To What Extent Can CMS Informally Issue Interpretive Rules?

By Robert Wanerman (October 17, 2018, 12:15 PM EDT) -- On Sept. 28, 2018, the U.S. Supreme Court granted certiorari to review the decision of the D.C. Circuit in Allina Health Services v. Azar, which has the potential to resolve the issue of whether or not the Medicare Act requires notice-and-comment rule-making in more situations than are required by the Administrative Procedure Act.[1] The D.C. Circuit held that 42 U.S.C. § 1395hh requires notice-and comment rule-making more often than the APA, and that the secretary of the U.S. Department of Health and Human Services failed to comply with that statute. Allina will deal with the extent to which the Centers for Medicare & Medicaid Services is entitled to issue interpretive rules on an informal basis, which has become a common practice....

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