HHS Rescinds Richardson Waiver

On Feb. 28, HHS issued a policy statement announcing changes to rulemaking processes for agencies within HHS. According to the statement, HHS is rescinding a requirement – known as the Richardson Waiver – that its agencies engage in “notice-and-comment” rulemaking for matters otherwise exempted from this process under the Administrative Procedure Act (APA). While the APA generally requires agencies to engage in notice-and-comment rulemaking before issuing regulations, there are exceptions for matters related to “agency management or personnel or to public property, loans, grants, benefits, or contracts,” or if an agency “for good cause” determines “that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 

The rescission of the Richardson Waiver means that these matters are thus exempt from notice and comment procedures, except as otherwise required by law. Of note, Medicare is separately subject to notice and comment rulemaking requirements and requirements imposed by other statutory provisions, but most programs within HHS do not have similar statutory requirements. The Social Security Act also imposes specific notice and comment requirements on Medicaid, and many ACA provisions are subject to the APA’s notice and comment requirement. HHS will need to demonstrate a good cause exemption to promulgate rulemakings without notice and comment or at least 30-days’ advance notice.

Cigna is working closely with legal counsel and trade associations to determine the impact on rulemaking processes for various agencies and programs.