Messy but Fair: The ACA's Hospital Value-Based Purchasing Program and the Notice-and-Comment Process

The Centers for Medicare and Medicaid Services (CMS) promulgated a new Medicare program called the Value-Based Purchasing Program (VBPP) as part of the 2010 Affordable Care Act (ACA). Like many other regulatory agencies, CMS used the Notice-and-Comment process to issue proposed rules, solicit public comments, and then publish final rules. Conventional literature suggests that CMS should disproportionately favor business interests during the Notice-and-Comment process, mainly due to the business interests' greater resources and capacity to draft well-reasoned comments. However, this article argues against this presumption and contends instead that CMS listens equally well to both business interest comments and private citizen comments during the formation of the VBPP. With regard to the VBPP and the ACA, CMS appears to be resisting disproportionate sway by business interests and is instead privileging the ACA's goal of improving healthcare quality.