Health and Human Services No Longer Applying Richardson Waiver

By P. Czuprynski

On March 3, 2025, the U.S. Department of Health and Human Services (HHS) published a policy statement advising that HHS will no longer apply the “Richardson Waiver” to their procedural rule making requirements for rules and regulations.

The Richardson Waiver created an obligation for Medicare to follow notice and comment procedures for rules and regulations as outlined in the Administrative Procedure Act (APA) and that relate to public property, loans, grants, benefits, or contracts.

HHS was also instructed under this waiver to apply the “good cause” exemption “sparingly”. Good cause in this circumstance is defined as procedures that the agency finds “impractical, unnecessary, or contrary to the public interest”.

It is unclear how Medicare will apply this waiver to any rules and regulations governing Medicare Secondary Payer (MSP) issues. Medicare’s rules and regulations associated with MSP issues do not appear to touch on the categories identified by the waiver. However, Medicare may argue that there is good cause to eliminate notice and comment periods on changes being made to rules and regulations.

If Medicare makes an argument that notice and comment periods do not apply, there may be ways to challenge those findings under the Administrative Procedures Act. Considering the Loper Bright v. Raimondo decision that identifies Medicare should not be given deference in their interpretations of regulations and statutes, there may be argument that the findings by Medicare would be arbitrary, capricious, and not in accordance with law.

Our team will continue to keep you updated as information becomes available on this topic.

If you have any questions about the HHS policy statement, please contact our Settlement Consulting team at [email protected].