It’s a political firestorm.
Deborah Samenow 22, has more than a decade of federal government experience reviewing and adjudicating Medicare claims for coverage and reimbursement, and Wenxi Li, is a member of the DLA Piper’s Healthcare Industry team in the Washington, DC office, and Alexandra Lafree, graduate of the University of Maryland Francis King Carey School of Law, 7-26-2022, DLA Piper, "Fading into the sunset The last of the Sunset Rule," https://www.dlapiper.com/en/insights/publications/2022/07/fading-into-the-sunset-the-last-of-the-sunset-rule //AS
This is likely not the last time we will see HHS introduce a version of the Sunset Rule. The repeal of the Sunset Rule is one more example of the divergence between the Trump and Biden Administrations, reflecting the significant impact presidential administrations and priorities can have on regulated industries. As HHS indicated when it published the Sunset Rule in 2021, what the Sunset Rule is proposing is not new; there are already executive orders, state laws, and other policies in place that allow the retrospective review of regulations. Retrospective review of laws and agency policies can provide various economic, social, and practical benefits. Through retrospective review, outdated laws and policies may be amended, improved, or eliminated, which may lead to cost savings and reductions in regulatory burdens. HHS under another administration may bring another retrospective review rule back to support its legislative priorities.
What is unique about this Sunset Rule is how quickly HHS completed the rulemaking; the process, from proposed to final rule, took less than three months. As noted in the Santa Clara lawsuit, the Sunset Rule “require[s] a resource-intensive and time-consuming effort on par with full notice-and-comment rulemaking, but at a pace 20 times faster than the Department has ever conducted retrospective review in the past – all without any guarantee that the Department will conduct such review.”
The speed of this rulemaking also shows the importance of stakeholder contribution during the notice and comment period: the ultimate repeal of the Sunset Rule was substantially driven by the overwhelming pushback to the rule. Stakeholder input is key to ensuring that an agency consider all advantages and pitfalls prior to being finalized.