ensure state Medicaid and CHIP programs have a solid regulatory foundation. Thank you for the opportunity to provide comment.

Sincerely,

Siman Qaasim

President and CEO

Children's Action Alliance

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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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