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Posted at 12:14 PM ET, 01/13/2011

Worrying about regulations, Part II

By Ezra Klein

A reader who works in the federal government writes in with an example of a regulation that's in the Code of Federal Regulations but shouldn't be:

I have one extreme example of regulatory rigidity and the problems it may cause.

The regulation at 42 CFR 447.206 [you can look it up here if you're interested -- Ezra] has ZERO legal effect because of a court case (Alameda County Med. Ctr. V. Leavitt, 559 F. Supp 2d. 1, (D.D.C 2008)) that invalidated the Secretary's actions in promulgating the rule. 42 CFR 447.206 was originally published in direct contradiction to a Congressional moratorium specific to the very proposed regulation. Congress issued the one year moratorium in an obscure appropriations act Public Law No. 110-28, ยง 7002(a).

CMS knew that Congress had passed this law and that the bill was headed to President's desk for signature. Despite having this knowledge, CMS rushed to the Office Federal Register to publish the final rule prior to the President signing the appropriations bill which contained the moratorium. So technically speaking, the rule was "finalized" because CMS published it before the President could make the moratorium law.

Well this really upset industry and they sued. See the case I cited above. The DC district court judge ruled in favor of industry and told CMS that the rule was invalid and in direct contradiction to Congressional intent. Therefore, the final regulation is invalid and it has no legal effect.

But when you look up 42 CFR 447.206, the regulation STILL stands, despite the fact that both other branches of our government have declared it invalid. CMS has not removed the final rule from the CFR because do so would take lots of effort. You have to publish notice in the federal register, get internal departmental approval, get OMB approval, so on and so forth. CMS has let an invalid rule continue to be published in the CFR for the better part of two years in large part because it is just too hard to amend the CFR and remove the rule.

Readers should feel free to e-mail me with others.

By Ezra Klein  | January 13, 2011; 12:14 PM ET
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Well, OK, so what? Is there any suggestion that the states and medical providers who might be affected by this rule don't understand that it's not in effect? Is there any suggestion that the government is continuing to enforce it, or try to?

Posted by: gcedwards10 | January 13, 2011 2:01 PM | Report abuse

--*A reader who works in the federal government writes in with an example of a regulation that's in the Code of Federal Regulations but shouldn't be*--

Here's others: USDA, HHS, TSA, FDA, FCC, FTC, DOE, etc.

Posted by: msoja | January 13, 2011 2:15 PM | Report abuse

For every regulation, statute, and case it's not enough just to read it. You have to take the extra step of making sure that it's still good law. And for lawyer's at least, it's ludicrously simple to do. I looked up the regulation on Westlaw (a competitor to Lexis in legal research) and was immediately linked to the case referenced above. This doesn't strike me as a big deal at all.

Posted by: lucasblower | January 13, 2011 2:26 PM | Report abuse

Can't *wait* until the federal government is in full charge of my healthcare.

Posted by: WrongfulDeath | January 13, 2011 2:28 PM | Report abuse

Your reader's example is out of date. Granted, CMS took its sweet time, but that provision was removed from the regulations on November 30, 2010.

Posted by: ostap666 | January 13, 2011 2:34 PM | Report abuse

Ezra, you know better than this so why do you publish this junk. One district court ruling does not make a regulation universally "invalid". I know that you know better because you've recently written about the attempts to declare health care reform(HCR) unconstitutional. The Virginia district court decision didn't make HCR any more "invalid" than the cited case makes this section of the CFR invalid.

Posted by: chris7777 | January 13, 2011 2:39 PM | Report abuse

The issue here is not the regulation itself, but the Administrative Procedures Act, which was passed by a conservative Congress after the New Deal for the very purpose of making it hard to regulate.

Posted by: wondering27 | January 13, 2011 4:23 PM | Report abuse

chris: the DC circuit is a bit different, and a d.dc decision would likely have more weight considering it's an administrative issue IMO

regardless, im pretty sure the issue has been cleaned up:
(Through the regulation issued on November 30, 2010, HHS removed all provisions of the Final Rule from the Code of Federal Regulations)

Posted by: stantheman21 | January 13, 2011 6:40 PM | Report abuse

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