Key takeaway:
- RFK Jr. reverses longstanding policy requiring HHS to undergo a public comment period.
On March 3, the Federal Register published a policy statement from the Department of Health and Human Services (HHS) titled “Policy on Adhering to the Text of the Administrative Procedure Act” (the Policy Statement). 90 Fed. Reg. 11,029 (Mar. 3, 2025). In the Policy Statement, HHS explains that although the Administrative Procedure Act (APA) generally requires federal agencies to “give interested persons an opportunity to participate in the rulemaking through the submission of written data, views, or arguments,” the APA also allows these requirements to be exempted from “matter(s) relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” The Policy Statement states that the “APA also permits an agency to forgo these requirements for ‘good cause’ when the agency finds that the procedures are ‘impracticable, unnecessary, or contrary to the public interest.’”
The Policy Statement explains that HHS previously adopted a policy in 1971 known as the Richardson Waiver that waived the APA’s exemption from the department’s rulemakings and instructed that the good cause exception be used “sparingly.” Citing a U.S. Supreme Court case from 2015, HHS now claims that the prior policy imposed “obligations beyond the maximum procedural requirements specified in the APA.” Thus, the Policy Statement announced that “[e]ffective immediately, the Richardson Waiver is rescinded and is no longer the policy of the Department.”
HHS notes that this shift in policy does not remove its discretion to apply notice and comment, but it clearly states that HHS and its subdivisions are not required to include notice and comment for rulemakings on “matters relating to agency management or personnel or to public property, loans, grants, benefits, or contracts … except as otherwise required by law.”
This policy change is for the entire department, including its sub-departments and sub-agencies, such as the Centers for Medicare & Medicaid Services, the Food and Drug Administration, the Centers for Disease Control and Prevention, the National Institutes of Health, the Indian Health Service, the Health Resources and Services Administration and others.
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