Worrying about regulations, Part II
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, § 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.
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