The Centers for Medicare and Medicaid Services (CMS) published a proposed rule for Medicaid managed care (MMC) on August 20, 2001. This rule would effectively supercede the final MMC rule published on January 19, 2001. To prevent the January final rule from taking effect, CMS also published a notice of a "further delay in effective date" until August 16, 2002 (See 66 Fed. Reg 43090, Aug.17, 2001), and solicited comments on the length of the delay.
This delay, and the two previous delays referred to in the notice, fail to comply with the federal Administrative Procedures Act and are therefore ineffective. As a result, the January MMC regulations should be in effect. So, while submitting comments on the proposed rule is essential, it is equally important that we be "on record" opposing the further delay. If we do not voice our opposition to the further delay, any legal efforts to have the January regulations implemented will be made more difficult.
NHeLP and Families USA are requesting that you submit comments specifically opposing this delay. We have attached a sample letter of comment from NHeLP that addresses the delay and includes a brief description of how CMS' actions fail to meet statutory requirements. If you cannot submit comments on behalf of your organization, please consider sending them as an individual. If you have any questions, please contact Mara Youdelman with NHeLP at 202-289-7661 or youdelman@healthlaw.org.
Comments on the delay are due no later than 5:00 pm, October 16, 2001 (mail one original and three copies to Centers for Medicare and Medicaid Services, Department of Health and Human Services, P.O. Box 8016, Baltimore, MD 21244-8016; or courier to Room 443-G, Hubert H. Humphrey Building, 200 Independence Ave SW, Washington, DC 20201 or Room C5-16-03, 7500 Security Blvd., Baltimore, MD, 21244-8016).
SAMPLE LETTER
for receipt by 5:00 pm, October 16, 2001: mail 1 original and three copies to address below; or courier to Room 443-G, Hubert H. Humphrey Building, 200 Independence Ave SW, Washington, DC 20201 or Room C5-16-03, 7500 Security Blvd., Baltimore, MD, 21244-8016
(insert date)
Centers for Medicare and Medicaid Services
Department of Health and Human Services
P.O. Box 8016
Baltimore, MD 21244-8016
RE: CMS - 2001 - IFC
Medicaid Managed Care: Further Delay of Effective Date
We are writing to oppose the "further delay of effective date" of the final Medicaid managed care regulations published on January 19, 2001. We believe this delay is both illegal and ill-advised. The proposed delay of implementation of the January regulations, like the two earlier delays announced by the Centers for Medicare and Medicaid Services (CMS), fails to comply with the Administrative Procedures Act (APA). Courts have held that the effective date of a regulation is a substantive term of the regulation itself, and the APA requires that the public be given prior notice and opportunity to comment before substantive terms of a regulation may be legally changed. While there are some exceptions to this rule, none of the reasons offered by CMS for failing to give prior notice falls within those exceptions. Therefore, the January final regulations are currently in effect and CMS should undertake their immediate implementation.
Further, the managed care provisions in the Balanced Budget Act were enacted with the understanding that in exchange for the authority to mandate enrollment of Medicaid recipients in managed care without a waiver, states would be required to comply with basic patient protections. Yet, over four years later, Medicaid beneficiaries are certainly subject to mandatory enrollment, but are still waiting for HHS to effectuate patient protections. The final regulations published in January were the result of years of work and extensive public participation, and CMS should implement them without further delay. If, after a reasonable amount of experience operating under the January regulations, CMS still believes that alterations are advisable, it should propose them at that time and give the public the required opportunity to comment on the proposed changes. In the meantime, beneficiaries should not continue to be deprived of the protections contemplated by Congress.
[If you wish, add a sentence/paragraph on your organization and how your clients are affected by the delay in implementation]
Sincerely,
