U.S. HHS Rescinds “Richardson Waiver”

The U.S. Department of Health and Human Services (HHS) recently rescinded the longstanding “Richardson Waiver.” [See 90 Fed. Reg. 11029 (3/3/2025).]  As background, the Administrative Procedure Act (APA; Pub. L. No. 79-404, 60 Stat. 237, 6/11/1946) includes an exception to the notice and comment rulemaking procedure for any matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”  On 1/28/1971, the Department of Health, Education, and Welfare (precursor to the HHS) Secretary Elliot Richardson issued a statement that “The public benefit from such participation should outweigh any administrative inconvenience or delay which may result from use of the APA procedures in the five exempt categories.  Effective immediately, all agencies and offices of the Department which issue rules and regulations relating to public property, loans, grants, benefits, or contracts are directed to utilize the public participation procedures of the APA, 5 U.S.C. 553.” [See 36 Fed. Reg. 2532 (2/5/1971).]  Rescinding the Richardson Waiver will likely affect National Institutes of Health grants and Medicaid eligibility rulemaking, but Medicare rulemaking is independent by statute (42 U.S.C. § 1395hh).  Rulemaking challenges/litigation opportunities also remain.