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Health Secretary Repeals Longstanding Transparency Rule, Expands Authority

In a significant move, Health and Human Services Secretary Robert F. Kennedy Jr. has abolished a longstanding transparency regulation, thereby enhancing his capacity to alter policies across various health sectors, including Medicaid and the National Institutes of Health (NIH), without prior public notification.

This repeal concerns the “Richardson Waiver,” a policy established by former health secretary in 1971, which mandated that regulations concerning property, loans, grants, benefits, or contracts be subjected to the federal “rulemaking” process. While this law typically provides exemptions for certain regulations, the initial intent behind the Richardson Waiver was to close those exemptions and ensure public involvement through prior notification and the opportunity for comments on proposed changes.

In his announcement, Kennedy emphasized that maintaining the requirements of the Richardson Waiver created unnecessary costs for both the Department and the public, obstructing its operational efficiency and hindering its adaptability to shifting legal and policy needs. He stated the termination of the waiver will allow health agencies more flexibility in implementing policy modifications related to grants and benefits.

Experts believe that eliminating the Richardson Waiver is crucial for the expedited execution of significant policy revisions. Professor Samuel Bagenstos from the University of Michigan, who previously served as the general counsel for HHS, asserted that adhering to this policy had been a considerable limitation, delaying potentially beneficial proposals.

Bagenstos noted, “Courts have held HHS to that waiver, so it’s not just something they could ignore. Considering HHS manages a $1.7 trillion budget, the majority of its activities relate to grants and benefits.” His insights underscore the substantial implications of this policy shift on the functioning of the department.

Furthermore, the waiver was referenced by state attorneys general earlier this month in their legal efforts to challenge NIH’s controversial cuts to research funding. They pointed out that the first Trump administration had supported the waiver in a 2020 Federal Register statement indicating a belief in the necessity of transparency for effective citizen engagement with proposed regulations.

While Kennedy’s decision removes the public comment requirement for many changes regarding departmental benefits, it does not eliminate it entirely. A distinct law continues to mandate that Medicare coverage changes undergo public scrutiny.

Bagenstos anticipates that this repeal will face legal challenges, acknowledging Kennedy’s authority to attempt such a directive, yet suggesting that the matter is far from resolved. “I think even the repeal will be challenged. I don’t think their announcement of it is the end of the story,” he concluded.

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