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News & Press: Government Affairs News

Influencing CMS: Submitting Comments to a Federal Agency

Friday, May 18, 2018   (0 Comments)
Posted by: Bradley Coffey, MA, AAOE Government Affairs
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It's that time of year again! CMS is busy pushing out proposed rules for the yearly fee schedules. Here's more information about the process and how you can be most effective in submitting your comments on these proposals.

Federal rulemaking can be a complicated endeavor, for both the federal government and the public it serves. But it serves a valuable purpose in modern government. Since the rise of the administrative state, public policymaking has gotten more complicated--far too complicated for 535 Members of Congress to devote their time.

Demands for more precise regulations has led to an avalanche of Executive Branch rulemaking. So much so that one of the primary objectives of the Trump administration has been to remove thousands of federal rules and regulations from the Code of Federal Regulations (CFR). That prompts the question, "if Congress is not the one making these complicated rules, how do we as a public hold these un-elected bureaucrats accountable and/or exercise our first amendment rights to petition the government?"

Lobbying as a Constitutionally Protected Activity

In United Mine Workers of America, District 12 v. Illinois Bar Association (1967), the Supreme Court of the United States held that "no restraints by legislation or otherwise upon First Amendment rights can be sustained merely because they were imposed for the purpose of dealing with some evil within the State's competence." The First Amendment right the Court was referring to in this case was the right to "petition the government for a redress of grievances". Mine Workers thus codified in our jurisprudence that no law, either federal or state, can prevent any individual (or collection of individuals) from exercising their right to lobby the government.

Anytime you talk with a lawmaker about a piece of legislation, sign a petition to save the rain forest, or send an email from AAOE's Legislative Action Center, you are engaging in lobbying activity. Lobbying is essential to who we are as Americans, so essential that many times we don't even know that we are doing it. 

The Rulemaking Process

It's not just the legislative branch that needs lobbying. The American government of School House Rock is hardly the government of reality and policy comes from all three branches of government, not just Congress. Congress may be a reflection of the will of the people and the "first branch" but it's hardly the only policy game in town. As policy demands from government have grown (i.e. regulating the food we eat, the water we drink, and the quality of the air we breathe), the need for more detailed and precise policies has also grown, far outpacing the institutional abilities of Congress. Thus, rulemaking was born.

The federal rulemaking process starts with a legislative mandate. All rules have their origin in some legislative grant of authority from Congress; without the legislative grant, a rule may not be created. Following passage of the grant of authority, the agency given the grant drafts a proposed rule in which the agency outlines its rulemaking intentions. That proposed rule is then put through a notice and comment period.

It is during the notice and comment period that ordinary Americans have the opportunity to provide feedback on the proposed rule and influence the agency requesting comment. This is often the most intimidating part for people. Rules are typically long and very technical (I personally dread the release of the varying fee schedules each year because they are so technical), but this is where AAOE can help.

Each year, AAOE sends out articles about the top proposals in each of the four major fee schedules, the Inpatient Prospective Payment System, the Outpatient Prospective Payment System, the Ambulatory Surgical Center Payment System, and the Physician Fee Schedule. These articles can be used to understand what has been proposed and how it might affect your practice; this understanding can then be used to inform your comments on the rule.

Comments do not have to be long and they do not have to address all of the objectionable content in the proposed rule. Pick one or two of the issues you find most objectionable (or one or two of the issues you find most helpful) and comment on those. Note: Comments submitted to a federal agency become a part of the public record and are therefore subject to open records requests. As you are drafting your comments, make sure that they are professional in nature and do not include anything that would embarrass you, your practice, or your peers in the orthopaedic community.

The agency will then collect all of the responses and read through each comment. Comments will be addressed in the final rule (although commenter names are not included in the rule). The agency has wide discretion in whether it alters the proposal for final publication based on public comment. One of the best ways to ensure that your comments are adopted in the final rule is to provide ample evidence to support your claims. For example, if you wanted to comment on the valuation of a code, you should provide receipts that show the true cost of providing the service the code represents.

Does AAOE Submit Comments?

Yes. AAOE submits comments yearly on the Physician Fee Schedule, Outpatient Prospective Payment System, and ASC Payment System. However, just because AAOE submits comments on these rules does not mean that you should not submit your own. AAOE strives to provide comments on every issue that could affect our members but we may sometimes miss something. Additionally, the greater the number of comments submitted by like-minded organizations, the higher the likelihood those comments affect the outcome of the final rule.

With the advent of the internet, policymaker influence has never been easier and you may be asking, "will AAOE send out action alerts for regulations the same way it does for legislation?" The answer to this question is, unfortunately, no. Federal agencies can restrict the way in which they receive comments from the public. As of now, comments are posted to for review by the agency in a rule docket. If organizations were to submit hundreds, if not thousands, of form letters into these dockets, the agencies are likely to make it much more difficult for the public to comment on these proposed rules. A great example of this was the recent proposed rule period for the FCC's proposal to roll back Net Neutrality protections put in place under the Obama administration. Of the 22 million public comments filed, 2.8 million were the same form letter. Of all of the comments, 94% "were submitted multiple times, and in some cases those comments were submitted many hundreds of thousands of times," according to NPR. 

Obviously, the FCC example is an extreme example of how the comment process can go off the rails. Although it is rare for CMS to propose a rule that generates that kind of interest, the point of that example is to illustrate the tenuous balance between regulatory commenting and modern methods of influence. If you are eager to provide comments on a proposed rule, AAOE staff is always happy to help. Whether it's reviewing comments and offering suggestions or explaining provisions of the proposed rule, we're here to help you be the best grassroots advocate for your practice and AAOE that you can be.

Getting Started

  1. Read the AAOE eNews. Updates about proposed rules will be sent to AAOE membership via the weekly eNews. All AAOE members are subscribed. You can view the archives here.
  2. Bookmark in your internet browser of choice.
  3. Check out AAOE's Tips for Writing an Effective Comment Letter for guidelines and best practices on making the most of your comments.

Once a Rule is Proposed

  1. Read AAOE's weekly eNews each week to see if any proposals of note have been introduced.
  2. Read the article about the proposed rule in the eNews.
  3. Formulate your comment plan.
    • What do you want CMS to know about its proposals?
    • What proposals are going to do the most harm/good for your practice?
    • Who is impacted most by the proposal?
    • Collect any evidence you need to prove your point
  4. Click on the link in the article to the rule docket on
  5. Click on the "Comment Now" button in the docket.
  6. Enter your comment in the text box provided or upload a PDF of your comments.
  7. Enter your contact information.
  8. If you are submitting on behalf of your practice, check the "I am submitting on behalf of a third party" box and enter the practice name.
  9. Click "Continue".
  10. Preview your submission, then click "Continue".
  11. Enter the email address you want any document notifications sent to.

Final Rule

  1. When you see in the AAOE eNews that a final rule has been published, click the link to the rule text in the article.
  2. Search the PDF for the most likely topic of your comments (i.e. if you commented on reimbursement for injections, search for injections).
  3. Scan through the search results to see if your comments had any effect on the final rule (this will require some reading).

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