On October 23, 2013, CMS issued a memorandum to providers announcing that the publication of several final rules would be delayed, possibly until the end of November.  The memorandum noted that the rules, though published after the statutory deadline of November 1, 2013 for an effective date of January 1, 2014, would still be “generally” effective on January 1, 2014.  The four rules due for publication on November 1 included:

• Revisions to Payment Policies under the Physician Fee Schedule, with Other Revisions to Part B for calendar year 2014
• Home Health Prospective Payment System final rule for calendar year 2014
• Changes to the Hospital Outpatient Prospective Payment System and Ambulatory Surgical Center Payment System for calendar year 2014
• Medicare Program; End-Stage Renal Disease Prospective Payment System, Quality Incentive Program, and Durable Medical Equipment, Prosthetics, Orthotics, and Supplies

While publication of a final rule at the end of November with an effective date of January 1 would violate the statutorily required 60-day period between the date of publication and the effective date, the Administrative Procedure Act contains an exception for good cause, if an explanation of such good cause is published with the final rule.  It is likely that the recent government shutdown will be viewed as “good cause” for delaying publication while maintaining the original January 1, 2014 effective date.  Following the 1995 government shutdown, CMS published the Physician Fee Schedule on December 8, 1995 and maintained the effective date of January 1, 1996, though it extended comments for certain provisions in the final rule until February 6, 1996.  Providers should be prepared to review these rules immediately upon publication in order to inform CMS of any difficulties associated with their implementation by January 1, 2014.   

Reporter, Paige Fillingame, Houston, +1 713 615 7632, pfillingame@kslaw.com.