U.S. HHS Abruptly Withdraws Longstanding “Richardson Waiver” Requiring Notice and Comment for Public Benefit Rules

On February 28, 2025, the U.S. Department of Health and Human Services (HHS) rescinded a longstanding memo, referred to as the “Richardson Waiver,” pursuant to which the Department voluntarily agreed to (1) follow the notice-and-comment rulemaking procedures in the Administrative Procedure Act (APA) for rules related to “agency management or personnel or to public property, loans, grants, benefits, or contracts”; and (2) invoke the APA’s good-cause exception only “sparingly.”¹ Given that components of HHS administer some of the U.S. economy’s most important public benefit programs, including Medicaid and Medicare, this rescission could have significant impacts. It also comes as HHS faces a significant flow of new litigation challenging actions by the Trump administration, including on the basis of allegedly violating notice-and-comment requirements. This surprise change in policy, which was effectuated through a policy statement notice, will almost certainly alter the litigation landscape.

The APA generally requires federal agencies to provide advance notice and an opportunity for public comment on “substantive” (also called “legislative”) regulations but provides an exception for regulations “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” 5 U.S.C. § 553(a)(2). In 1969, the Administrative Conference of the United States (ACUS) issued Recommendation 69-8, which observed that rules related to public grants, benefits, and contracts “bear heavily upon nongovernmental interests” and that issuing rules related to those subjects without notice and comment was “unwise.” ACUS later described the public benefit exception as an “anachronism.”

Following that recommendation, many agencies voluntarily committed themselves to undertake notice and comment for otherwise exempt actions. HHS adopted such a policy in an October 1970 memorandum commonly referred to as the “Richardson Waiver.” HHS published the policy in the Federal Register in 1971 but did not formally promulgate it through notice-and-comment rulemaking.² The Reagan administration proposed a rule that would have codified the Richardson Waiver while also establishing a fairly broad exception HHS could invoke at its discretion, allowing the Department to skip notice and comment “for rules relating to public property, loans, grants, benefits, and contracts if, in its judgment, the delay that would result from such procedures would impair the attainment of program objectives or would have other disadvantages that outweigh the benefits of receiving public comment prior to issuance of the rules.”³ The proposed regulation also made clear that HHS’ “voluntary use of notice and comment procedures is not intended to create any judicially enforceable rights.”⁴ The proposed regulation was never finalized.

Last week, under new Secretary Robert F. Kennedy Jr.’s leadership, HHS issued in the Federal Register a policy statement rescinding the Richardson Waiver, effective immediately. HHS stated that the Richardson Waiver was “contrary to the clear text of the APA” and cited in support a Supreme Court decision holding that courts may not impose on agencies extrastatutory procedural requirements.5 HHS also stated that the “extra-statutory obligations of the Richardson Waiver 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.”⁶

The start of a new presidential administration commonly results in rapid regulatory and policy changes, and the recission of the Richardson Waiver could significantly affect how HHS implements the current period of transition. Although the effect of the recission may be less pronounced for HHS components that do not administer public benefits (e.g., the Food and Drug Administration), some of HHS’ largest components (e.g., the Centers for Medicare & Medicaid Services) operate massive public benefit programs. Following the recission, HHS may broadly take the position that a range of rulemaking activities related to those programs that were previously subject to notice-and-comment rulemaking no longer require it. There are limits to that position, as some aspects of the programs administered by HHS (especially Medicare) are subject to independent notice-and-comment requirements that operate independently from the APA,7 but the impact could still be significant.

Nevertheless, skipping notice-and-comment rulemaking may create litigation risk for the government and litigation opportunities for stakeholders. Litigants may, for example, opt to challenge the agency’s determination that a given regulation falls within the public benefits exception, or that the “good cause” exception applies. Even when HHS acts appropriately without notice and comment, moreover, courts will still scrutinize the Department’s actions to ensure they are constitutional, consistent with applicable statutes, and not arbitrary or capricious. The rigors of the notice-and-comment rulemaking process often serve to strengthen agency justifications and assure courts that the agency has adequately weighed all important aspects of the issues addressed in the rule. Without that benefit, HHS may not gain the views of the interested public before adopting a new regulation, and it may be more likely to act in a way that courts find objectionable.

¹HHS, Policy on Adhering to the Text of the Administrative Procedure Act, 90 Fed. Reg. 11,029 (Mar. 3, 2025).
²See 36 Fed. Reg. 2,532 (Feb. 5, 1971).
³47 Fed. Reg. 26,861 (June 22, 1982).
⁴Id. at 26,680.
⁵90 Fed. Reg. at 11,029.
⁶Id.
⁷See, e.g., 42 U.S.C. §§ 1395y(l), 1395hh(a)(2), 1395hh(b)(1).