The U.S. Department of Health and Human Services (HHS) recently announced that it was withdrawing a policy that has been in effect since 1971 known as the “Richardson Waiver.”1 The Richardson Waiver required HHS to publish proposed rules and obtain public comments before making most policy changes. With the rescission of the Richardson Waiver, HHS may no longer ask for public input when issuing rules.
Background
Under the federal Administrative Procedures Act (“APA”), federal agencies must generally follow a rulemaking process where they propose new rules in advance, allow the public to comment on those rules, and then finalize the rules.2 The APA allows agencies to bypass this process for “good cause” when the agencies find that it would be “impracticable, unnecessary, or contrary to the public interest.”3 The APA also exempts “matter(s) relating to agency management or personnel or to public property, loans, grants, benefits, or contracts” from the ordinary rulemaking process.4 The Richardson Waiver waived this exemption for HHS and specified that HHS would apply the “good cause” exception “sparingly.”
In rescinding the Richardson Waiver, HHS Secretary Robert F. Kennedy Jr. suggested that the Waiver conflicted with the text of the APA and imposed additional burdens on HHS not required by federal law. He pointed to a 2015 Supreme Court case (Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 100 (2015)) as a reason for this change in policy. He also indicated that HHS might use the APA’s “good cause” exemption more often, thereby limiting public input.
What This Means
This policy change could have a big impact on Medicaid and other government-funded health programs. Since Medicaid is a grant program, HHS may take the position that it can speed up the regulatory process by adopting or changing rules without a formal notice period or public feedback. Even though they are no longer required to do so, agencies within HHS, like CMS, may still choose to allow public input.
Some laws, other than the APA, may require public notice. For example, the Social Security Act specifies that HHS must provide notice and a 60-day comment period before changing Medicare provider payment rules.5 Secretary Kennedy specified that, in instances like this, the new policy will not apply, and HHS will follow the required process.
In short, while this policy change removes some public notice requirements, other rules and laws may still require agencies to keep the public informed.
1 The new policy statement is available at 90 FR 11029 (March 3, 2025).
2 5 U.S.C. § 553.
3 5 U.S.C.§ 553(b)(3).
4 5 U.S.C. § 553(a)(2).
5 42 U.S.C. § 1395hh(a)(2); as discussed in Azar v. Allina Health Services.
