On Monday, the Congressional Research Service (CRS) released a memorandum requested by Sens. Tom Coburn (R-OK), Orrin Hatch (R-UT) and John Cornyn (R-TX), which found that HHS “missed seven deadlines mandated by the new law.” “Future months are unlikely to see HHS improve its record of compliance,” Coburn wrote on his Web site. “The Department failed to meet one-third of 22 deadlines in six months, yet now the Department has less than three months to meet another 29 requirements required by law.”
On Wednesday, in response to a request from Cornyn, CRS issued a different report showing that “of the 12 reform-related final rules issued this year by the Health and Human Services (HHS) Department, 10 came in the form of ‘interim final rules,’ which don’t include a public comment period.” Cornyn responded to the report by offering legislation forcing HHS to consider public comments for all new regulations.
Cornyn is trying to have it both ways. Forcing the agency to abandon the common practice of using interim final rules to meet legislative deadlines would only slow down the implementation process, bolstering the GOP’s claim that HHS was not complying with the law. Interim final rules allow federal agencies to issue regulations before responding to every public comment it receives. Agencies are required to respond to all comments and can address any concerns in the final rule.
In fact, relying on the very same technique that CRS used to identify the interim final rules in the ACA, I searched the GPO Access electronic rulemaking database using the advanced search mechanisms that allow identification of only final rules, and searching the phrase “Medicare Prescription Drug, Improvement, and Modernization Act of 2003” — signed into law by President Bush — found at least 6 interim final rules. Turns out this is a fairly common practice:
– “We implemented section 303 and 304 of the MMA in an interim final rule published in the Federal Register on January 7, 2004.
– Medicare Program; Competitive Acquisition of Outpatient Drugs and Biologicals Under Part B; Interim Rule
– Medicare Program; Physicians’ Referrals to Health Care Entities With Which They Have Financial Relationships (Phase II); Interim Final Rule
– January 6, 2004 interim final rule with comment period (69 FR 828), section 411(a)(1)(B) of Pub. L. 108-173 provided that hold harmless transitional corridor provisions shall apply to sole community hospitals located in rural areas.
– April 6, 2004 interim final rule with comment period excludes radiopharmaceuticals from the data reporting requirements that apply to Medicare Part B covered drugs
– On January 7, 2004, an interim final rule was published to implement provisions of the MMA applicable in 2004 to Medicare payment for covered drugs and physician fee schedule services.
Cornyn’s office did not return calls for comment.