Health and Human Services Secretary Robert F. Kennedy Jr. ended a longstanding transparency rule on Friday, supercharging his authority to change policies in areas ranging from Medicaid to the National Institutes of Health without advance notice to the public.
Dubbed the “Richardson Waiver” after the former health secretary who issued the rule in 1971, the policy Kennedy repealed had required regulations related to property, loans, grants, benefits or contracts to go through the federal “rulemaking” process.
The law governing rulemaking usually exempts such regulations, but in response to calls at the time to close the exemption, officials voluntarily waived it. This meant that, until now, they would go through the process of notifying the public of their proposals and asking for comments before imposing changes.
“The extra-statutory obligations of the Richardson Waiver impose costs on the Department and the public, are contrary to the efficient operation of the Department, and impede the Department’s flexibility to adapt quickly to legal and policy mandates,” Kennedy said in a filing announcing the end of the waiver.
Now health agencies no longer need to go through the notice and comment process for many policy changes about grants and benefits. This includes new rules that could otherwise be stymied by backlash during a public comment period, like potentially adding in work requirements to Medicaid or redrawing how the National Institutes of Health funds research.
“It’s hugely important, because getting rid of the Richardson Waiver means that the agency can move a lot faster to implement big new policy changes,” said Samuel Bagenstos, professor of law at the University of Michigan.
Bagenstos previously worked as the general counsel for HHS under the Biden administration. He said following the policy was a major hurdle, bogging down proposals that might have otherwise been finalized.
“Courts have held HHS to that waiver, so it’s not just something they could ignore,” he said. “If you think about HHS, it’s a $1.7 trillion department. The overwhelming majority of what it does is grants and benefits.”
The waiver was also cited earlier this month by state attorneys general as one argument in their legal challenge seeking to block the National Institutes of Health’s controversial cuts to research funding. They quoted the first Trump administration supporting the waiver in a 2020 post by the department to the Federal Register.
“The Department believes that its decision-making ought to be as transparent as appropriate to better enable the citizenry to comment on its proposed rules and demonstration projects,” Trump HHS officials had said.
Kennedy’s reversal does not end public comment for all changes tied to benefits overseen by the department. A separate law requires changes to Medicare coverage to go through public comment.
Bagenstos predicted that Friday’s attempt to end the waiver would also be challenged, though he acknowledged Kennedy had the authority to seek to end it.
“I think even the repeal will be challenged. I don’t think their announcement of it is the end of the story,” he said.
