HHS Proposes to Reduce Public Comment Opportunities for Healthcare Regulations

The U.S. Department of Health and Human Services (HHS) has recently made a declaration to cease the public comment period for their proposed regulations.

By stopping the practice of gathering input from affected parties, which dates back to 1971, HHS is enacting a major change. HHS now has the power to eliminate public participation in regulatory processes when the Department considers public engagement to be impracticable or unnecessary – or if it opposes public interest.

Streamlining the decision-making process may offer administrative benefits, yet excluding affected parties from regulatory procedures threatens both transparency and public health policy integrity.

How the Public Comment Process Works Now

Federal agencies, including HHS, have to publish their proposed rules in the Federal Register under the Administrative Procedure Act (APA) and provide a public feedback period, which usually lasts between 30 to 60 days. This procedure functions as a protective measure that involves affected individuals in policy creation, rather than serving as merely a bureaucratic task.

The public plays a critical role in healthcare policy discussions, since these policies impact Medicare coverage standards, Medicaid eligibility requirements, drug pricing mechanisms, hospital financial support systems, and insurance regulation frameworks. Throughout history, public feedback has proven instrumental in adjusting or halting regulations that might have led to unexpected adverse outcomes.

Does This Proposal Present a Violation of the Social Security Act?

A significant concern regarding this proposal is its potential violation of the Social Security Act (SSA), which mandates public comment on specific healthcare regulations.

Here’s why:

The Social Security Act establishes Section 1871[1], which can be found in Title 42 of the United States Code. Section 1871 of the Social Security Act (42 U.S.C. 1395hh) mandates that HHS must publish any Medicare or Medicaid regulation before finalizing it and provide at least 60 days for public comment. This process requires all significant policy changes impacting millions of people in America to undergo thorough examination.

Under Section 1115 of the Social Security Act[2] (42 U.S.C. 1315), the law requires a public notice-and-comment procedure for experimental pilot and demonstration projects for Medicaid and State Children’s Health Insurance Program (SCHIP). The necessity of public input stems from the potential direct effects these projects have on coverage and benefits.

Patient advocacy groups, healthcare organizations, and state governments might challenge HHS legally if they decide to eliminate or reduce public comment periods, since this action violates mandatory legal requirements. Legal precedents show that courts will rule against agencies that attempt to bypass required public comment periods[3],[4],[5],[6] which means that this proposal may face substantial legal issues.

The Dangers of Excluding Public Comment: Loss of Transparency and Public Trust

The removal of public comment periods leads to a substantial loss of transparency in the policymaking process. Through public participation, regulatory decisions have maintained their fairness and democratic integrity for many years. The comment period allows stakeholders such as healthcare providers and patients to examine proposed regulations and then express their concerns while making suggestions for changes. If this mechanism does not exist, HHS will appear to make decisions in secret, which could cause public doubts about the true intent behind new policies.

Exclusion from decision-making processes leads the public to lose trust in the institution. When the government lacks transparency, it creates suspicion, undermining efforts to gain public support for health policies. The decrease in trust towards HHS, which manages essential programs such as Medicare and Medicaid, may negatively impact policy adherence and public health results.

The possibility of regulatory overreach exists, alongside the potential for making poor decisions.

Public comments function as an essential mechanism to restrain excessive regulation. The collection of diverse viewpoints enables policymakers to uncover possible flaws in their regulations and subsequently improve their decisions. HHS may implement flawed and oppressive regulations without expert feedback and stakeholder involvement.

Alterations to Medicaid eligibility standards and Medicare payment rules might produce unexpected effects for millions of U.S. citizens. Healthcare providers share critical insights into regulatory impacts on care delivery, while patient advocacy groups present concerns from affected individuals. HHS faces potential policy failures or unintended negative outcomes by deciding not to listen to the perspectives of healthcare providers and patient advocacy groups.

Legal and Ethical Concerns

Removing public comment periods can also lead to legal disputes. New regulations must be subjected to public input according to federal laws, which govern the process for many government agencies. Affected parties can initiate legal action against agencies that bypass public input procedures, because such actions infringe upon established administrative law principles.

