Greve on HHS Issuing Interim Rules Without Notice and Comment

December 16th, 2013

Michael Greve comments:

The second question is whether HHS can issue the rule as an IFR—that is, without full notice and comment and with a 30-day delay been the issuance of the rule and its taking effect. The Secretary has general statutory authority to issue IFRs, 42 U.S.C. §300gg-92, and the APA permits the process if the agency “for good cause” finds that notice and comment procedures are “impracticable, unnecessary, or contrary to the public interest” and incorporates a statement of the finding and its reasons in the IFR. 5 U.S.C. 553(b)(B).

Courts have actually been fairly stingy in interpreting this standard, for fear that agencies might use it as an all-purpose vehicle to evade the APA. For example, an agency may not simply back itself up against a statutory deadline, yelp “impracticable!,” and make do without notice and comment. That’s pretty much what happened here, though.

“There have been unforeseen barriers to enrollment on the exchanges,” HHS explains its “good cause.” You don’t say. Further, “[t]he need to provide additional opportunities for consumers to enroll was not clear until a date by which a 30-day comment period and 30-day delay of the effective date would make it impossible to implement” the added “flexibility” for consumers and issuers.

Let’s see: the “unforeseen barriers” are principally a result of HHS’s own fantastic screw-up. And the fact that wasn’t going to work was obvious to anyone except, apparently, HHS by October 3 or 4 at the latest—which would have left plenty of time to delay implementation and to crank the necessary rules through notice and comment. Instead, the agency is simply improvising one day at a time, blowing smoke along the way.

It’s probably not worth paying much attention to this particular act of extra-legal creativity. For one thing, you won’t find a plaintiff to challenge the rule in court. For another thing, HHS isn’t remotely done. It “will consider moving the [just-extended] deadline to a later date should exceptional circumstances pose barriers to consumers enrolling on or before December 23, 2013.” The agency says it “does not expect” this. I do.