Senators Begin to Investigate CMS' Possible Use of "Guidance" as Law

Two U.S. Senators, chairmen of two powerful committees, have demanded almost eight years of "guidance" documents from HHS Secretary Sylvia Burwell, to be delivered to them by May 29. The senators clearly expressed concern that the agency was issuing "guidance" and treating it as law, in an effort to avoid the notice-and-comment rule-making process, as required for legislative regulations. While executive-branch agencies are permitted to freely issue and modify "interpretive rules" of legislative regulations, which according to SCOTUS are beyond judicial review, Congress evidently does have the power to review those rules, and now appears to want to do just that, especially all the "sub-regulatory guidance" that has been issued under HHS since July 24, 2007.

Find a copy of the Senators' letter and my layman's explanation of how SCOTUS is and is not involved in my latest article. Hopefully, there will be more information forthcoming from the Senate in the coming weeks. We especially wonder about why the Senators chose such a specific date for their starting point.

If any of you legal-types can think of a case where CMS has been treating sub-regulatory guidance as law, I'd love to discuss it here... Please post it!