The practice of silencing stakeholder input extends beyond legal issues to raise significant ethical questions. Public health policies require guidance from individuals who will face the greatest impact to ensure equitable and just decision-making. Lacking a structured system to collect feedback leaves marginalized communities vulnerable to policy decisions that overlook their specific needs.

Negative Impact on Public Health Programs

HHS manages numerous programs that cover infectious disease control initiatives, substance abuse prevention efforts, and public health preparedness measures. Healthcare professionals, researchers, and community organizations provide essential input to help make sure program regulations stay effective and practical.

Throughout the COVID-19 pandemic, public comments proved essential for developing vaccine distribution plans, healthcare worker protection measures, and telemedicine expansion strategies. The risk of mistakes would climb and jeopardize lives if policies were made without stakeholder participation.

Eliminating public comment periods presents substantial risks, yet offers several benefits that deserve examination.

Increased Efficiency in Decision-Making

Greater efficiency in regulatory processes serves as the main reason behind the proposal to remove public comment periods. The process of collecting and analyzing public comments consumes time and consequently postpones the execution of critical policies. HHS can speed up decision-making processes and implement regulations faster by eliminating this stage. The ability to act quickly becomes essential during emergency events such as public health emergencies, because immediate steps can help reduce damage.

Reduced Influence of Special Interest Groups

Well-funded industry groups frequently dominate public comment periods because they have sufficient resources to generate massive response efforts. The expertise provided by these groups proves essential, but can also lead to the underrepresentation of individual citizen concerns and smaller organizations. HHS can create less lobby-influenced regulations by avoiding the public comment period, which could result in fairer policy decisions.

Simplification of the Regulatory Process

Many criticize government regulations because they find them too complicated and burdensome. Although the public comment procedure offers essential input, it sometimes adds complexity to policymaking because it brings diverse and conflicting perspectives that hinder reaching an agreement. The simplification of HHS regulatory processes could lead to the creation of policies that are easier to enforce and implement because they will be straightforward and clear.

Conclusion

The decision to suspend public comment periods is more than just an administrative change – it’s a fundamental shift in how public health policies are shaped. While there are arguments in favor of a more streamlined process, the risks of excluding affected voices far outweigh the potential benefits.

Public engagement is not just a bureaucratic hoop to jump through – it’s an essential part of democracy, ensuring that policies reflect the realities of those they impact. Without it, regulations risk being met with backlash, legal hurdles, and unintended consequences that could have been prevented with proper input.

Instead of eliminating public input altogether, HHS should explore alternatives that maintain efficiency while preserving transparency. Shortened comment periods for urgent matters, targeted consultations with key stakeholders, and digital forums for feedback could help strike the right balance.

At the core of healthcare policymaking is the responsibility to serve the public. When such policies are crafted without input from the very people they affect, the system fails its purpose. Excluding public voices from the regulatory process is not just a mistake – it’s a disservice to the principles of fairness, accountability, and good governance.

[1] Social Security Act § 1871, 42 U.S.C. § 1395hh (requiring the Secretary of Health and Human Services to promulgate regulations through notice-and-comment rulemaking unless an exception applies).

[2] See Social Security Act § 1115, 42 U.S.C. § 1315 (authorizing the Secretary of Health and Human Services to waive certain Medicaid and CHIP requirements for experimental, pilot, or demonstration projects).

[3] Chrysler Corp. v. Brown, 441 U.S. 281 (1979) (holding that agency action lacking proper notice-and-comment rulemaking is invalid under the Administrative Procedure Act).

[4] United States v. Nova Scotia Food Products Corp., 568 F.2d 240, 252 (2d Cir. 1977) (finding that an agency’s failure to adequately consider and respond to public comments rendered its rule legally deficient).

[5] Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 553 (1978) (reaffirming that agencies must comply with notice-and-comment procedures under the Administrative Procedure Act).

[6] Texas v. United States, 809 F.3d 134, 178 (5th Cir. 2015) (blocking an agency policy change due to failure to comply with the Administrative Procedure Act’s notice-and-comment requirement).