RFK Jr’s Public Comment Ban: The Silent Shift in Health Care Rulemaking
The erosion of administrative law continues, and with it, the dismantling of decades-long precedent. In June, the Supreme Court overturned a 40-year-old doctrine that allowed federal agencies to interpret their own ambiguous statutes. Later this month, the Court will consider reviving a 1935 doctrine that could shift the power of agency decision-making back to Congress. And in the latest shift, the Department of Health and Human Services (HHS) has announced a major policy change—rescinding public participation in rulemaking, a practice that has been in place for over 50 years.1
A Half Century of Public Input Ends
Since 1971, HHS has voluntarily invited public input on its rulemaking through the Richardson Waiver, named after then-Secretary Elliot Richardson. While the Administrative Procedure Act (APA) exempts rules about "public property, loans, grants, benefits, or contracts" from notice-and-comment requirements, HHS chose a more inclusive path. The original waiver stated this broader participation would "result in greater participation by the public in the formulation of this Department's rules and regulations" and that "public benefit from such participation should outweigh any administrative inconvenience or delay."2 The logic is simple: better public participation leads to better rules.
That era is now over. Effective immediately, HHS will no longer accept public comments on rules falling under these exemptions unless specifically required by other laws. The department argues this change will increase efficiency and reduce administrative burden, but critics see it as a loss of public influence over health policy.1
While Medicare and Medicaid programs are likely to maintain their existing comment requirements due to separate statutory obligations, other HHS programs and initiatives could see significant changes in how they engage with stakeholders.3
The policy change primarily affects:
- Distribution of certain HHS grants and contracts;
- Updates to research funding requirements; and,
- Modifications to various public health programs.
The department argues that the previous policy "imposes obligations beyond the maximum procedural requirements specified in the APA." In other words, HHS is returning to what it views as the basic requirements of administrative law, rather than maintaining additional voluntary procedures.1
A Move Away From Transparency?
Just weeks ago, Robert F Kennedy Jr launched the “Make America Health Again” Commission through President Trump’s executive order, emphasizing “radical transparency” in health agency operations. The commission's stated goals include:4
- Increasing transparency in federally funded health research;
- Establishing new frameworks for industry-funded project review;
- Enhancing data transparency related to chronic disease; and,
- Restoring "integrity of the scientific process."
Yet last week’s policy position appears to diverge from these principles. While the commission advocates for greater openness, HHS is adjusting its approach to a long-standing mechanism for public oversight in health policy.
HHS further defends the move by arguing that the APA's text never required such broad public participation. According to the agency, the previous policy created obligations that went beyond what the law mandates—framing the rollback as a return to statutory intent rather than a departure from transparency.1
Still, for those who have long relied on public comment to shape health regulations, the change raises concerns about whether the administration's vision of "radical transparency" extends to the rulemaking process itself.
What Happens Next?
The immediate effects are already visible. HHS has indicated that while existing comment periods will continue, new rules falling under the APA exemptions won't require public input.1 This could affect several pending initiatives:
- Updates to research funding frameworks;
- Changes to public health grant requirements;
- Modifications to health education programs; and,
- Implementation of various benefit programs outside Medicare/Medicaid.
The health care community now faces a transformed rulemaking landscape. While HHS maintains discretion to seek public comment, the guarantee of participation in many crucial decisions has ended. This represents more than a procedural change—it's yet another fundamental shift in how certain health policies will develop.
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References
1. Federal Register Notice. Policy on adhering to the text of the Administrative Procedure Act. Published March 3, 2025. Accessed March 3, 2025. https://www.federalregister.gov/documents/2025/03/03/2025-03300/policy-on-adhering-to-the-text-of-the-administrative-procedure-act
2. Federal Register Archives. Public participation in rule making: statement of policy. Published February 5, 1971. Accessed March 4, 2025. https://archives.federalregister.gov/issue_slice/1971/2/5/2527-2534.pdf#page=6
3. Goldman M. RFK Jr kills policy on public comment for health regulations. Axios. Published February 25, 2025. Accessed March 3, 2025. https://www.axios.com/2025/02/28/rfk-kills-public-comment-health-policy
4. Executive Order 14892. Establishing the Make America Healthy Again Commission. Published February 13, 2025. Accessed March 4, 2025. https://www.whitehouse.gov/presidential-actions/2025/02/establishing-the-presidents-make-america-healthy-again-commission/
