National Council of Jewish Women Issues Public Comment on HHS Proposed Rule

WASHINGTON, Dec. 19 -- Jody Rabhan, chief policy officer of the National Council of Jewish Women, 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 Council of Jewish Women ("NCJW") is pleased to provide comments in response to Securing Updated and Necessary Statutory Evaluations Timely, a notice of Proposed Rulemaking published by the Department of Health and Human Services ("HHS") in the Federal Register on November 4, 2020, at 85 Fed. Reg. 70096 ("Proposed Rule").

Founded in 1893, NCJW is the oldest Jewish women's volunteer organization in the United States. Inspired by Jewish values, NCJW strives for social justice by improving the quality of life for women, children, and families and by safeguarding individual rights and freedoms. Our over 180,000 grassroots advocates carry out the organization's long tradition of progressive action through a powerful combination of community organizing, education, direct service, and advocacy. Through 60 sections and action teams across the country as well as a strong State Policy Advocacy network in 16 states, NCJW works on local, state, and federal issues.

As an organization and community member, NCJW is committed to the belief that every individual has an equal right to access health care. NCJW founder Hannah G. Solomon asserted, "We must add our voices to those who cry out that there is a standard below which we will not allow human beings to live, and that standard is not at the freezing nor starving point." Since she spoke those words, NCJW has championed policies that provide human needs services for all, including health care. Our Jewish values teach us to respect the dignity and decisions of all people and, as such, we aim to create a world where everyone -- regardless of race, class, gender, sexuality, ability, or immigration status -- is able to control their body, sexuality, and future. To that end, NCJW works to ensure that all people have full and equal health coverage and opposes any regulation that impinges on anyone's ability to access the care best-suited for their own beliefs and circumstances.

For the reasons detailed below, we ask HHS to withdraw the Proposed Rule, which would retroactively impose an expiration provision on most HHS regulations and establish "assessment" and "review" procedures to determine which, if any, regulations should be retained or revised. This ill-conceived proposal would create tremendous administrative burden for HHS and wreak havoc across a broad swath of Department programs and regulated entities from Medicaid and Medicare to Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC). We also strongly object to the truncated 30-day comment period which is insufficient for a rule of this broad scope with potentially harmful effects.

With the COVID-19 pandemic raging at record rates across the country, it is of the utmost importance that government agencies and public health officials remain focused on defeating the virus. Should the Proposed Rule take effect, it could force agencies to spend significant time and resources determining which past rules should be reviewed, diverting attention from combatting the pandemic. Addressing the current health crisis, supporting families and workers, and preparing for a successful recovery demands the dedicated and undivided attention of the US government.

I. The Proposed Rule would create tremendous administrative burden for HHS.

HHS asserts that the Proposed Rule will promote "accountability, administrative simplification [and] transparency. . . ."/1

In reality, the proposal would create significant administrative burden that would divert resources from critical work, including efforts to address the COVID-19 pandemic. HHS itself estimates that the Proposed Rule would cost nearly $26 million dollars over 10 years, requiring 90 full-time staff positions to undertake the required reviews./2

Within the first two years, HHS estimates the need to assess at least 12,400 regulations that are over 10 years old./3

However, these figures likely underestimate the time and money involved in the review process, and do not accurately account for complications that may arise.

As such, the Proposed Rule would adversely affect HHS's ability to focus on the administration of current programs, to issue new regulations, and appropriately review current regulations that need modification. In addition, several regulations implementing important parts of the Affordable Care Act ("ACA") 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 would expire. However, the underlying law still exists, even if the regulations expire.

The Medicaid program has provided essential health coverage to older adults, people with disabilities, children, families, and low-income adults for over fifty years. As part of our faith-based mission of tzedek (justice) for all, NCJW is dedicated to lifting up those disadvantaged economically, those with limited access to services, and those who face structural barriers to exercising their human rights. Therefore, we support the expansion of Medicaid and continue to work toward universal access to comprehensive care, including reproductive health services. Especially during crisis situations like the ongoing COVID-19 pandemic, it is critically important that HHS have the flexibility and bandwidth to shift focus and respond quickly to the immediate needs of our most vulnerable, including Medicaid enrollees.

NCJW was also proud to play a role in the enactment of the ACA, a critical source of health coverage for America's traditionally underserved communities including individuals and families living in poverty and struggling to make ends meet, people of color, women, immigrants, LGBTQI individuals, individuals with disabilities, seniors, and individuals with limited English proficiency. Significantly, absent the financial assistance offered by the ACA, many in these communities faced the impossible choice of going without health insurance or straining their resources to pay for services out-of-pocket. It is profoundly unjust to jeopardize access to and the transparent administration of programs serving the nation's most marginalized through implementation of the Proposed Rule.

