Statute: No Retroactive Medicare Rules SSA 1871

 I believe there's a remark in the Medicare statute (Social Security Act) that Medicare (or CMS) can't make retroactive rules and policies and regulations.

[This is in addition to a remark in the Constitution that federal laws [and state laws] can't be ex post factor.]

Chat GPT

SSA 1871

Yes, the Medicare statute includes provisions that generally prohibit the Centers for Medicare & Medicaid Services (CMS) from applying substantive changes to regulations, manual instructions, interpretative rules, statements of policy, or guidelines retroactively. 

Specifically, Section 1871(e)(1)(A) of the Social Security Act states:

"A substantive change in regulations, manual instructions, interpretative rules, statements of policy, or guidelines of general applicability under this subchapter shall not be applied (by extrapolation or otherwise) retroactively to items and services furnished before the effective date of the change, unless the Secretary determines that— (i) such retroactive application is necessary to comply with statutory requirements; or (ii) failure to apply the change retroactively would be contrary to the public interest."

This means that CMS is generally prohibited from applying substantive changes retroactively unless one of the two specified exceptions is met:

1. Compliance with Statutory Requirements: If retroactive application is necessary to comply with statutory mandates.

2. Public Interest: If not applying the change retroactively would be contrary to the public interest.

These exceptions are intended to be narrowly construed to prevent undue hardship on providers and beneficiaries due to unexpected retroactive policy changes.

Mondaq

The prohibition against retroactive rulemaking in the Medicare context was notably addressed in the Supreme Court case Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988). In this case, the Court held that agencies do not have the authority to promulgate retroactive rules unless Congress has expressly granted such power. The Court emphasized that statutory grants of rulemaking authority should not be interpreted to authorize retroactive rulemaking unless that power is conveyed explicitly.

Wikipedia

Therefore, while the Medicare statute generally prohibits retroactive rulemaking, CMS may apply changes retroactively in specific circumstances where it is necessary to comply with statutory requirements or to serve the public interest, as determined by the Secretary.

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Does something in the Constitution say that laws can't be retroactive? I think in old timey language.

ChatGPT said:

Yes, the Constitution addresses retroactive laws in what might seem like "old-timey language." Specifically, it prohibits two types of retroactive laws:

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Ex Post Facto Laws

• Article I, Section 9, Clause 3 (for federal laws):
  "No Bill of Attainder or ex post facto Law shall be passed."

• Article I, Section 10, Clause 1 (for state laws):
  "No State shall pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts..."

Meaning:
An ex post facto law retroactively makes an action illegal that was legal when it was committed, or increases the penalties for a crime after it was committed. This prohibition ensures fairness and prevents governments from punishing people for actions that were not against the law at the time.

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Bills of Attainder

A related clause in the same sections prohibits Bills of Attainder. These are laws that single out individuals or groups for punishment without a trial, which can also have retroactive implications.

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Key Example of the Language's Intent:

The Founders were deeply influenced by their distrust of arbitrary power, particularly abuses seen in British law. Retroactive laws were seen as tools of tyranny and injustice. By prohibiting ex post facto laws, the Constitution establishes a baseline of fairness and predictability in the legal system.

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Note:
While these provisions prevent retroactive criminal laws, retroactive civil laws (e.g., changes to tax policy or contract rules) are not necessarily forbidden. Courts often scrutinize such laws to ensure they do not violate other constitutional principles, such as due process.