Other Notable Actions
Opening the Federal Regulatory Process to More Voices
The Office of Information and Regulatory Affairs (OIRA) will hold an engagement session on November 17 from 12pm to 1pm ET to hear directly from the public about ways to improve participation in the regulatory process. The session will inform development of the United States’ Open Government National Action Plan—a set of public commitments the federal government is drafting with input from civil society to support a more equitable, transparent, and accountable government. RSVP for the November 17 engagement session.
Addressing Junk Fees and Deceptive Endorsements
The Federal Trade Commission issued a pair of advance notices of proposed rulemaking to address deceptive or unfair “junk” fees charged by businesses or organizations, and the use of deceptive reviews and endorsements. The junk fees, including hidden fees, are described as having little or no added value to the consumer and would reasonably be assumed to be included in the overall advertised price of a good or service. These fee practices can be found throughout the economy but appear to be particularly widespread in markets for travel such as hotels, room-sharing, car rentals, and cruises. Similarly, the Commission proposes to address deceptive marketing practices that make it difficult for shoppers to distinguish real product reviews and endorsements from fake ones. Deceptive reviews include those from people who do not exist, did not actually use or test the product, or who are misrepresenting their experience with it. Comments on both proposals are due January 9, 2023.
Protecting News Media from Compelled Disclosure of Sources
The Department of Justice (DOJ) issued a final rule amending its policies on the use of compulsory legal process, including subpoenas, search warrants, and court orders for the purpose of obtaining information or records from members of the news media. The rule also amends DOJ’s regulations regarding questioning, arresting, or charging members of the news media. The changes reflect the importance of a free press and the Department’s commitment not to unreasonably impair newsgathering. Effective November 3.
Phasedown of Hydrofluorocarbons
The Environmental Protection Agency (EPA) proposed a rule establishing a methodology for allocating hydrofluorocarbon (HFC) production and consumption allowances for the calendar years of 2024 through 2028. EPA is also proposing to amend the consumption baseline to reflect updated data and lessons learned from the HFC phasedown program thus far. The American Innovation and Manufacturing Act of 2020 authorized EPA to address HFCs through phasing down production and consumption, facilitating transition to next-generation technologies, and minimizing releases of HFCs. Comments due December 19.
Election Bars While Unfair Labor Charges Pending
The National Labor Relations Board (NLRB) issued an advance notice of proposed rulemaking to rescind and replace its rules and regulations governing the filing and processing of petitions for an NLRB-conducted representation election while unfair labor practice charges are pending. The rule also proposes to rescind an amendment specific to petitions in the construction industry which governs proof of majority support. The changes aim to better protect employees’ right to choose union representation and collective bargaining. Comments due January 3, 2023.
Medicare Payment Rates for Home Health and Renal Disease Programs
The Centers for Medicare and Medicaid Services (CMS) issued a final rule with routine updates to the Medicare home health payment rates for calendar year 2023 and finalizes the reassignment of certain diagnosis codes under the Patient Driven Groupings Model.
Separately, CMS issued a final rule updating the End-Stage Renal Disease (ESRD) Prospective Payment System for calendar year 2023 and the payment rate for renal dialysis services furnished by an ESRD facility to individuals with acute kidney injury.
A third final rule from CMS implements provisions of the Consolidated Appropriations Act, 2021, and makes revisions to Medicare enrollment and eligibility rules by deleting references to specific Medicare forms from the text of existing regulations to provide greater administrative flexibility. The rule also updates regulations affecting a state’s payment of Medicare Part A and B premiums for beneficiaries enrolled in the Medicare Savings Programs.
Most of the changes in the three CMS final rules become effective January 1, 2023.