Advocacy in Action

Carter L. Alleman, J.D.

A Second Bite of the Advocacy Apple

Schoolhouse Rocks! taught generations of children the legislative process. Along the way a “lowly ole bill sitting on Capitol Hill” worked its way through the House of Representatives to the Senate and became law with the President’s signature. The show missed the next crucial step, the executive branch’s enforcement of the law through the promulgation of regulations. The rulemaking process allows advocates one more attempt to shape legislation and regulations before they become enacted. Rulemaking is the second bite of the apple, legislative advocacy is the first.

Rulemakings are governed by administrative law. Federal regulations fall under the Administrative Procedure Act (APA); states have similar laws. The crux of the APA is to allow an openly systematic way for legislation to be promulgated into regulations which allows the public to voice its opinions. The promulgation of the Medicare Access and CHIP (Children’s Health Insurance Program) Reauthorization Act of 2015 (MACRA) regulation offer a chance to see the APA in action.

After the passage of MACRA, Centers for Medicare & Medicaid Services (CMS), an administrative agency, released a Request for Information (RFI). A RFI is a tool for rule makers to ask interested parties how they would like to see the legislation implemented and share some of the rule makers’ thoughts on the implementation. CMS released its RFI in September 2015 and accepted responses until November 2015. The ACOS submitted its response to the RFI. After the comment period closed, CMS reviewed the comments it received.

CMS released the 900-page rule proposal in May 2016. A typical comment period lasts 60 days, sometimes extensions are given for an additional 15 days or more depending on the reason for the request. The RFI comment period was extended due to the length and complexity of the questions CMS was seeking responses to. Even though the medical community wanted more time to complete its comments, the MACRA statute had a start date of January 1, 2017 and through informal discussions with CMS it came to light without comments otherwise, it would stick to that start date. This prevented the medical community from asking for an extension as it would push the final rule’s publication closer to the start date.

While comments were being drafted, CMS held a series of listening sessions with the public. These listening sessions allowed the public to ask questions on the rules and hear from CMS about the proposed rules. CMS did not take any comments which is common as all comments need to be submitted in writing to allow for an open process.

The comment period closed June 27, 2016. The ACOS along with over 4,200 individuals and organizations submitted comments to CMS. CMS will now review these comments and issue a final rule in late October, early November 2016.  CMS can make changes to the proposed rule as long as the changes are a natural and logical outgrowth from the rule and statute. A great deal of the comments that were submitted asked for such modifications due to uneven interpretation and implementation of the statute to the proposed rule.

The rulemaking process allows the ACOS to have one more chance to influence policy makers in Washington.