Various branches of the Department of Health and Human Services, including the Centers for Medicare & Medicaid Services (CMS), are currently accepting comments on a proposal to repeal the Securing Updated and Necessary Statutory Evaluations Timely (SUNSET) rule. The agencies have determined the rule to be statutorily questionable, procedurally unsound, and overly burdensome.
Rushed through at the end of the Trump administration, the SUNSET rule would require federal health agencies to reassess and rereview all regulations periodically. Any failure to do so, whether deliberately or as a result of insufficient time, would cause a rule to automatically expire. This would create a significant new administrative burden, forcing agencies to engage in hundreds of hours of pointless busywork each year, necessarily reducing their capacity to manage other, more critical issues—like ensuring access to care and coverage during a public health emergency. It would also lead to regulatory uncertainty, and potentially chaos, for Medicare beneficiaries, providers, and payers. Lastly, it would also allow administrations to withdraw regulations surreptitiously, through silence and inaction, without going through the required steps that mirror the process of creating a new rule. This would mean no notice-and-comment rulemaking for the repeal of some rules, a significant weakening of the public’s right to be heard.
The SUNSET rule was controversial from the start. The Trump administration proposed it on November 4, 2020, requiring that comments on most aspects of the rule be submitted within a month. Only Medicare program regulation comments had more time, not being due until January 4, 2021. The proposal faced widespread objections and criticism, both for its substance and the rushed rulemaking process. Despite these objections, the Trump administration moved forward, drafting a final rule before the comment period had even ended. The administration eventually finalized the rule on January 19, 2021, in one of its final acts.
Unsurprisingly, the rule immediately faced litigation for its procedural shortcuts and content. The incoming Biden administration put the effective date on hold for one year, citing the litigation and procedural concerns, until March 22, 2022. Now, the Biden administration proposes to withdraw the rule in its entirety before it can go into effect.
In addition to our concerns about regulatory uncertainty and burden, Medicare Rights objects to any attempt like the SUNSET rule to undermine or shortchange notice-and-comment rulemaking. We use comment periods to share the experiences of people with Medicare with administrations of both political parties. Whether the rulemaking is to establish a new rule, modify existing rules, or repeal rules, administrations are required to read comments and take them into account in deciding whether and how to move forward. The SUNSET rule would allow administrations to simply allow a rule to disappear, shortchanging the ability of stakeholders to make their voices heard.