On February 28, Department of Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. announced the agency will no longer accept public comments on many of its rulemaking initiatives. This could impact rules important to NAIFA members, such as many Affordable Care Act (ACA) rules, including compensation for advisors on ACA insurance purchases.

Since 1971, HHS has operated under a policy, called the “Richardson Waiver,” that allowed for public notice and comment in connection with rulemaking even though there is an exception in the Administrative Procedures Act (APA) for “rules and regulations relating to public property, loans, grants, benefits, or contracts.” Kennedy said the waiver, which was never formally adopted in rulemaking, is “contrary to the clear text” of the APA and subjected HHS to requirements that are “beyond the maximum procedural requirements specified” in the law.

Legal experts say that inclusion of “benefits” in the rulemaking areas that will no longer be subject to APA rulemaking requirements could impact a wide array of HHS proposals. They could include a slew of ACA, Medicaid, and other public health rules. However, HHS has not yet issued any guidance on just which rulemaking areas will be subject to the demise of public notice and comment requirements, and so some legal experts are cautioning that the new policy may not be as broad as some initially fear.

Prospects: Litigation over the scope of this new policy is inevitable, say virtually all legal experts. In the meantime, the lack of public notice and comment will likely also result in challenges to rules as promulgated without public comment. This action appears to be one that will create considerable uncertainty in the ACA, Medicaid, Medicare and other public health space for the foreseeable future.

NAIFA Staff Contact: Mike Hedge – Senior Director – Government Relations, at mhedge@naifa.org.