Ever Wondered How CMS Makes The Rules? Read This.

Doesn’t it seem like every CMS announcement is cast in a shadow of uncertainty? In the wake of fall’s big final rule announcements for FY2018 (like OPPS, MPFS, and the QPP), we thought we’d give you some insights as to how those rules actually get made.

Shrouded in language like could, would, may, and possibly, it’s no wonder that many ECPs find themselves anxious and a bit confused about regulatory issues. Well, that’s the Federal rulemaking process, and it’s governed by the Administrative Procedure Act (APA) (5 U.S.C. Chapter 5).

According to the APA, most Federal agencies must provide public notice of proposed rules (new regulations that are “in the works”) and allow the public to submit written comments for consideration. The agency also must make the comments publicly available online. The usual vehicle for this is the Federal Register, a daily publication available online at www.federalregister.gov. If you’re interested in some light reading, it contains the full text of rules, proposed rules, and notices from Federal agencies as well as Executive orders and other presidential documents.

The Affordable Care Act (ACA) allows Medicare to change payment rules without new legislation.

After the commentary period has closed, the agency reviews the comments in preparation for formulating the final rule. Although the final rule may or may not reflect changes indicated by the comments, the agency is required to describe and respond to the comments.

But wait, there’s more . . .

Final rules that have been deemed “economically significant” by the Office of Information and Regulatory Affairs (OIRA) will undergo an additional review by OIRA before being passed to Congress for review. Congressional actions and even Presidential actions can have an impact on final rules. However, the Affordable Care Act (ACA) put a twist on this process.  While previous significant rules would have required congressional legislation, the ACA allows Medicare to change payment rules without new legislation.

Proposed rules weave a long path from conception to final rule. Voices from lobbying organizations and the media can make it seem like these proposed rules cast a bigger shadow than they really do. So strive to be aware of major propositions, but also remember that the rule isn’t set in stone.

One more thing: Many eye care professionals (physicians and staff members) avoid commenting on proposed rules. Why? There’s a misconception that only “important” people comment. That’s simply not true. If you have an opinion, use the comment period to let CMS know what you’re thinking.

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