Monday, October 10, 2022

Nerd Note: Statute that CMS Can't Apply Changes Retroactively

From time to time a company has grounds to protest that an adverse change from CMS is being applied retroactively.  But generally, CMS's hands are tied from retroactive changes.

Here's the regulation.   

https://www.ssa.gov/OP_Home/ssact/title18/1871.htm

Rules and Policy Statements Aren't Retroactive:

(e)(1)(A) A substantive change in regulations, manual instructions, interpretative rules, statements of policy, or guidelines of general applicability under this title shall not be applied (by extrapolation or otherwise) retroactively to items and services furnished before the effective date of the change, unless the Secretary determines that—

(i) such retroactive application is necessary to comply with statutory requirements; or

(ii) failure to apply the change retroactively would be contrary to the public interest.


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For a Supreme Court case hinging on the details of CMS regulatory processses like the quote above, see Alina 2019:

https://www.supremecourt.gov/opinions/18pdf/17-1484_4f57.pdf

Readers might enjoy reading SSA 1871 as a whole.