HHS Issues Policy on Adhering to the Text of the Administrative Procedure Act
HHS Issues Policy on Adhering to the Text of the Administrative Procedure Act
- On February 28, 2025, the Department of Health and Human Services (HHS) issued a Policy on Adhering to the Text of the Administrative Procedure Act (Policy Statement) rescinding a longstanding policy where HHS agencies used full “notice and comment” procedures beyond the minimum circumstances required by the Administrative Procedure Act (APA).
- The Policy Statement rescinds “the Richardson Waiver,” which refers to a 1971 HHS policy where HHS expanded its use of notice and comment rulemaking beyond the minimum statutory requirements. The Policy Statement notes that “Agencies and offices of the Department have discretion to apply notice and comment procedures to these matters but are not required to do so, except as otherwise required by law.”
- This policy change will allow the agency to pursue certain regulatory changes without public comment periods, unless otherwise required by law.
- Moving forward, HHS agencies are directed to:
- Skip notice and comment for rulemaking on “grants, benefits, or contracts,” and certain other areas, except as required by law.
- Broadening the “good cause” exemption
- The Policy Statement does not explicitly say what types of rules it anticipates will no longer be subject to notice and comment rulemaking going forward. This new policy may apply to the Medicaid program which may arguably be considered a grant. Note that there is a separate rulemaking standard for Medicare regulations at 42 U.S. Code § 1395hh, so those will continue to follow notice and comment procedures.
For questions, please reach out to Vicky Jucelin.
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