Alexander Howard Discusses HHS Secretary Kennedy's Richardson Waiver Recission

Two weeks after being sworn in, last Friday HHS Secretary Robert Kennedy announced, “effectively immediately, the [1971] Richardson Waiver is rescinded and is no longer policy of the Department.” He explained his decision by stating “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. “ The waiver, issued by President Nixon’s HEW Secretary, Elliot Richardson, effectively meant HHS would use the 1946 Administrative Procedure Act’s “notice of proposed rule making” (NPRM) process broadly and its “good cause” exception sparingly. (The APA essentially governs the process by which federal agencies develop and issue regulatory rules.) Secretary Kennedy rescinded the waiver citing APA language that exempts rule making, effectively public input, from matters “relating to agency management or personnel or to public policy, loans, grants, benefits or contracts” and permits departments to forgo public comment for “good cause” or when the procedure is “impracticable, unnecessary or contrary to the public interest.” Though Secretary Kennedy’s decision will almost certainly be challenged in court, in the near term HHS can make significant, and now unquestioned, regulatory changes to, for example, the Medicare and Medicaid programs.

Sec. Kennedy’s one page, March 3 Federal Register notice is at: https://www.govinfo.gov/content/pkg/FR-2025-03-03/pdf/2025-03300.pdf.

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