If you’re happy and you know, comment on a rule

The Notice of Benefit and Payment Parameters (NBPP) for 2021 draft rule is how the Center for Medicare and Medicaid (CMS) intends to run the ACA exchanges for the 2021 plan year.  It has some good stuff in it, some exceedingly boring technical minutia that needs to be addressed but can also serve as an over the counter sleep aid, and some major proposed policy changes.  I am paying particular attention to the proposal to change how automatic renewals are mapped when individuals are eligible for zero premium plans as automatic renewals and zero premiums have been a significant chunk of my published research over the past year.  I’ll be submitting a comment on that matter by the end of the week.

Comments on rules are important for several reasons beyond active and engaged exercises of citizenship.

First, it is a way to have some democratic accountability of the executive branch.  Interested stakeholders can petition for redress of their grievances and bring about their particular and peculiar expertise to a subject that the government may or may not have as much in-depth knowledge. Sometimes comments can point out “DOH” moments to the agencies and allow for course correction.

Secondly, notice and comment is a core component of the Administrative Procedure Act (APA).  The APA governs most of the rule-making regulatory state.  A core APA tenet is rule-making entities can only implement final rules when the rules are neither capricious nor arbitrary.  If comments identify a significant consequence or assumption of the rule that is not addressed in the final rule response to comments, that is good evidence that the rule may be flawed.

This is what is killing Medicaid work requirements as the Secretary of Health and Human Services has been repeatedly informed through comments on the work requirement waivers that the proposals would lead to huge enrollment losses with little attendant gains.  With that knowledge, the Secretary of HHS has not addressed how the waiver squares the circle of trying to promote the core objective of Medicaid (paying for medical services) and massive disenrollment.  Those waivers have been deemed to be arbitrary and capricious. 

Comments build the legal record that can be used in litigation to stop or slow down rules that interested stakeholders don’t like.  At the same time, comments aren’t everything as a non-arbitrary rule can look at comments, acknowledge that the commenters have a good point but say that other factors that are legitimate decision making reasons outweigh the commenters’ good points.  Most of my risk adjustment comments are addressed this way.

If you have specific expertise or interest in anything that the Federal government touches, be ready and willing to comment.

Regulations.Gov is the nation’s one stop shop for commenting on proposed rules.

The best comments have a few common themes.  First, they identify a specific set of issues within a proposed rule.  Then the authors establish their expertise and illustrate why they have some capacity to offer valuable insight into the problem.  And then evidence is brought to bear on the relevant points.   My comment for NBPP 2021 is basically a literature review of recent peer reviewed research and then a discussion of the implications of the proposed CMS policy change using the best available evidence.

Finally, these comments need to be well written and clear as the first reader at the federal agency is an intern or someone in their first job.  They won’t know everything about a subject.  They are mainly screening for subject area and duplication.  Big rules that have high public profiles can often have advocacy entities generate tens of thousands or millions of comments that are virtually identical.  Those comments will be collapsed into a single text string and barely be looked at.  The advocacy entities are mainly using notice and comment as a way to activate their base and maintain and build their mailing lists.  More agency time will be used on comments that offer unique insight into the problem that the agency is grappling with.

So if you have time, and either interest or specific expertise, comment on the rule making process for the things that you care about.  This is an active step of citizenship.