Rachel Carey, counsel at legal firm Whiteford, Taylor & Preston LLP, speaks at the ASC News Investment & Operations conference.Ambulatory surgery center (ASC) stakeholders are raising concerns after the U.S. Department of Health and Human Services (HHS) announced its intention to rescind the long-standing policy requiring public participation in certain rulemaking processes, particularly those involving Medicare, Medicaid and reimbursement.
The move could significantly limit opportunities for ASC operators and others to comment on future regulatory changes. And it might lead to legal challenges, too.
“I believe that thoughtful collaboration between policymakers and those delivering care leads to the best outcomes for patients and the system as a whole,” Danilo D’Aprile, president-elect of the Arizona Ambulatory Surgery Center Association, told Ambulatory Surgery Center News.
D’Aprile is also VP of business development for Merritt Healthcare.
The public comment process has long served as a constructive platform for providers, patients, and stakeholders to share insights that help shape practical, effective health care policy, he added.
“Our shared goal is to ensure patients have access to the best possible care, and the ASC community should and could work together with HHS to support policies that make that possible,” D’Aprile said.
Danilo D’Aprile, interim president of the Arizona Ambulatory Surgery Center Association and Merritt Healthcare executive, speaks at the ASC News Investment & Operations conference.
The Ambulatory Surgery Center Association (ASCA) declined to comment on the development, but several other health care groups from across the sector have slammed the HHS proposal.
LeadingAge CEO Katie Smith Sloan, for instance, said the public comment period is vital for creating and revising effective, efficient and practical policy.
“The possibility that HHS under the Trump White House will eliminate or significantly scale back public comment on policies impacting payment, regulations, safety, operations, and other critical areas is truly troubling, a move we can only hope will not have the negative impact that we fear it might,” she said. “We will closely monitor its implementation.”
LeadingAge is an industry trade group that represents more than 5,400 nonprofit aging services providers and other mission-driven organizations serving older adults.
The Association for Professionals in Infection Control and Epidemiology (APIC) likewise questioned the HHS move.
“The ability for health care professionals, patient advocates and the general public to provide input on federal regulations is a cornerstone of responsible policymaking,” APIC President, Dr. Carol McLay said in a statement. “Public participation ensures that regulations are shaped by those directly affected by them, incorporating real-world insights from the front lines of health care to drive better outcomes and improve patient care. Curtailing this process undermines trust and risks creating policies that fail to reflect the realities of patient care.”
APIC, with more than 15,000 members, is focused on the advancing the science and practice of infection prevention and control.
Rachel Carey, counsel at legal firm Whiteford, Taylor & Preston LLP, told ASC News that the Trump administration appears eager to expedite policy changes, but may encounter legal challenges.
“[The Trump administration] sees it being able to implement change – probably quicker that way – without as many checks, … but who knows if that’s going to be positive or negative at this point,” she said.
Still, even with the elimination of a public comment, there will be other ways to push back.
For example, a recent attempt to abruptly cut National Institutes of Health (NIH) funding was already blocked by the courts, illustrating how swiftly enacted rules may end up in limbo due to judicial intervention.
“If someone wants to challenge it, they can bring it up in the judicial system,” she said.
This is typically the time of year when updated rates and guidelines are released by entities such as HHS and the U.S. Centers for Medicare & Medicaid Services (CMS), yet there has been unusual silence, Carey added.
This lack of announcements could be tied to the administration’s approach of rushing policy changes, which may in turn prompt more temporary restraining orders and injunctions.
“I think you’ll see more temporary restraining orders on some of these rules that people don’t agree with, or injunctions so they don’t act,” she said.
