Health and Human Services Secretary Robert F. Kennedy Jr. announced a new policy on Friday that ends over 50 years of public involvement in the department’s rulemaking process by eliminating public comments in certain cases.
Under this policy, the department is no longer required to hold a public notice-and-comment period after publishing proposed rules on matters “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”
Advocates say that public comment during rulemaking is vital because it allows stakeholders like medical professionals, advocacy groups, and individuals impacted by the rules to bring evidence, voice concerns, and shape policies directly affecting them. By removing public comments, HHS may be able to enact regulations disproportionately impacting some communities without meaningful engagement of those most adversely affected.
“For decades HHS policies affecting public health and research institutions have benefitted from public stakeholder participation in the policy process. Public input is an essential element of the policy process that reflects our nation’s democratic principles,” Matt Owens, president of the Council on Governmental Relations, told CBS News.
Kennedy had previously pledged that under his command, HHS would be committed to “radical transparency,” but critics argue that rescinding public comment opportunities contradicts this commitment and undermines the original intent of the Administrative Procedure Act (APA).
“My impression of the rule is that [Kennedy is]… trying to insulate himself from accountability,” Lawrence Gostin, faculty director of O’Neill Institute for National & Global Health Law at the Georgetown University Law Center, told The Hill.
Kennedy’s policy shift overturns the department’s 1971 “policy on Public Participation in Rule Making,” commonly referred to as the “Richardson Waiver.” In the original waiver, then-Assistant Secretary for Administration Rodney H. Brady emphasized that the department’s decision to adhere to the notice-and-comment process, despite being exempt, “should result in greater participation by the public in the formulation of this Department’s rules and regulations.”
“The public benefit from such participation should outweigh any administrative inconvenience or delay which may result from use of the APA procedures in the five exempt categories,” Brady continued.
However, Kennedy’s policy shift marks a significant departure from this long-standing approach. “Effective immediately, the Richardson Waiver is rescinded and is no longer the policy of the Department,” Kennedy’s statement says.
Jeff Davis, health policy director for McDermott+ Consulting, told Fierce Healthcare that Kennedy’s policy may infringe on the Supreme Court’s 2019 Azar v. Allina Health Services, which held that, in certain situations, HHS must follow notice-and-comment rulemaking procedures even where the APA does not mandate them explicitly.
The move to cancel public comment periods follows closely on the heels of HHS postponing a vital vaccine committee meeting for the Centers for Disease Control and Prevention, explaining that the delay was meant to “accommodate public comment in advance of the meeting.”
This pattern of limiting public input extends beyond vaccine policy, reaching into broader funding decisions within HHS. For example, last month, a coalition of National Institutes of Health (NIH) grantees sued HHS after the agency drastically reduced funding for research overhead and administrative expenses without offering a public comment period.
While Kennedy’s policy is likely attempting to render this lawsuit moot, Axios has said that its impacts will likely be far broader than NIH contracts and could make it easier for Kennedy to fast-track other types of controversial policy proposals. For instance, last month President Donald Trump signed an executive order requiring a review of treatment involving antidepressants, antipsychotics, and obesity medication for children, claiming that those medications posed a “threat” to adolescents. Since being confirmed, Kennedy has also pledged to investigate abortion pills, reversed HHS guidance on gender-affirming care, and targeted transgender people.
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