II. The Proposed Rule would wreak havoc across all HHS programs.

Regulations play an important role in implementing HHS policies and programs including safety net programs such as Medicaid and the Children's Health Insurance Program ("CHIP"), which provide health coverage for over 75.5 million people, including 36.6 million children. A strong regulatory framework provides states the clarity they need to run these programs on a day-to-day basis, gives providers and managed care plans guidance as to their obligations, and explains to beneficiaries what their entitlement means. The Proposed Rule would create legal uncertainty regarding the validity and enforceability of regulations throughout the review process.

For instance, in absence of the Medicaid cost-sharing rule, states would no longer have clear guidance when establishing cost-sharing amount. States then would lose the ability to administer their programs, and more importantly, could potentially harm beneficiaries. Furthermore, states, insurance issuers, providers and beneficiaries all rely on a duly promulgated regulatory framework, but HHS' regulatory impact analysis does not assess the rule's potential impact on states and other groups.

The bigger danger posed by the Proposed Rule is that important regulations may be arbitrarily rescinded because there are simply not enough HHS staff or resources to undertake such a sweeping review process. Regulations that do not complete the complicated and time consuming review process would summarily expire, leaving vast, gaping holes in the regulatory framework implementing HHS programs and policies.

NCJW believes in quality and comprehensive mental and physical health care coverage and services (including addiction) that are affordable and accessible for all. The Proposed Rule would create chaos in regards to a number of programs that millions of Americans rely on. For example, multiple insurance affordability programs including Medicaid and CHIP rely on regulations at 42 C.F.R. Sec. 435.603 to determine financial eligibility using Modified Adjusted Gross Income ("MAGI") methodologies. If this regulation were to simply disappear, programs would be free to redefine MAGI household and income counting rules, with no standards, consistency, or accountability. Arbitrarily rescinding large swaths of regulations would wreak havoc in HHS programs, leading to untold harm to the millions of people who rely on those programs.

As each of us is made in the image of the divine -- b'tselem Elohim (Genesis 1:26) -- every single person's health is paramount and unassailable. We have an obligation to care for and protect our bodies and to ensure all others can do the same. This means that every human being deserves fair treatment and respect when accessing health care, free from political interference or economic coercion. To ensure that people are able to access the essential services they need and to effectively administer programs as large and vital as Medicaid and CHIP, states, providers, managed care plans need stability. The Proposed Rule would do the opposite and must be rejected.

III. The Proposed Rule is unnecessary and HHS does not have the authority to propose automatic expiration dates on almost all regulations.

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"). 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./4

In 2015, CMS published a Notice of Proposed Rulemaking to update and modernize Medicaid managed care regulations./5

CMS took nearly a year to review and consider the 875 comments submitted, publishing the final rulemaking in May 2016./6

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."/7

HHS also annually reviews and updates the Notice of Benefits and Payment Parameters for insurance exchanges and issuers and the Basic Health Program's funding methodology to update requirements based on new information and data.

Obviously, HHS' contention that it needs to "incentivize" regulation review by imposing a mandatory rescission is simply not supported by the facts./8

Indeed, the Proposed Rule would likely impede HHS efforts to meaningfully update regulations where needed, since staff time would have to be dedicated to the unnecessary reviews mandated by the SUNSET Act instead.

Further, 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."/9

However, nothing in this forty-year-old law authorizes agencies to retroactively impose a blanket expiration date to rescind duly promulgated regulations.

In fact, this proposal is 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./10

HHS states it has authority under the APA to add end dates, or conditions whereby a previously promulgated rule would expired./11

We do not dispute that federal agencies can later amend existing regulations. However, the Proposed Rule would modify thousands of separate, distinct rules across HHS in a single stroke, in violation of the APA. HHS' attempt to apply a blanket amendment to 18,000 regulations violates the APA's requirements that review of an existing rule take place on an individual basis, requiring specific fact-finding relevant to the individual rule that the agency wants to amend,

IV. Conclusion

Thank you for the opportunity to comment on this important issue. NCJW feels that the Proposed Rule is simply an attempt to sabotage and destroy duly promulgated regulations by retroactively imposing an arbitrary end date. This proposal is unnecessary, will wreak havoc in current HHS programs, and will tie the hands of the incoming Administration by detracting from critical issues like the COVID-19 pandemic. NCJW strongly opposes this rule and urges HHS to withdraw it immediately. If you have further questions, please contact Shannon Russell, NCJW Legislative Counsel, at [email protected].

Sincerely,

Jody Rabhan

Chief Policy Officer

National Council of Jewish Women

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Footnotes:

1/ 85 Fed. Reg. 70104.

2/ 85 Fed. Reg. 70116.

3/ 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.

4/ 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.

5/ 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.

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; 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.

7/ 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.

8/ 85 Fed. Reg. 70099, 70106.

9/ 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).

10/ 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).

11/ 85 Fed. Reg. 70104, fn 85 & 86, citing to separate, specific rulemakings modifying interim final rules implementing mental health parity and foreign quarantine provisions, respectively.

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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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