New details confirm that the Biden administration prejudged a massive regulatory change that would benefit Planned Parenthood and increase user fees on the Obamacare exchange rates.
The Biden administration already received criticism for limiting public comment to fewer than 30 days and failing to adequately respond to the public comments it did receive.
The Biden administration published a final rule, however, conclusively showing that it refused to incorporate public comments from legal and regulatory experts concerned about the massive changes and rushed regulatory process. It even refused meetings on the topic in order to push the changes through to final publication.
“Chiquita Brooks-LaSure, Administrator of the Centers for Medicare & Medicaid Services (CMS), approved this document on September 13, 2021,” the document reads. That date is two days prior to a public meeting Rachel Morrison, a policy analyst at the Ethics & Public Policy Center, had with the Office of Management and Budget and the Department of Health and Human Services to discuss serious legal deficiencies in the proposed rule.
The public may give feedback on proposed regulatory changes through both public comments and public meetings. The regulatory agency is supposed to consider and respond to public feedback when writing regulations. Obviously, the rule having been approved by the CMS administrator prior to the conclusion of the public meetings shows that the agencies involved failed to do so.
At least one other group reports that it was refused requests for similar meetings, even though federal procedure is to hold such meetings with experts. A representative with StatesWork, a nonpartisan, educational organization assisting states in improving health care systems, asked for meetings that the group did not receive.
The regulatory change relates to a requirement in the Patient Protection and Affordable Care Act, known as Obamacare, requiring separate billing for medical procedures that end unborn human lives. Pro-life Democrats whose votes were required to pass the legislation said this provision would ensure no federal funds were spent on abortions. Plan users would write one check for their premium and another for an abortion rider.
However, the Obama administration ignored the statutory language and made it harder for plan users to know if they were funding abortion by allowing insurers to bury the abortion surcharges deep in plan documents. Before the end of the Trump administration, the regulation governing such payments for abortion was updated to make it compliant with the law as written. Planned Parenthood and then-California Attorney General Xavier Becerra sued to block the rule. Becerra was rewarded by Biden, who regularly emphasizes his devotion to the Roman Catholic Church, with an appointment as secretary of Health and Human Services.
On July 1, the Biden administration proposed to eliminate and replace the Trump administration’s separate billing requirement. Normally, such an important and economically significant rule change would require giving the public months of opportunity to comment, followed by months more of a rigorous review of and response to the comments, before finalizing the rule. In a stunning move, the Biden administration provided only 28 days for public comment, thereby receiving only 341 comments.
By contrast, President Donald Trump gave the public a full two months to comment on his administration’s rule governing the billing for abortion services, receiving more than 75,000 public comments. This was consistent with Executive Order 12866, signed by President Bill Clinton in 1993, which provides that rules should generally have at least 60 days for public comment. The Administrative Procedure Act says that unless it’s a national security crisis or other urgent situation, less than 30 days of review is not advisable.
What makes the abnormally short public comment period even more surprising is that HHS admitted in its final draft that this rule “is expected to be a ‘major rule’ … because it is likely to result in an annual effect on the economy of $100 million or more.”
One of the most difficult and time-consuming portions of the regulatory process is the period in which an agency reviews and responds to public comments, which they are required to do by law. The Administrative Procedure Act (APA) requires any rule that has force or effect of law to be open to public inspection and comment before it’s finalized. Agencies must take comments into account.
That means an agency must read and respond to them in the preamble to the final rule. If they don’t, the agency has violated the APA and the regulation can be blocked. Limiting the public comment period to less than a month truncated the number of public comments drastically, but regulatory experts say that less than two weeks was way too little time to review several hundred comments, some of which were dozens of pages long and dealt with comprehensive legal and regulatory arguments. The draft final rule indicated no changes from the July 1 proposed rule in response to the substantive public comments on the controversial portions of the proposed rule.
“To me, this signals that unfortunately [the Centers for Medicare & Medicaid Services] has already made up its mind about all of these complicated issues and is rushing to finalize the rule without really considering the public comments and frankly without giving the public enough opportunity to weigh in on a number of controversial provisions,” said Randy Pate, former director of the Center for Consumer Information and Insurance Oversight at HHS. He noted that the rule change not only covered the separate billing for abortion issue, but also raised premiums on users and removed flexibility for states in how they operate their insurance exchanges.
The latest evidence confirms the agency prejudged the rule and failed to consider the public comments it received.