BALTIMORE — CMS has announced it is asking for comments as the agency considers a delay of the effective date for its competitive bidding interim final rule. Issued in the waning hours of the Bush administration, the effective date for the rule was set 30 days after its Jan. 16 publication in the Federal Register. In documentation sent to Capitol Hill offices Friday, CMS listed that implementation date as Feb. 17.
Just hours after President Obama took his oath of office Jan. 20, White House Chief of Staff Rahm Emanuel sent a memorandum recommending that all federal agencies consider a 60-day extension of the effective date of any regulations that had been published but had not yet taken effect. The new administration wanted a chance to review questions of law and policy raised by any pending regulations, the memo said.
But according to Stacey Harms, manager of government affairs for the American Association for Homecare, the agencies "were not required to do anything under the Emanuel memo … they asked agencies to consider whether or not to extend the effective dates of those regulations, but they didn't have to."
On Thursday, AAHomecare sent a letter to HHS Acting Secretary Charles Johnson, with a copy to CMS Acting Administrator Charlene Frizerra, urging review and rescission of the last-minute competitive bidding rule.
"While the issuance of interim final rules is generally reserved for health care emergencies, this clearly was not such a case," the letter said. "Instead, the process was corrupted to push through a Bush Medicare program in the 11th hour of the administration — defying the spirit of transparent and open government … We hope that you will exercise the option outlined in [the White House memo] and review and rescind this rule, which was rushed into implementation without regard for the negative impacts the program will have on seniors and home care patients in America.
"As it stands," continued AAHomecare President Tyler Wilson, "the 'competitive' bidding program will actually reduce competition, along with health care quality and access to care for patients and seniors."
Earlier in the week, Sen. George Voinovich, R-Ohio, and House Minority Leader John Boehner, R-Ohio, also sent a letter to Johnson asking him to rescind the IFR before its effective date and resubmit a revised version for public comment. According to the Feb. 2 letter, "In the interim final rule, CMS elected not to pursue the traditional notice and comment rulemaking. We remain concerned that many of the recommended changes designed to prevent future access problems and confusion in the competitive bidding program were not incorporated or raised for public comment …
"Thoughtful and deliberate rulemaking by CMS was clearly anticipated by Congress, given the level of congressional and stakeholder concern during initial implementation," the Ohio legislators wrote. "As such, it would be appropriate for CMS to publish a proposed rule, ensuring that comments received during the comment period would be taken into account before any final rule is published. Such a collaborative and transparent process would be consistent with Congress' intent."
According to AAHomecare's Harms, a follow-up memo sent by Emanuel stated that in cases where agencies were contemplating extension of a regulation's effective date, the notice-and-comment period should be reopened for 30 days.
CMS' Friday notice said comments on delay of the competitive bidding IFR would be accepted through Thursday, Feb. 12. Since that's "a several-day notice," Harms pointed out, she urged stakeholders to get comments in quickly and noted they could be submitted electronically in order to meet the deadline.
That would give CMS "a couple of days to review the comments and determine whether or not to delay the effective date" of the IFR, Harms said.
Read the CMS notice in full, which includes instructions for submitting comments.
