![]() Thus, any Medicaid or CHIP regulation issued before January 2013 will expire on January 2023 unless the Department “assesses” and, if necessary, “reviews” the regulation. Ten years before that date is January 2013. Two years from that date would be January 2023. It provides that Medicaid and CHIP regulations will expire at the later of: (1) two years after the proposal takes effect, (2) ten years after the regulation was originally promulgated (following notice-and-comment rulemaking procedures), or (3) ten years after the Department “assesses” and, if necessary, “reviews,” the regulation.įor example, assume that the Department publishes the proposals as a final regulation in mid-January, and makes it effective 30 days later. ![]() The proposal would require the Department to conduct a retrospective review of almost all of its regulations, including those for Medicaid and CHIP, under penalty of expiration. Having failed to do so, the Trump Administration is now trying to undercut the ability of the incoming Biden Administration to make the Department, and the programs it administers, work. Over the past three and a half years, the Department has used these same communications tools, along with section 1115 waiver authority, to try to “transform” Medicaid. To carry out this responsibility, the Department has, since the creation of these programs, relied on regulations and subregulatory guidance to inform states, providers, managed care plans, and beneficiaries about their duties and opportunities under these laws. The Department is the Executive Branch agency responsible for implementing the Medicaid and CHIP statutes that Congress has enacted. What’s going on here? Let’s take a step back. Under last week’s proposal, regulations that have been issued through the notice-and-comment process would automatically expire unless the Department reviews the regulation before the expiration date. ![]() Under that proposal, SMDs would not “have the force and effect of law” because they are not issued using notice-and-comment rulemaking process that produces regulations. It pairs nicely with the ironically-captioned “Good Guidance” proposal the Department published on August 20 targeting subregulatory guidance like State Medicaid Director letters. The public has until December 4 to comment (in the case of Medicare regulations, until January 4). Under this proposal, almost all regulations that the Department does not review within certain periods of time will automatically expire. It’s a thinly-veiled effort to put the Department in a procedural straight jacket and “JAM” up the works just in time for the onboarding of a new Administration. A more appropriate acronym would be “JAMS” (Just Another Means of Sabotage). It did so by proposing a new regulation, which has the misleading acronym “SUNSET” (Securing Updated and Necessary Statutory Evaluations Timely). On November 4, the Department of Health and Human Services proposed to require itself to review almost every regulation it has ever issued, including those affecting Medicaid and CHIP.
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