The Centers for Medicare and Medicaid Services (CMS) recently announced the withdrawal of three proposed rules that, in one case, had been pending since 2014. The first proposed rule that CMS decided to scrap was proposed in December of 2014 that would have ensured same-sex spouses were recognized and afforded equal rights as opposite-sex couples in Medicare and Medicaid participating facilities. The proposed rule was initiated to ensure that the Medicare conditions of participation and conditions of coverage were consistent with the U.S. Supreme Court decision in United States v. Windsor, which struck down a section of the Defense of Marriage Act that restricted the definition of marriage to between one man and one woman. Since publication of the proposed rule, CMS determined that the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, which required states to license marriages between same-sex couples, addressed the concerns that CMS was attempting to correct via the proposed rule, and the proposed rule was no longer necessary.

The second withdrawn proposed rule would have introduced a new Medicare Part B drug payment model to test whether alternative payment structures would reduce Medicare expenditures. Under the proposed rule, CMS would have reduced the add-on to the Part B drug average sales price from six percent to 2.5 percent plus a flat fee. It would have also implemented a number of value-based purchasing tools that are used by commercial health plans, hospitals and others. In reviewing the comments received from the public, CMS determined that the program would be too complex and burdensome to administer.

Lastly, CMS withdrew a rule proposed earlier this year that would have outlined the qualifications for practitioners and suppliers to furnish and fabricate prosthetics and custom orthotics. The proposed rule would have also established accreditation requirements and requirements that an organization must meet to accredit suppliers to bill for such prosthetics and custom orthotics. CMS reasoned that the cost and time burdens would create hardships for providers and suppliers, particularly small businesses, and consequently, withdrew its proposal.

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