Solomon Center Team Challenges Short Comment Period for New Healthcare Regulation

On March 7, 2017, a team of students and faculty from the Yale Law School, the Yale School of Medicine, and the Yale School of Public Health submitted comments to the U.S. Department of Health & Human Services (HHS) responding to a proposed rule to modify regulations concerning the Health Insurance Marketplaces provided under the Patient Protection and Affordable Care Act (ACA). The proposed rule, published in the Federal Register on February 17, 2017, proposes several changes to regulations governing the Marketplace and insurance plans available to consumers. The agency required comments to be submitted by 5 p.m. on March 7, just 18 days after the proposal’s publication. This proposed rule represents one of the first significant changes that the Trump Administration plans to make to the ACA’s health insurance reforms.

With the support of the Solomon Center for Health Law & Policy, Nathan Nash ’17, McKaye Neumeister ’17, Camila Vega ’17, Elizabeth Dervan ’17, Nora Niedzielski-Eichner ’18, Lisa Fulchino (YSPH ’17), and Blake Shultz (YSM ’19) authored a public comment arguing that the 18-day comment period required by the agency was impermissibly short under the Administrative Procedure Act. Solomon Senior Fellow and Distinguished Visiting Scholar Jason Levitis ’05, a former U.S. Treasury Department official under the Obama Administration, contributed to these comments. “Allowing sufficient time for public comments on proposed rules is crucial to ensuring robust deliberation and participation,” said Neumeister. “The highly truncated comment period that HHS used here subverts the democratic principles on which the modern administrative state rests.”

Federal law, agency guidance, and judicial precedent generally require federal agencies to allow at least 30 days for public comment on proposed regulations to give stakeholders a meaningful opportunity to provide feedback. As the comment’s authors explain, the 18-day comment period provided by HHS violates this practice and unlawfully denies the public the ability to adequately assess the impact of these changed regulations for insurance plans in the Marketplace. The authors emphasize that providing a meaningful opportunity for consumers and other stakeholders to respond to this rulemaking is especially critical given that it could have consequences for millions of Americans receiving coverage through the Marketplace. “Millions of lives are at stake when it comes to changing the ACA, making it vitally important that every opportunity provided by law for public input is observed,” said Nash.“An unusually and unjustifiably short comment period is not the way to start.”

The comments represent the first public action taken by the interdisciplinary Solomon Center team, which emerged in January 2017 in response to promises made by the Trump Administration and Congress to alter the national health care landscape. The team plans to continue tracking federal developments in health law and policy. “Unfortunately, the abbreviated comment period is consistent with the hastiness we’re seeing on the Hill right now,” said Levitis.  “As policymakers continue to consider sweeping changes to the health care system, we will keep working to ensure that proposals reflect the careful consideration that such a complex system requires.”