Kansas Action for Children Issues Public Comment on HHS Proposed Rule

WASHINGTON, Dec. 19 -- Kansas Action for Children, Topeka, 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. 1, 2020, and posted on Dec. 8, 2020:

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Thank you for the opportunity to comment on proposed regulations RIN 0991-AC-24, "Securing Updated and Necessary Statutory Evaluations Timely."

Since 1979, Kansas Action for Children has been working as an independent voice for young children. KAC is a nonprofit, nonpartisan statewide advocacy organization focused on improving the lives of Kansas children and families. Our focus is specifically on the critical development window of children ages 0-8 -- and we work to shape effective policies in early learning, health, and family economic supports.

The SUNSET proposal should be withdrawn for four reasons:

1. The Medicaid and CHIP programs provide health insurance coverage for over 75.5 million people, including 36.6 million children. Running these programs at the federal level requires the use of regulations to give states the guidance they need to run the 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 entitlement 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, disrupting the administration of the programs at both the federal and state level.

2. The Department 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."

3. The proposal will force CMS to divert large staff resources to reviewing longstanding regulations, especially over the next two years, preventing it from effectively administering the Medicaid and CHIP programs. It provides 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 has to be "assessed" and, if necessary, "reviewed" before 2023, or it automatically expires. There are literally thousands of Medicaid and CHIP regulations (as the proposal defines that term) that were issued--properly, with notice-and-comment rulemaking--before 2013. CMS does not have the bandwidth to conduct "assessments" and "reviews" of all these regulations over the next two years and also effectively administering Medicaid and CHIP during a national pandemic.

4. The proposal will potentially 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, programs as large and complex as Medicaid and CHIP require predictable rules that states and other stakeholders can understand and rely on. This proposal would subject long-standing regulations to agency "assessment" and "review" under penalty of expiration regardless of whether the statutory provision that the regulations implement 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.

Please feel free to contact Kansas Action for Children at [email protected].

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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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