Updates 2023/03
Wolverton at AKIN law firm discusses.
Section 102 of H.R.3391 - Medicare Regulatory and Contracting Reform Act of 2001
https://www.congress.gov/bill/107th-congress/house-bill/3391/text?s=1&r=33
I am not sure there is any matching regulation so 1871(e)(1) may be viewed as self implementing and may have no explicit regulatory discussing in the CMS CFR.
An example of CMS going to some detail and claiming retroactivity due to statutory instruction, under proper use of 1871 is found at: 3 FR 29699-711, Long term care hospitals, 5/22/2008.
https://www.govinfo.gov/content/pkg/FR-2008-05-22/html/08-1285.htm
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.
##
This law 1871 also contains a clause, 1871(a)(4), that a final regulation must be a "logical outgrowth" of a proposed regulation, or else it triggers a new public comment period. For example, CMS could propose a timeline be 12 or 24 months, and finalize at 18 (a logical outgrowth). But CMS can't propose "Policy A" and finalize as "Policy Z" when Z is wholly different policy that is not a natural outgrowth.
##
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.
#####
From Fed reg 2008, re a retroactive rule claimed by CMS with detail:
Section 1871(e)(1)(A) of the Act provides that 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. As explained in the paragraph above, the MMSEA requires the
Secretary to implement various policy changes either contemporaneously
with the enactment of the MMSEA on December 29, 2007 or beginning with
cost reporting periods beginning on or after December 29, 2007 as
applicable. Therefore, under the authority of section 1871(e)(1)(A)(i)
of
[[Page 29708]]
the Act, we are making the provisions of this interim final rule with
comment period that implement sections 114(d) of MMSEA retroactive to
December 29, 2007. The statute also requires that section 114(c)(1) and
(2) be implemented beginning with cost reporting periods beginning on
or after December 29, 2007. Therefore, under the authority of section
1871(e)(1)(A)(i) of the Act, we are making the provisions of this
interim final rule with comment period that implement section 114(c)(1)
and (2) effective for cost reporting periods beginning on or after
December 29, 2007. Additionally, as explained previously, the Secretary
also finds that it would be contrary to the public interest if these
provisions were not made effective on December 29, 2007 or for cost
reporting periods beginning on or after December 29, 2007, as indicated
above. Therefore, under the authority of section 1871(e)(1)(A)(ii) of
the Act, we are making these changes effective under the timeframe
noted above.
For the same reasons noted above, we find good cause under section
553(d)(3) of the APA to waive the 30-day delay in effective date.
tagssa
tagretroactive
