Many comments were submitted in response to proposed rules released by the Centers for Medicare and Medicaid Services (CMS) on February 18, 2020. There has been very little communication from CMS about how it plans to respond to the comments.

The process of developing rules goes back to December of 2013 with the first rules proposal that was met with a wave of opposition and comments that prompted CMS to reconsider and seek comments in response to the posting in February of 2020.  Penalties have not as yet been imposed based on the statutory language. Over 80 comments  in total have been submitted primarily from a broad spectrum of insurance trade associations, self-insured employers, TPAs, state funds and individuals. Click here to see comments.

A review of comments shows a number of concerns, including:

The proposed rules appear to be unconstitutional

Many commenters requested that the rules be withdrawn

The rules process did not comply with the Unfunded Mandates Reform Act of 1995

The statement of impact on small employers was insufficient to meet requirements

Areas of comment also included:

  1. A more complete definition is needed detailing situations not subject to penalty
  2. Safe Harbors for reporting should be expanded
  3. Thresholds for imposition of penalties with respect to timeliness and content of reports should be more flexible
  4. The amount of the penalty is excessive and does not fit with the reporting error
  5. A contradiction between Section 111 reports and amounts identified in conditional payment recovery should not be errors subject to penalty
  6. CMPs should not be imposed retroactively
  7. Clarification is needed with respect to appeals procedures
  8. There should be expanded use of Telehealth
  9. One commenter requested clarification that the CMPs would not apply to Medicare Advantage and Prescription Drug Programs
  10. CMS should take administrative notice of reports to other federal agencies (e.g. Longshore)
  11. The statute of limitations should be three years

Given the number of comments and the detailed concerns identified it normally would take some time for CMS to respond and file rules in final form. The agency has been focused on the Coronavirus and recent emergency matters that may have taken key staff away from finalizing the rules. However, the agency is in the position now after completing the rules posting and comment period to move ahead to finalize or withdraw the rules in response to the comments. We hope CMS chooses to withdraw the rules, reaches out more broadly to the stakeholders, and develops rules that take notice of the comments submitted.