The End of the Richardson Waiver: Will CMS Rulemaking Go Unchecked?

Written by: Brendon De Souza, Esq., MSPA

Earlier this month, Robert F. Kennedy, Jr., the newly confirmed Secretary of the Department of Health and Human Services (HHS), rescinded decades-long policy, referred to as the “Richardson Waiver”, wherein HHS had historically agreed to comply with the public participation rulemaking procedures outlined within the Administrative Procedures Act (APA). Moving forward, will CMS no longer seek public input from Medicare Secondary Payer (MSP) stakeholders prior to promulgating expansive regulations?

History

The United States Congress passed the APA in 1946 for purposes of establishing how federal administrative agencies may create rules and regulations. Transparency and accountability were core concerns, which is why the APA generally requires federal agencies to publish notice of proposed rulemaking in the Federal Register for public comment prior to promulgation. The APA provides a “public participation” exemption for “matter(s) relating to agency management or personnel or to public property, loans, grants, benefits, or contracts”[1] [emphasis added]. As a result of this statutory “public participation” exemption, HHS was effectively under no obligation to comply with the APA’s notice and comment procedural rules.

In 1971, however, HHS issued a policy statement voluntarily agreeing to “opt-in” to the APA’s rules.[2] Since that time, federal agencies within HHS, including the Centers for Medicare & Medicaid Services (CMS), have followed this policy through providing advanced notice and permitting public comment on proposed rulemaking, which was most recently showcased within the MSP community in CMS’ February 2020 Proposed Rule for civil money penalties. The MSP community benefited tremendously from this open and transparent policy, and we saw CMS refine its Final Rule to simplify civil money penalty triggers and confirm a clearer statute of limitations as a result of the public feedback.

It appears HHS has now decisively terminated this important notice and comment rulemaking policy, citing undue costs, inefficiency, and concerns of an inability to remain flexible in adapting to legal and policy mandates should the “Richardson Waiver” remain in effect. So, what does this mean for MSP compliance — will CMS no longer seek public input from MSP stakeholders prior to promulgating expansive regulations? Not exactly.

Sanderson Firm Commentary 

Even though the default “Richardson Waiver” is no longer in effect, RFK, Jr.’s March 2025 memorandum confirms that HHS has “discretion to apply notice and comment procedures to these matters but are not required to do so, except as otherwise required by law” [emphasis added]. In other words, the “Richardson Waiver” policy recission is not a total ban on advance notice and public comment for CMS rulemaking.

Naturally, concerns have arisen regarding CMS’ new ability to potentially operate “unchecked” with respect to MSP rulemaking, but let us recall that the framers of the Constitution included a system of checks and balances. In the coming months, HHS may very well face legal opposition to the extent that any of its subagencies attempt to pass rulemaking without public notice and comment. The most obvious legal challenge could entail a lawsuit by an interested party challenging HHS’ interpretation of the APA, perhaps relying on the recently decided Loper Bright Enterprises[3] Supreme Court case as a springboard example that agency interpretation may be readily “checked” by the judicial branch.

Fortunately for MSP community stakeholders, there are currently no known significant CMS initiatives which would otherwise have been ripe for public notice and comment. CMS and MSP community stakeholders are largely focused on Section 111 reporting compliance given the emergence of civil money penalty exposure. By the time CMS shifts focus to newer, larger MSP initiatives potentially implicating advanced notice and public comment, HHS’ interpretation of the APA may already be decided.

Sanderson Firm will continue to monitor this development for updates. If you have a question regarding RFK, Jr.’s memorandum, please contact us.

[1] 5 U.S.C. 553(a)(2); although the term “benefits” is not defined, federal case law clearly demonstrates that “benefits” encompasses Medicare benefits / Medicare regulations. See Greater Cleveland Hosp. Asso. Grp. Appeal v. Schweiker, 599 F. Supp. 1000 (N.D. Ohio 1984).

[2] This is referred to as the “Richardson Waiver”, aptly named after the then-current HHS Secretary, Elliot Richardson. The “Richardson Waiver” was not absolute, and HHS retained the ability to decline public participation if doing so would be impracticable, unnecessary, or contrary to public interest.

[3] Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).