RFK Jr. move to kill public comment roils providers

State of play: The transparency policy Kennedy is undoing dates to 1971 and requires public comment for HHS rules on public property, loans, grants, public benefits or contracts.

• It layered new obligations on HHS beyond those laid out in statute, requiring the department to notify health providers, patient advocates and other stakeholders when it was making policy changes and seek their comment before finalizing plans, with minimal exceptions.

Kennedy now says the policy imposes extra requirements and is "contrary to the efficient operation of the department."

• "The department will continue to follow notice and comment rulemaking procedures in all instances in which it is required to do so by the statutory text of the [Administrative Procedure Act]," the notice says.

The broadly worded change could apply to a slew of programs including NIH grants and Medicaid policy, legal experts say.

• For example, skipping public comment could make it easier for HHS to require Medicaid recipients to work in order to receive benefits, CBS reported.
• The change does not apply to Medicare and its myriad payment rules, because that program has its own legal requirements for soliciting public comments.

What they're saying: Kennedy's move drew immediate blowback from health providers and advocates.

• "The practice, delivery, and regulation of medicine is incredibly complex," Stella Dantas, president of the American College of Obstetricians and Gynecologists, said in a statement.
• "The experiences of patients, clinicians, administrators, and other stakeholders across medicine must be taken into account in order to avoid unintended outcomes."
• Jerome Adams, President Trump's first-term surgeon general, posted on X that he saw a fundamental conflict between the policy change and calls from Trump and Kennedy supporters for the government to listen to the people.
• "Are you really for transparency?" he wrote.

Flash back: HHS tried to rescind its policy of collecting extra public comment beyond the statutory requirement in 1980, Stat reported. After significant backlash from lawmakers, HHS eventually scrapped the plan.

• Some Democratic lawmakers have started to raise alarm about Kennedy's comment policy rollback, suggesting it's aimed at stamping out opposing views.
• "Despite this clear attempt to block dissent, including from health experts, the American people will not be silenced and they will hold HHS accountable for harmful regulations," Rep. Raúl Grijalva (D-Ariz.) said in a statement Friday.

Zoom out: NIH grant recipients sued HHS earlier this month for significantly reducing funding for research overhead and administrative costs without a public comment period.

• Friday's notice may invalidate that legal argument, though the case has other arguments to stand on, said Daniel Graham, a partner at McDermott Will & Emery and leader of their government contracts group.

What we're watching: Without advance notice, it may be harder for health organizations to plan for changes or to know if they're following federal regulations.

• And the torrent of litigation against the Trump administration's health policy changes will continue, and maybe even increase. When a policy is changed without collecting sufficient stakeholder comments, it can be challenged in court, said Dan Jarcho, a partner at law firm Alston & Bird.
• "There's a good possibility that this policy change will trigger more litigation against HHS," Jarcho said.