Health and Welfare Welfare (HHS) is raising concerns, as the full extent of the impact on nursing homes is not yet clear, ending more than 50 years of general involvement in creating rules. The change could also limit the authority's authority in issuing rules, such as the minimum staffing delegation of previous administrations.
That said, sector experts believe that the policy moves of HHS Executive Director Robert F. Kennedy Jr. will keep the existing process for rulemaking largely unharmed.
HHS' new policies generally do not appear to exempt items such as annual notices.
“I can't imagine a controversial rule where there is a huge potential impact there and not a moment of procedural reasons, without notification or comment,” Ellsworth said.
Administrative Procedure Act (APA) – said federal laws regulating how federal agencies create and issue rules and regulations, and how courts review the actions of agencies, still apply in these cases. Furthermore, there are many precedents and case laws where APAs should not and should not be applied.
“The evidence is ultimately in the pudding, right? As someone who has been active in the (skilled nursing) field for a long time,[APA]is a pretty worn-out law and practice, and it takes a lot to be overturned,” Ellsworth said.
In fact, APAs have been around for a long time, so industry leaders cannot escape following existing practices in rate notifications and other rules. For example, the comment period for Advanced Notice and Skilled Nursing Facilities Future Payment System (SNF PPS) has been burned into the process for at least 50 years, with the proposed rules being released in July and implemented like clockwork in October.
“Nothing will change,” Ellsworth said.
When updating the rule creation process, Kennedy Policy does two things: First, we will introduce exemptions to the APA for issues relating to agency management or personnel, or public property, loans, grants, benefits and contracts.
The APA mostly protects the comment period, and the new policy creates specific instances where an institution can abandon this part of the process.
Second, if the procedure is “infeasible, unnecessary, or in opposition to the public interest,” removes the previous instructions to allow the agency to use the “justified cause” exemption sparingly. This part of the policy may muddy water when it comes to the use of APAs related to CMSs that issue rules such as staffing delegation.
The leader said he was looking at policy notifications primarily related to the agency's internal controls. Policymakers cannot forget to publish rules for comments regarding how outside parties, such as nursing home providers, will work with agents.
At the same time, policy has language to raise questions about implementation for some nursing home advocates.
“Agencies may abandon public participation for “justice reasons” if they find the process “infeasible, unnecessary, or in opposition to the public interest,” said Linda Couch, Senior Vice President of Policy at Reading. However, she added: “We don't know the extent to which this will affect us. Our hope is that there is nothing we regularly discuss about the impact on seniors and the providers who serve them.”
Holly Harmon, Senior Vice President of Quality and Regulation at the American Medical Association and Senior Vice President of National Center for Assistance of Living (AHCA/NCAL), said the association is committed to continuing its role in ensuring provider voices are heard, either through the rulemaking and comment process or through other channels.
“It can provide meaningful insight into how Washington's decisions affect patients and providers in communities across the country,” Harmon said. “The goal remains to promote and open dialogue with agencies such as HHS and CMS to develop reasonable regulations that support seniors, caregivers and the larger health care system. We will continue to work on and will rely on decisions that have a direct impact on long-term care.”
Congressional Rules: Biden's Staffing Duties
However, staffing rules are different animals. Or at least, future regulations. It could begin as a proposal from the Biden administration and thus facilitate it being rejected by the court, rather than a by-product of a particular Congressional directive that could determine whether the APA would apply to such future rules.
Furthermore, the now-overturned doctrine of Chevron gives tribute to how previously HHS and other federal agencies interpreted how they previously applied to rules such as staff mandate. And since the Chevron doctrine was dismantled, its interpretation now depends on the court, Ellsworth said.
“The Fisheries Case speaks entirely about the Management Procedure Act, which is one of the reasons why there is no need for an agency to interpret the law that requires the APA to issue rules and make public comments on them.” “The staffing rules are a bit of another animal. There is sufficient legal basis to issue that rule in the first place, in that there are fundamental questions about it.”
Policy as a rationalized effort
The idea of promoting rules without public transparency is counter to the direction Kennedy wants to move agents, Ellsworth added. After all, Kennedy talks a lot about transparency and creating a situation where controversial rules are not exposed to public comments will not scream for transparency.
If anything, the new policy is consistent with the administration's efforts to streamline the process, and is a detail about trimming additional requirements that agents have imposed on themselves, Ellsworth noted.
“That being said, concerns could potentially exempt grants from public comments,” Ellsworth said. “The widespread adoption of grant design and availability can make the public more heavier. The general rule is that the more inputs the better the final product.”
Regarding the good faith exemption, the policy directive states that APA rules still apply, he said. If HHS starts to abuse that exemption, Ellsworth expects there will be court challenges and pleadings to Congress.
“This may be the tip of the iceberg. It can go in many directions, but this administration says it wants to streamline things and eliminate unnecessary restrictions,” Ellsworth said. “There could be positives and negatives in all of this, but… I don't think we're sanctioning in any way when it comes to going on the path of issuing a lot of regulations. In fact, I'm seeing the overall tone of this administration move in the opposite direction.”
