In a significant shift in regulatory procedure, the Department of Health and Human Services (HHS) announced it will no longer use the notice-and-comment rulemaking process for policies related to agency management, public property, loans, grants, benefits, or contracts. This decision, announced by Secretary Robert F. Kennedy Jr., marks a break from 50 years of agency practice and rescinds the 1971 “Richardson Waiver.”
The move streamlines the rulemaking process, allowing HHS to implement policy changes more quickly, particularly in times of public health emergencies. However, critics argue that removing public participation from the process diminishes government transparency and accountability, leaving citizens and healthcare providers without a voice in crucial decisions.
This policy shift raises important questions about the balance between efficiency and public engagement in federal rulemaking. While faster decision-making can be beneficial in urgent situations, the lack of public input could lead to unintended consequences.
The Case for Removing the Notice-and-Comment Process
Faster Response in Public Health Crises
One of the strongest arguments in favor of eliminating the notice-and-comment requirement is that it allows HHS to respond more quickly to public health crises. The traditional rulemaking process can take months—or even years—as agencies solicit public input, review comments, and make revisions before finalizing a rule. In emergencies, this delay can be costly.
For example, during the COVID-19 pandemic, the government had to implement rapid policy changes regarding vaccine distribution, telehealth services, and hospital funding. In such situations, requiring a lengthy public comment period could slow down critical public health measures. Removing this procedural hurdle ensures that HHS can act swiftly when immediate action is needed.
Reducing Bureaucratic Red Tape
Another potential benefit of this policy shift is reducing the administrative burden on HHS. The notice-and-comment process requires significant time and resources to review thousands of public comments and make adjustments. By eliminating this requirement for certain types of policies, the agency can focus more on implementation rather than procedural delays.
This efficiency may be particularly beneficial for routine administrative matters, such as internal management policies or technical changes that do not directly impact beneficiaries. By allowing HHS to bypass unnecessary procedural steps, the government can operate more effectively.
The Case Against Eliminating Public Input
Loss of Transparency and Public Accountability
While efficiency is important, the biggest concern with removing the notice-and-comment process is the loss of public participation in decision-making. For decades, this process has allowed healthcare providers, advocacy groups, and ordinary citizens to weigh in on policy changes before they take effect.
Without this safeguard, decisions affecting millions of Americans—such as changes to Medicaid eligibility, Medicare reimbursement rates, or funding for community health programs—can be made without input from those directly affected. This reduces government accountability and increases the risk of policies that do not fully consider the needs of patients, providers, and other stakeholders.
Potential for Unchecked Decision-Making
Another significant risk is the concentration of power within HHS leadership. Under the new policy, the agency has greater discretion to enact rules without external scrutiny. This raises concerns about potential overreach or policy changes driven by political agendas rather than public interest.
In the past, public comments have played a crucial role in improving proposed rules and preventing harmful policies. For instance, previous rulemaking efforts that sought to limit Medicaid coverage or impose burdensome requirements on healthcare providers were modified or abandoned after receiving strong public opposition. Without this process, future policies could be implemented without the same level of scrutiny.
Impact on Healthcare Providers and Beneficiaries
The healthcare industry relies on clear, stable regulations to plan for the future. If HHS can change policies without notice-and-comment rulemaking, hospitals, nursing homes, and clinics may struggle to adapt to sudden shifts in funding, reimbursement rules, or regulatory requirements.
Additionally, beneficiaries of programs like Medicare and Medicaid may face unexpected changes to their benefits without having the opportunity to provide input. This could lead to confusion, legal challenges, and unintended harm to vulnerable populations who depend on these services.
Finding a Middle Ground: Is There a Better Solution?
Rather than eliminating notice-and-comment procedures entirely, a more balanced approach could be to modify the process for specific circumstances. For example:
- Expedited Rulemaking in Emergencies: HHS could establish a fast-track process for public health emergencies while maintaining public input for non-urgent rule changes.
- Targeted Exemptions: Instead of a blanket policy, HHS could limit the elimination of notice-and-comment rulemaking to purely administrative matters that do not affect public benefits or healthcare services.
- Increased Congressional Oversight: If HHS is granted greater discretion, Congress could implement stronger oversight mechanisms to ensure accountability and prevent misuse of the new authority.
Or will the elimination of the notice and comments period make no difference at all? How often do the public’s comments impact the wording of a rule? I do not know the answer.
Conclusion: A Policy with High Stakes
The decision by HHS to eliminate notice-and-comment rulemaking is a double-edged sword. On one hand, it enables faster decision-making in public health crises and reduces bureaucratic delays. On the other hand, it risks undermining government transparency and excluding the public from critical policy decisions.
As this policy takes effect, its impact will depend on how HHS wields its new authority. If used responsibly, it could improve efficiency in public health responses. However, if misused, it could erode trust in the healthcare system and lead to significant policy instability.
Ultimately, finding a middle ground that balances efficiency with public accountability may be the best path forward. The stakes are too high to sacrifice transparency for speed, and the American people deserve a voice in the policies that shape their healthcare and well-being.