On March 3, 2025, the Department of Health and Human Services (HHS) announced the rescission of a long-standing agency policy colloquially known as the “Richardson Waiver,” which could dramatically curtail public notice and opportunity to comment on regulatory changes to federal benefit, grant, and other programs.
The Richardson Waiver, adopted by the Department in 1971 under then-Secretary Elliot Richardson, obligated the Department to follow public notice-and-comment procedures for rulemaking otherwise exempt from such procedures under the Administrative Procedure Act (APA). These procedures include publication of a notice of proposed rulemaking in the Federal Register, provision of an opportunity for the public to submit comments, and publication of a final rule accompanied by a statement of the rule’s basis and purpose. In particular, the APA explicitly exempts from these procedures, rulemaking on “matter(s) relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”
Importantly, the Department is legally obligated to continue to follow notice-and-comment rulemaking procedures where otherwise required by law. For the Medicare program, this includes any rulemaking that substantially affects Medicare benefits, payment for services, or eligibility, and for the Medicaid program, rulemaking seeking to make certain changes to how states finance their programs.
Rescission of the Richardson Waiver also opens the door to the Department’s increased use of the APA’s “good cause” exception, which allows an agency to forgo notice-and-comment procedures when it finds that such procedures are “impracticable, unnecessary, or contrary to the public interest.” According to the notice announcing rescission of the waiver, HHS may now use the good cause exception “in appropriate circumstances in accordance with the requirements of the APA” rather than “sparingly.”