The new US Department of Health and Human Services Secretary (HHS) Robert F. Kennedy Jr. rescinded on Monday a long-standing public comment practice at the nation’s largest public health agency—shortly after promising a “new era of radical transparency” last month.
In a policy statement on Feb. 28, Kennedy said the “extra-statutory” public comments “impose costs on the department and the public, are contrary to the efficient operation of the department, and impede the department’s flexibility to adapt quickly to legal and policy mandates.”
Since the move effectively limits citizens from sharing their opinions with the agency, experts have shared concerns that removing these opportunities for public commentary could impede the agency’s ability to operate in the public’s interest.
Lawrence Gostin, a law professor and chair of global health law at Georgetown University, posted on X that the move allows the HHS to “operate in secret” and “ignore the views of key stakeholders.”
HHS has the biggest budget in the federal government—it received $1.7 trillion in 2024—and oversees over 100 programs for the health and wellness of millions of people in the US through its 13 departments, including the FDA, the NIH, and the Centers of Medicare and Medicaid (CMS).
History lesson. Since 1946, federal agencies have operated under the Administrative Procedure Act (APA), which requires them to hold a public comment period for all regulations except those related to topics like loans, grants, and contracts.
The APA also has a good cause exemption for cases where agencies find comment periods “impracticable, unnecessary, or contrary to the public interest.”
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In 1971, however, the HHS instituted something called the “Richardson Waiver,” which essentially nullified these exemptions so that anyone could view HHS’s notices on the Federal Register and provide feedback. The waiver also encouraged the department to use the good cause exemption “sparingly,” according to a 1971 Federal Register document.
Now, about 54 years later, Kennedy has rescinded this waiver, writing in his policy statement that it goes “beyond the maximum procedural requirements.”
What it means. Cary Coglianese, a professor of law and political science at the University of Pennsylvania Carey Law School, reportedly told Stat that agencies have historically been able to go above the APA, and Kennedy’s decision “represents a backsliding on good government practices and it doesn’t really provide any justification for that backsliding.”
It’s still unclear how communication from HHS will change, according to Stat, as the law includes language like “public benefit” without clear definitions of what the terms encompass.
Axios reported on Monday that rescinding opportunities for public comments could impact whether the proposed research funding cap at NIH will stick, and it could make it easier to issue rules around Medicaid work requirements.
This move from Kennedy comes after his controversial appointment last month, and amid ongoing staff exits at HHS as well as cuts to NIH and CMS funding.