Reversing course on end of life directives: Procedural justice

You may recall the following history (Editor: History?? It was only two weeks ago! Me: We're on Internet time, baby, not government time.)

1. An early version of the Affordable Care Act (ACA) included a provision that would allow Medicare to pay physicians for counseling patients about planning for medical care at the end of life.
2. Following criticism about "death panels", the end of life payment provision was dropped from the ACA.
3. The provision to enable physicians to bill Medicare for end of life counseling was enacted via regulation.
4. Talk about death panels resumed, and the administration rescinded the regulation allowing payment for end of life counseling. Doctors can still talk about end of life care, but the doctors can't bill Medicare for their time.

Jim Hufford has a thoughtful post about the role that procedural fairness should have had played in the decision to rescind the regulation. I say "should have had" because it may be that the administration just looked at the politics and caved. The question Hufford discusses is whether that was the right choice, regardless of the administration's intentions.

So, Hufford points out that the law requires that regulations must be published with adequate notice for comment before they take effect; otherwise the rulemaking procedure was defective. But what is "adequate notice"? There is no fixed criterion, but the courts think that there should be more time for discussion when the rule is a significant departure from the existing rules. The controversy is, I think, sufficient evidence that in this case the departure was significant. If so, it's arguable that the rule was changed with insufficient notice, and it was right to reverse course.

Hufford explains why this matters. We should

[make] good on our commitments to procedural fairness and openness, commitments which at times must trump the pursuit of substantive policy objectives. ...[Although] it is distressing to see death-panel nonsense accorded any respect... the procedural issues raise special concerns. The whole administrative apparatus of government is organized around more or less vague, aspirational objectives. Administrative procedure is also vague and aspirational, but it is the best means we have devised to apply neutral, ex ante constraints on the bureaucracy. It represents our best efforts at ensuring that public policy is informed by evidence and expertise and is responsive to public needs and interests.

I now think that reversing course on this rule was the right thing to do, for the reasons given by Hufford. And the next right thing to do would be to reinstate the rule, with adequate notice.