The 2022 Proposed Payment Notice, Part 1: Exchange Provisions

In a Thanksgiving eve surprise on November 25, 2020, the Centers for Medicare and Medicaid Services (CMS) released a 395-page proposed 2022 Notice of Benefit and Payment Parameters rule[1]. The proposed rule was accompanied by a fact sheet[2] and a press release[3]. The “payment notice” is issued on an annual basis to adopt major changes for the next plan year in areas such as the exchanges and the risk adjustment program. Other materials, such as the draft letter to insurers in the federal exchange, key dates, and the actuarial value (AV) calculator are presumably coming but, unlike prior years, were not released alongside the proposed rule.

CMS is accepting comments for 30 days after the rule has been filed for public inspection[4]. Assuming that date is November 27, comments will presumably be due on December 28, 2020[5]. It strikes me as unusual to tie the comment deadline to the filing date since most comment periods are tied to the date of actual publication in the Federal Register. The comment period typically begins after publication in case the rule changes between filing date and actual publication (as CMS acknowledges in a disclaimer).

If the comment deadline is in fact linked to the date of publication in the Federal Register, commenters will have slightly more time to weigh in, and CMS will have slightly less time to review and respond to comments. While only a slight difference, CMS is presumably trying to finalize the rule before the end of the Trump administration’s term. With Inauguration Day on January 20, 2021, mere days can be the difference between the Trump administration finalizing the rule—or an incoming Biden administration opting to significantly revise the rule. Even if these changes are finalized, a Biden administration could delay the rule’s effective date and then issue subsequent rules to roll back the changes it does not think are justified. But doing so could take time and likely another round of notice and comment. (For context, the outgoing Obama administration finalized the 2018 payment notice in December 2016; the Trump administration almost immediately made changes to some of those and other policies in its market stabilization rule[6] in early 2017.)

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