University of Chicago Law Review

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The Medicare Act is not subject to the informal rulemaking requirements of the Administrative Procedure Act (APA). Instead, it has its own provision that mandates notice and comment for proposed regulations. Courts have come to different conclusions regarding the scope of the Medicare Act’s notice-and-comment requirement. This Comment interprets this Medicare Act provision to determine whether its requirement is equivalent in scope to that of the APA. This Comment presents arguments from text and legislative history to demonstrate that, as in the APA, interpretive rules are exempt from notice and comment. Finally, this Comment explains why this outcome is desirable as a policy matter: there is no reason to think that the ability to quickly promulgate interpretive rules is any less beneficial in the context of Medicare than it is in those areas of administrative law governed by the APA.

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