Department of Health and Human Services Signals Changes to Rulemaking Process

On March 3, the U.S. Department of Health and Human Services (HHS) issued a policy statement in the Federal Register rescinding the Richardson Waiver. This waiver, implemented by HHS in 1971, stated that the department would engage the public by issuing proposed regulations for public comment, often referred to as rulemaking, for “matter[s] relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”

It’s not clear how this will impact the federal rulemaking process, as the terms “public property, loans, grants, benefits or contracts” are not clearly defined in the March 3 policy statement, the Richardson Waiver, or the Administrative Procedures Act (APA). The APA is a federal law that requires many federal regulations to go through a rulemaking process.

The decision to rescind the Richardson Waiver raises serious questions about the public’s ability to provide feedback on regulations to avoid negative or unintended consequences.

For example, most Medicare payment systems—such as the physician fee schedule for outpatient services and the prospective payment systems for skilled nursing facilities and home health agencies—go through an annual rulemaking cycle where proposed policies are issued for a 60-day comment period before being finalized. This level of public engagement often leads to positive changes that ensure policies minimize administrative burden and/or are in line with clinical standards of practice that optimize access to care for Medicare beneficiaries. It’s not clear if rescinding the Richardson Waiver would impact this process as Medicare is often referred to as a “benefit” program.

HHS could begin to implement a variety of policies across agencies within its jurisdiction—such as the Centers for Medicare & Medicaid Services, the Centers for Disease Control, and the National Institutes of Health—without a public comment process.

What’s Next?

The notice rescinding the Richardson Waiver, along with several of the executive actions the current Administration has taken since January 20, are often broadly or vaguely worded, which makes it difficult to understand their intent, implementation, and impact. Currently there is little to no publicly available implementation guidance.

As ASHA gains experience with implementation under the current Administration, we will advocate on behalf of our members and their patients. We will also provide additional guidance on how to comply with any changes and how to advocate on your own behalf.

What You Can Do

The best way to stay informed of what changes are being implemented and what ASHA is doing for you and with you is to:

1. Follow us on social media platforms such as Facebook, Instagram, LinkedIn, and X.
2. Monitor ASHA Advocacy News.
3. Sign up for ASHA’s advocacy email listserv, Headlines.

As the incoming Administration’s agenda comes into focus, we will share information with our members via these channels.

Questions?

Contact ASHA’s health care and education policy team at reimbursement@asha.org.