Dec 14, 2015 - 12:00pm

We’re Keeping Count – One Rule at a Time: Do Regulators Really Care What the Public Thinks?


Senior Economist, Regulatory Analysis

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Health care worker
Obamacare isn't working for small businesses. Congress can help. Photographer: Andrew Harrer/Bloomberg

Regulators publish hundreds of proposed and final rulemaking mandates every month, but sometimes it is useful to step back from the total numbers and focus on just one example. This one, a holiday present from the Department of Health and Human Services (HHS).

On December 2, HHS published its proposed rule detailing the Patient Protection and Affordable Care Act HHS Notice of Benefit and Payment Parameters for 2017. This proposal took up 101 pages of fine print in that day’s Federal Register, totaling 111,363 words. At 250 words per minute, typical reading time for a college graduate, this proposed rule would take about 8 hours to read.  

The proposal covers Affordable Care Act operating rules affecting insurers, health plan sponsors, health care providers, and the general public under 23 separate topics – ranging from premium setting and state exchange operations to risk pools and patient safety standards. 

For many of these 23 topics, HHS lists several distinct requirements.  This is not really one rulemaking.  It is a composite of scores of proposed rules rolled into one rulemaking document. This mammoth document asks readers to answer over 200 questions, ostensibly to help the regulators make final rule decisions. But the most revealing line is this:

“To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on December 21, 2015.” 

The government provides only 20 days for the affected public to read, digest, assess and then draft comments on rulemaking decisions that will impact the future cost and availability of health insurance for millions of Americans! 

Does HHS really care what the public thinks?  Is 20 days really enough time to comment meaningfully on a complex, multifaceted regulation proposal, or is this “public comment period” a shameless attempt to disguise the fact that regulators have already decided what the final rule will be and do not care about the public’s lawful right to participate in the decision?

Before federal regulators can issue and enforce a new mandate, they first must publish a notice of proposed rulemaking.  The notice is supposed to explain why a new regulation is necessary, identify benefits, describe alternatives, assess compliance costs, and demonstrate that the approach selected is the most efficient. 

Most importantly, the notice gives the public an opportunity to comment about the proposed regulation by submitting arguments or data for the agency to influence its final decision.  Public comment is a legal right under the Administrative Procedure Act.

Presidential Executive Order 13563 directs agencies to provide at least 60 days for the public to digest a proposal and submit comments.  For lengthy, complicated, and potentially costly regulations, even 60 days is not enough time, and agencies occasionally allow a longer period, but the HHS proposal does the opposite.  No substantive rule proposed in recent months has provided such a short period for public comment. 

A comment that stands a chance of influencing a rule maker needs to say more than simply express agreement or disagreement:  It requires thoughtful analysis of complex legal practical issues, costs and benefits of the proposed rule.  Meaningful public comment takes time. 

A short comment period curtails public debate.   It appears that that the regulators have already made up their minds and do not really care to hear facts, arguments, and opinions from the regulated public.

The Obama administration has inundated American businesses with excessive regulations such as the HHS rule described here.  Collectively these regulations have raised costs and depleted the vitality of the American economy, slowing job growth and sapping wage growth. 

With little time left to it, the administration has indicated it intends to accelerate its rulemaking process.  The more the regulatory onslaught accelerates, the slower the economy is likely to grow.  Cutting comment periods reduces the obstacle of public input that might slow the regulatory juggernaut.

Submit comments electronically on “Patient Protection and Affordable Care Act HHS Notice of Benefit and Payment Parameters for 2017.” Search for Docket ID CMS-2015-0128.

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About the Author

About the Author

Senior Economist, Regulatory Analysis

Bird is a senior economist specializing in regulatory economics at the Chamber. His work includes analyzing and evaluating estimates of regulations’ costs and benefits produced by the government to identify significant errors and omissions.