HHS Rescission of the ‘Richardson Waiver’ Affects Public Comment on Some HHS Rulemaking

In a policy statement published on Monday, March 3, the U.S. Department of Health and Human Services (HHS) announced that it has rescinded the 1971 policy known as the “Richardson Waiver.”

The Richardson Waiver has allowed for public comment on a variety of health department decisions for many decades.  The rescinding of this policy could result in fewer opportunities for stakeholders and members of the public to weigh in on HHS regulatory action. The Administrative Procedure Act (APA) generally requires federal agencies to give interested parties an opportunity to participate in rulemaking through the submission of written comments.  However, the APA exempts from these notice-and-comment requirements “matter(s) relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”  Under the 1971 Richardson Waiver, HHS chose to require the APA’s notice-and-comment rulemaking procedures for these types of matters, even though they are not required to do so under law.

According to a memo from the American Hospital Association (AHA) providing guidance and analysis of this policy change, the Centers for Medicare and Medicaid Services (CMS) could arguably forgo public comment on changes to a broad swath of Medicaid regulations (for example), including Medicaid Managed Care regulations, regulations interpreting and implementing Medicaid state plan requirements, program integrity rules, and rules governing state supplemental payment programs.

The HHS notice rescinding the policy pointed to the cost to HSS and the public of “extra-statutory obligations of the Richardson Waiver,” calling such costs “contrary to the efficient operation of the Department, and imped[ing] the Department’s flexibility to adapt quickly to legal and policy mandates.”