National Committee to Preserve Social Security & Medicare Issues Public Comment on HHS Proposed Rule

WASHINGTON, Dec. 16 -- Max Richtman, president and CEO of the National Committee to Preserve Social Security and Medicare, 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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The National Committee to Preserve Social Security and Medicare (the National Committee) is a membership organization that works to preserve the health and retirement security of current and future retirees. We appreciate the opportunity to provide comments on the Department of Health and Human Services (HHS) proposed rule, "Securing Updated and Necessary Statutory Evaluations Timely." For the reasons outlined below, the National Committee strongly urges HHS to immediately withdraw this proposed rule.

Binding the agency in red tape

The National Committee strongly opposes the proposed rule, which would retroactively impose an expiration provision on most HHS regulations unless they undergo a cumbersome and unnecessary review process. For regulations already in place, HHS would have the later of two years or 10 years from the promulgation of the underlying law to complete the review or the rule would expire. HHS estimates 12,400 regulations would be subject to the proposed review procedure adding significant administrative burden for already overtaxed agencies and creating regulatory uncertainty at a time when HHS already has to balance enormous new COVID related duties in addition to its usual agency responsibilities. Furthermore, the abbreviated 30-day comment period is insufficient for a rule with such far reaching implications for the general public, stakeholders and agency staff.

HHS projects that the cost for implementing this rule at nearly $26 million over 10 years./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 adversely affect HHS's ability to focus on the administration of current programs, to issue new regulations, and deal with the current public health emergency.

Harmful impact on seniors

42 CFR 407, Medicare Program; Hospital Insurance Entitlement and Supplementary Medical Insurance Enrollment and Entitlement, is one regulation HHS highlights as subject to the new review process. The application of the review process to this rule illustrates how people could lose coverage or incur significant costs because of the review process in the proposed rule.

42 CFR 407 regulates Part B enrollment including so-called state buy-in plans (agreements between states and Medicare where states pay Part B premiums for low-income beneficiaries who are exempted from certain Medicare enrollment requirements and penalties). Under the proposed rule, if HHS is not able to review 42 CFR 407 within two years of promulgation the proposed rule it will expire even though has been intermittently amended since first published in 1988.

The arbitrary expiration of this rule would disrupt CMS's and state Medicaid departments' ability to enroll and disenroll beneficiaries potentially leading to gaps in coverage, higher premiums and the assessment of delayed enrollment penalties. For example, 42 CFR Sec. 407.48(c) limits retroactive liability for Part B premiums when a beneficiary loses eligibility for a buy-in plan. Without this protection a person who is not notified in a timely way that coverage under a buy-in plan is ending could be responsible for paying many months of missed premium payments. Without the retroactive liability protection in place, anyone unable to pay for these past premiums could lose coverage and incur the Part B premium penalty upon reinstating Medicare. This is an example of how the recission of just one relatively small rule could raise premiums for the entire remainder of a beneficiary's time on Medicare. Required arbitrary review of this rule and many others would waste time that could be much better used by administering programs and responding to COVID-19 and other emergencies.

The rule violates notice and comment rulemaking

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). While the 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," it does not authorize agencies to retroactively impose a blanket expiration date to rescind multiple regulations./3

Further, the Administrative Procedure Act requires agencies to conduct 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./4

Blanket recission of rules therefore violates the public's right to participate in the regulatory process.

Approval of RIN 0991-AC24 "Securing Updated and Necessary Statutory Evaluations Timely" will only hamstring the new administration's capacity to protect millions of Americans against the coronavirus.

The National Committee strongly opposes this highly disruptive rule and urges HHS to withdraw it immediately. Thank you for the opportunity to comment on this important issue. If you have further questions, please contact Dan Adcock at [email protected] or Lisa Swirsky [email protected].

Sincerely,

Max Richtman

President and CEO

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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/ 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).

4/ 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).

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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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