The Department of Health and Human Services (HHS) announced Friday it is rescinding a decades-old policy that required public input on certain rulemaking procedures, effective immediately.
The move eliminates the 1971 “Richardson Waiver,” which mandated notice and comment periods for rules related to public property, loans, grants, benefits, or contracts. HHS says this aligns the department’s practices with the text of the Administrative Procedure Act (APA).
The 1971 “Richardson Waiver” was put into place in response to calls for increased transparency and public participation in government decision-making. Specifically:
- It waived the Administrative Procedure Act’s (APA) statutory exemption from procedural rulemaking requirements for rules and regulations relating to public property, loans, grants, benefits, or contracts.
- The policy required the Department of Health, Education, and Welfare (now Health and Human Services) to use the APA’s notice and comment rulemaking procedures for these types of matters, which were previously exempt.
- It was implemented during a time when there was a push for more openness in government processes, allowing the public to have input on a wider range of agency actions.
- The waiver was named after Elliot Richardson, who was the Secretary of Health, Education, and Welfare when the policy was adopted.
- It represented a voluntary commitment by the department to go beyond the minimum requirements of the APA, providing greater transparency and public engagement in the rulemaking process.
The Richardson Waiver thus expanded the scope of public participation in the department’s decision-making, particularly for rules that could significantly impact public benefits and government contracts.
Under the new policy, HHS agencies have discretion to apply notice and comment procedures but are not required to do so unless mandated by law. The department also indicated it will use the APA’s “good cause” exception more liberally, departing from previous instructions to use it “sparingly.”
The policy change takes effect upon publication in the Federal Register, scheduled for March 3.
