A rush to complete regulations may or may not be on, but the publication queue this week results in a long post and raises questions about whether a push is really under the radar.
The Department of Health and Human Services (HHS) continues to dominate the field with Medicare, Medicaid, HITECH, and unique plan identifier rules impacting billions of dollars.
The Environmental Protection Agency (EPA) and Department of Transportation (DOT) released their automobile and light duty truck 2017 and later model year corporate average fuel economy (CAFÉ) final rule. EPA released its response to the D.C. Circuit’s Mack Trucks decision and proposed performance standards for electric generators.
And not to be outdone the Federal Deposit Insurance Corporation (FDIC), Federal Reserve System (FRS), and the Department of the Treasury, Comptroller of the Currency (COC) joined forces to publish one final and three proposed rules. The FRS, OCS National Credit Union Administration (NCUA), Consumer Finance Protection Bureau (CFPB), and Federal Housing Finance Agency (FHFA) released a high-risk appraisal proposed rule.
The courts were quite in the week before Labor Day and Congress remains away.
Health: As noted last Monday, HHS/CMS will publish Medicare and Medicaid Programs; Electronic Health Record Incentive Program—Stage 2 in the Federal Register tomorrow. HHS also will publish a small Health Information Technology: Standards, Implementation Specifications, and Certification Criteria for Electronic Health Record Technology, 2014 Edition; Revisions to the Permanent Certification Program for Health Information Technology final rule in tomorrow’s Federal Register.
HHS published a horse-choking 494 printed pages / 1989 typescript pages Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System and Fiscal Year 2013 Rates; Hospitals’ Resident Caps for Graduate Medical Education Payment Purposes; Quality Reporting Requirements for Specific Providers and for Ambulatory Surgical Centers on August 31, 2012 (originally filed August 1, 2012).
The Office of Management and Budget (OMB) completed review of HHS economically significant final rule Administrative Simplification: Adoption of a Standard for a Unique Health Plan Identifier[aka HPID]; Addition to the National Provider Identifier Requirements; and a Change to the Compliance Date for the International Classification of Diseases, 10t Edition (ICD-10-CM and ICD-10-PCS) Medical Data Code Sets scheduled for publication tomorrow, September 5, 2012, and effective November 5, 2012. Health plans with the exception of small health plans must obtain an HPID by November 5, 2014; small health plans must obtain a HPID by November 5, 2015, and other compliance dates. HHS expects insurers to make up their portion of the $650 million to $1.3 billion costs through savings. Administrative simplification has not yet reached the rule.
OMB completed review also of a CMS interim final rule (consistent with change) Pre-Existing Condition Insurance Plan; High Risk Pool in a single day on August 28, 2012. HHS has previously described the 2010 version as an economically significant rule, but OMB does not describe the current version as economically significant. The Spring 2011 Unified Agenda provided an abstract, but there has been silence since then. An interim final rule raises some curious questions to be answered only when it is released.
CAFÉ Standards: EPA and DOT released a 1,230 page single-spaced version and a 1,994 page double spaced version of the 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards joint final rule reflecting the hopes of a wide range of interests from industry to environmentalists. The time-frame, however, is so far out that its predictability is speculative.
Although the agencies estimate that technologies used to meet the standards will add, on average, about $1,800 to the cost of a new light duty vehicle in MY 2025, consumers who drive their MY 2025 vehicle for its entire lifetime will save, on average, $5,700 to $7,400 (7 and 3 percent discount rates, respectively) in fuel, for a net lifetime savings of $3,400 to $5,000. This estimate assumes gasoline prices of $3.87 per gallon in 2025 with small increases most years throughout the vehicle’s lifetime. Multiple speculations can be found in this conclusion (WAG?).
Industry, EPA notes, expects the cost to be $3,000 per vehicle with an impact on the number of new cars that can be bought; people own their cars for the “lifetime” of the vehicle or that remaining savings are recouped in value at resale. Any projection of benefits and costs 13 years out (net +$326 billion to $451 billion) has any basis in reality.
EPA v. Mack Trucks: OMB also completed review and EPA released, on August 30, 2012, a version (not very clean) of a final Nonconformance Penalties for On-Highway Heavy-Duty Diesel Engines rule in response to the decision of the United States Court of Appeals for the District of Columbia Circuit in Mack Trucks v. EPA. Mack Trucks found that EPA lacked “good cause” under the Administrative Procedure Act (APA) to adopt an interim final rule in January 2012. Although EPA acknowledges the court’s decision and cautionary dicta, it says little about its failure. Further litigation may now reach the merits.
Electric Generators: EPA proposed changes to new source performance standards in a new Standards of Performance for Stationary Gas Turbines; Standards of Performance for Stationary Combustion Turbines. EPA is responding to prior petitions for reconsideration by the Utility Air Regulatory Group.
Capital Risk: The Federal Deposit Insurance Corporation (FDIC), Federal Reserve System (FRS), and the Department of the Treasury, Comptroller of the Currency (COC) published three proposed rules and a final rule on August 30, 2012, none of which received interagency review and include only statutory economic analyses:
- Risk-Based Capital Guidelines: Market Risk (final);
- Regulatory Capital Rules: Regulatory Capital, Implementation of Basel III, Minimum Regulatory Capital Ratios, Capital Adequacy, Transition Provisions, and Prompt Corrective Action (proposed);
- Regulatory Capital Rules: Standardized Approach for Risk-Weighted Assets; Market Discipline and Disclosure Requirements (proposed); and
- Regulatory Capital Rules: Advanced Approaches Risk-Based Capital Rule; Market Risk Capital Rule (proposed).
The first proposed rule refers back to the final rule; the second and third proposed rules have a structured relationship. The effects and costs of one may affect all, as is typical of the economy.
Mortgage Risk: The FRS, COC, National Credit Union Administration (NCUA), the Consumer Finance Protection Bureau (CFPB), and the Federal Housing Finance Agency (FHFA), together placed on public inspection an Appraisals for Higher-Risk Mortgage Loans proposed rule; the Federal Register will publish it tomorrow. This slightly different mix of agencies provide a plethora of means for filing public comments – some of which overlap Regulations.gov, but some of the agencies do not use Regulations.gov, thereby complicating their own lives and ours, to say nothing of their vague and incomplete instructions.
Many of these rules are very large and reflect some agency bad habits, a point that will be taken up in a subsequent post.
Happy Labor Day.