Since being confirmed by the Senate on February 13, Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. has taken actions that appear to contradict his commitment to “radical transparency.” On February 28, Kennedy announced that he would be rescinding a 1971 policy that required the agency to notify the public about and solicit comments on much of the agency’s work, including grant making and contracts.
Kennedy used the 1946 Administrative Procedure Act (APA), which requires agencies to notify and take comments from the public before implementing certain regulations, to justify this move. The APA exempts agencies from this public participation requirement for “good cause” when the process is determined to be “impracticable, unnecessary, or contrary to the public interest.”
In 1971, HHS took up a new policy, known as the Richardson Waiver, which directed the agency to go beyond the requirements of the APA, requiring public notification and comment periods for most of the agency’s work. Kennedy argues that the Richardson Waiver not only contradicts the APA but has imposed significant costs on the agency and the public in addition to decreasing efficiency. By rescinding the waiver, he claims to be properly re-aligning HHS with the APA. He has also instructed the agency to make use of the APA’s “good cause” exemption, something the agency has generally avoided over the past fifty years.
Critics are concerned that this move will make it much easier for Kennedy to impose major changes at federal health agencies while also making it more difficult to challenge those changes in court. In particular, experts worry that the recission of the Richardson Waiver might have significant implications for the court stay against proposed changes in NIH facilities and administration (F&A) cost rates, which had no public notification or comment period prior to the new policy’s announcement. The legal challenge to the new F&A rates is based, in part, on this lack of public participation. If public notice and comments are no longer required, such lawsuits may be rendered moot. It is possible that, as with many other actions by the Trump administration, Kennedy’s directive will also be challenged in court, making the long-term consequences unclear at this time.
FABBS is concerned and actively monitoring HHS actions that limit public participation. For example, NIH has announced that four upcoming grant application review meetings will be closed to the public, the notice indicates that public discussion could disclose confidential and/or personal information. However, past such meetings were regularly open to the public.
