HHS Secretary Kennedy Ends Transparency Rule, Supercharging Policy Changes

Health and Human Services Secretary Robert F. Kennedy Jr. took a significant step on Friday, ending a long-standing transparency rule known as the "Richardson Waiver." This move effectively supercharges his authority to change policies across various areas, including Medicaid and the National Institutes of Health (NIH), without providing prior notice to the public.

The End of an Era: Richardson Waiver Repealed

Dubbed after former Health Secretary Caspar Weinberger, who issued the rule in 1971, the Richardson Waiver mandated that regulations concerning property, loans, grants, benefits, or contracts undergo the federal "rulemaking" process. While the law governing rulemaking typically exempts such regulations, officials voluntarily waived this exemption in response to calls for increased transparency.

This meant that, until now, health agencies were obligated to notify the public about proposed changes and solicit comments before implementing them. The waiver ensured a degree of public involvement in shaping health policies.

Kennedy's Justification: Efficiency and Flexibility

In a filing announcing the end of the waiver, Kennedy argued that "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."

He asserted that removing this requirement would allow for swifter implementation of new policies.

Impact on Policy Changes: A Faster Pace

The repeal of the Richardson Waiver has significant implications for future policy changes. Now, health agencies are no longer bound by the notice and comment process for many regulations related to grants and benefits. This could lead to a faster implementation of new rules, potentially including controversial ones.

Samuel Bagenstos, professor of law at the University of Michigan and former general counsel for HHS under the Biden administration, highlighted this point, stating that "getting rid of the Richardson Waiver means that the agency can move a lot faster to implement big new policy changes."

He emphasized that the previous requirement posed a major hurdle, delaying proposals that could have otherwise been finalized.

A $1.7 Trillion Department: The Stakes Are High

With HHS overseeing a budget of $1.7 trillion, the majority of its operations revolving around grants and benefits, the impact of this decision is far-reaching. Critics argue that the move undermines transparency and public participation in shaping health policies.

The Council on Governmental Relations, representing research universities and institutions, criticized Kennedy's action, stating that it "flies in the face of the Trump Administration's professed mandate for greater transparency."

Challenges Ahead: Legal Battles Loom

While Kennedy has the authority to seek to end the Richardson Waiver, his decision is likely to face legal challenges. Bagenstos predicted that the repeal attempt would be contested, suggesting that the announcement is not the final chapter in this story.

The legal ramifications of this move remain to be seen, but it undoubtedly marks a significant shift in the landscape of health policymaking in the United States.