The Trump administration just released its first major regulation for public comment.
Here’s what you need to know and how you can participate.
The APA is a BFD
What if there were an law on the books that required the government to alert you before it undertook any major policy action?
- And what if that law said that you (and any other member of the public) have to be given an opportunity to express your opinion about a proposed policy?
- And what if the law further said that your input not only has to be read but has to be taken into account in the policy process?
- And if your concerns were not addressed, what if the law said that the government has to provide an explanation for why or why not?
Sounds pretty good, right?
If a bill like that were proposed today, it would be heralded as a groundbreaking citizen’s empowerment initiative, a check on government overreach. But would We The People actually take the opportunity to participate and go on the record about how our laws are implemented?
Here’s the thing: that law already exists. It is called the Administrative Procedures Act, and it was signed into law in 1946, at a time when record numbers of new laws and regulations were under development (Remember the New Deal?). The APA set up a process for federal agencies to make “rules,” (those statements “designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.”)
School House Rock didn’t cover it, but it is very important!
After a bill becomes a law
Laws passed by Congress set the parameters of a new policy, but the executive branch must decide and explain how it will carry out laws. Agencies do this through regulations, which carry something very close to the force of law, and guidance, a less formal way to explain the way the agency will approach certain questions that come up in enforcement.
The whole point of the Administrative Procedures Act is that you can’t have regulations popping up that significantly impact people without warning or alerting the public, allowing them to weigh in, and addressing any concerns or new information that comes up in that process. This “Notice and Comment” process is also important because it can later establish standing to challenge the regulations in court if a concern with the regulation was raised and not addressed.
How it works:
“Formal Rulemaking” may include actual hearings and in-person meetings before a regulation is released.
“Informal Rulemaking” is much more common and requires:
- “Notice of Proposed Rulemaking” (NPRM) to be published in the Federal Register
- Comment period providing an opportunity for the public to weigh in on the proposed rule with written input
- Consideration by the agency of the public comments and other relevant material
- Publication of a final rule not less than 30 days before its effective date, with a statement explaining the purpose of the rule and addressing the input received.
(I’m skipping a few steps… this chart from George Washington University’s Regulatory Studies program fills in a few gaps… also see the accompanying article on “Opportunities for Stakeholder Participation in U.S. Regulation” from former OIRA head, Susan Dudley.)
APA in the News Today
New Health Care Regulation Released
So why are we talking about the APA? Well, the first major Trump administration rule will be published in the Federal Register on February 17, 2017 and open for public comment until March 7, 2017.
Patient Protection and Affordable Care Act; Market Stabilization www.federalregister.gov
The 71-page rule contains the first administrative changes that the Centers for Medicare and Medicaid Services (CMS) propose for the Affordable Care Act (Obamacare). These are changes that HHS thinks can be made within the authority of the existing law and includes:
- Reducing the open enrollment period for 2018 plans from Nov 1, 2017 — Jan 31, 2017 to Nov 1, 2017 — Dec 15, 2017.
- Setting a higher bar for “special enrollment periods” and requiring increased documentation for all claims of special enrollment circumstances.
- Allowing insurers to apply a premium payment to past debt rather than a new premium payment.
- Changing minimum coverage requirements (Actuarial Values or “AVs”) for health plan “metal” levels for 2018 plans.
- Allowing states to determine whether plans meet their “network adequacy” requirements.
- Reducing the percent of Essential Community Providers (ECPs) who serve primarily low-income patients that insurers must cover from 30% to 20%, and allowing states to identify qualifying ECPs.
Yes, it’s complicated, but it’s important.
If that sounds super in the weeds, it is, and that’s usually how it is with regulations. While the public can comment, usually it is just too complex for people with busy lives to dig in and even know what to say. In fact, for most regulations, the only ones really paying attention are the industries affected by potential regulations.
Be relevant to be counted.
While the Rulemaking process gives anyone a very tangible, powerful way to contribute to policymaking, it is not to be done in a haphazard way. Your comments must be relevant to be considered. Agencies are not elected representatives; their responsibility is defined by their legal obligations and the direction they receive from the President or — in the case of independent agencies –from their boards. They are only under obligation to consider comments that are relevant to the rule being considered.
For your comment to have impact, it must respond directly to the issue under consideration and it must be received within the open comment period in the manner specified by the agency. (This is why, by the way, we at POPVOX deliver comments through the official regulatory channel at regulations.gov.)
- Invest some time learning what the agency is actually proposing, and why.
- Express your views, concerns, or ideas clearly.
- The strongest kinds of reasons are ones that help the agency do the job that Congress told it to do. So pay attention to anything in the topic posts that explain the goals, requirements, or limits of the agency’s statute.
Think you’re ready? Let’s do this!
Are you ready to take the plunge and submit your own public comment on the proposed rule? Great! Here are some resources:
- Check out the rule (you don’t have to read the whole thing, but at least look over the summary).
- Research online — check out what others are saying about it. (We found articles in HealthAffairs, NPR, Modern Healthcare, and Fierce Healthcare, Kaiser Health News).
- Review the Regulations Room tips for an effective public comment
- Submit your comment through POPVOX.
In a time of heightened attention and civic engagement, the regulatory process is really the advanced track for those who really want to have a say in their government. Congratulations on taking that step!