Independent Agency Rules — Week of Sep 1, 2025

This week, a formal legal opinion from the Government Accountability Office was entered into the Congressional Record by Senator Wyden. The GAO concluded that the Department of Health and Human Services broke the law when it failed to notify Congress about a major policy change made back in March 2025. That policy change eliminated a 55-year-old practice — known as the Richardson Waiver — under which HHS voluntarily allowed public input on rules affecting benefits programs like Medicare and Medicaid, even when it wasn't strictly required to do so.

This might matter because the rescinded policy was one of the main ways ordinary people, healthcare providers, and advocacy groups could weigh in on HHS rules that directly affect their lives. Without it, HHS agencies now have broader authority to issue rules about benefits, grants, and contracts without asking for public comment first. The GAO's finding that HHS didn't even submit this change to Congress as required could also mean Congress was denied its legal right to review and potentially block the policy.

There are important alternative explanations to consider. The most plausible is that HHS is simply following the law as written: the Administrative Procedure Act already exempts these types of rules from requiring public comment, and HHS may reasonably argue that its old policy went beyond what the law demanded. Additionally, just because HHS can now skip public comment doesn't mean it will — the real test is whether future rules actually bypass public input. It's also worth noting that the GAO's opinions, while highly respected, aren't legally binding, and HHS may disagree with the conclusion.

Limitations: This analysis is based on AI review of publicly available government documents from one week. The practical impact of this policy change depends on how HHS exercises its new discretion going forward, which remains to be seen.