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You are here: Home / Anderson On Health Insurance / If you’re happy and you know, comment on a rule

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

by David Anderson|  February 26, 20209:02 am| 5 Comments

This post is in: Anderson On Health Insurance

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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.

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Reader Interactions

5Comments

  1. 1.

    Butch

    February 26, 2020 at 9:29 am

    Can I just add, speaking as someone who has gotten stuck compiling these sorts of comments, that advocacy groups will often encourage members to send in “I support” or “I oppose” postcards.  These comments all get lumped into a category usually called “non-substantive” and aren’t considered further.  It isn’t a vote; your comment needs to make it sound like you’ve actually read the proposal.

  2. 2.

    Scott

    February 26, 2020 at 10:04 am

    Thank you so much for this information. I’ve wondered for some time if simply adding my name to a given petition had impact. This is very useful.

  3. 3.

    thylacine

    February 26, 2020 at 10:18 am

    If you can point out an issue the agency entirely overlooked in its proposal, then the agency may have to re-propose or issue a supplemental proposal so that everyone can comment on the issue.

    Very minor nit: “procedure” in APA is singular.

  4. 4.

    WaterGirl

    February 26, 2020 at 10:43 am

    @thylacine: Not quite sure whether that is a recommendation or a warning.

  5. 5.

    Ramalama

    February 26, 2020 at 12:22 pm

    Can I ask an off-topic question here?

    What should Americans do about preparing for CoronaVirus and their health insurance?

    • Would it be a good idea for people to start calling their insurance companies to find out whether or not they’d be covered?
    • Do they need to get every case scenario spelled out?
    • Can they get a cost-estimate for every case scenario by phoning?
    • Should they (also) be phoning their local govt or federal representatives about this?
    • Should they push to get stuff in writing?
    • What other steps can they take now to offset the awfulness of getting sick and having their healthcare mess up?

    I’m thinking that a really simple, step-by-step tutorial for Americans might be really popular and useful in the possible event of this particular spreading of an unknown virus.

    When I got sick with H1N1 my university health plan in the US (where I worked – I was not a student) would not admit me to the hospital despite my pleading. No fever (yet). Must be allergies (come the f*ck on I’ve had them my whole life this is not allergies). They checked me over. Reiterated it was not H1N1. Even though I was rapidly developing extreme symptoms. Told me to go out and buy allergy meds – as though I had not just told them and as if my medical history was not rife of me with allergy related notes on treatment and go home.

    I didn’t know how else to fight them since I did not have a strategy or practice in place to say

    Section 119.b-snarl requires you to keep me under observation until symptoms have cleared up.

    Something like that.

    Then I got slammed with illness and I couldn’t do anything. Could not make the trip back to my university medical center. Could not call. Felt like I was gonna die for 5 days. Took another 2 – 3 weeks for me to not feel like warmed over Hell.

    When I returned to Montreal, I met up with friends who I’d seen at a party just before getting ill. They’d been diagnosed and treated for what was that, again? H1N1. Same time I was hovering on my own with allergy meds.

    I am now covered by socialized medicine. But I am concerned about family and friends and strangers in the US. What can they do about the Hell they will descend into, logistically and financially, if they also pick up COVID-19?

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