Effective Monday, March 3, the Department of Health and Human Services’ (HHS) Immediate Office of the Secretary has rescinded its policy on Public Participation in Rule Making and realigning HHS’ rule-making procedures with the Administrative Procedure Act.
HHS announced its plans to restrict public comment on certain agency activities in the Federal Register on Monday. The move rescinds Public Participation in Rule Making, known as the Richardson Waiver, a policy in place since 1971. It called for public comment for HHS rules for public property, loans, grants, benefits, or contracts unless there was “good cause” that notice and public procedures were “impracticable, unnecessary, or contrary to the public interest.”
In the notice, HHS Secretary Robert F. Kennedy, Jr. said HHS agencies and offices have discretion to apply notice and comment procedures for these matters, but are not required to do so, except as otherwise required by law. He also said the good cause exception should be used in “appropriate circumstances” and “sparingly.”
Kennedy said the “extra-statutory obligations” of the Richardson Waiver are costly and impede the ability for HHS to respond quickly and efficiently to legal and policy mandates.
HHS will continue to follow public notice requirements under the Administrative Procedures Act.
The Association for Professionals in Infection Control and Epidemiology (APIC) said that stripping the long-standing right to comment on agency decisions is an “unprecedented and alarming attack on transparency, accountability, and public health.” Public participation has been a cornerstone of HHS policymaking for decades and ensures that health care providers, researchers, and patient advocates have a voice, APIC said. “The new policy seeks to eliminate this critical safeguard, putting vital public health initiatives, including infection prevention and control, at risk.”
The ramifications of HHS’ decision to rescind the Richardson Waiver could be significant, noted attorneys in a post for Crowell & Moring’s C&M Health Law blog. It will “inevitably allow the agency to issue new rules and policies concerning grants and contracts more quickly, with little to no stakeholder input and transparency.”
In a post on Sidley Austin LLP, attorneys agreed that there could be major impact due to the decision, but noted some aspects of HHS programs, such as certain Medicare rules, are subject to independent notice-and-comment requirements that operate independently from the Administrative Procedure Act. However, skipping public commentary may create litigation risk for the federal government.
“The rigors of the notice-and-comment rulemaking process often serve to strengthen agency justifications and assure courts that the agency has adequately weighed all important aspects of the issues addressed in the rule. Without that benefit, HHS may not gain the views of the interested public before adopting a new regulation, and it may be more likely to act in a way that courts find objectionable,” the attorneys wrote.