Hawaii Attorney General Clare E. Connors joined a coalition of attorneys general in submitting comments opposing the U.S. Department of Health & Human Services’ (HHS) misguided proposal to automatically “sunset” any HHS regulation that the agency does not review within a short time frame. The rule is an unprecedented and dangerous attempt by the Trump Administration to impede the incoming Biden Administration while the country grapples with the ongoing COVID-19 pandemic. The rule impacts all of HHS’s regulations, putting in jeopardy the Department’s programs and services nationwide. Under the rule, these regulations could abruptly end if not reviewed in the short time frame allotted, threatening critical programs like Medicaid, food safety, and medical and pharmaceutical research. The unlawful rule gives the agency just two years to review the regulations, unnecessarily hamstringing the incoming Administration.
“The rule is legally questionable and unrelated to the Act it purports to implement,” said Attorney General Connors. “Furthermore, the rule is arbitrary and may have dangerous impacts to programs that are critical to the health, safety, and welfare of our community.”
In the December 4th letter, the coalition of attorneys general argue this deregulation attempt by the Trump Administration will mire HHS in red tape during a global pandemic when the country needs the agency’s resources most, making it nearly impossible for the new Administration to enact new pandemic-related regulations. In addition, the drastic scope of the rule will put trillions of dollars in federal funding on which the states rely at risk.
The coalition argues the proposed rule:
•Is unprecedented and dramatic in scope and poses a threat to the States’ healthcare systems and as a result, the health and safety of the states’ residents;
•Is legally questionable since it claims to implement the Regulatory Flexibility Act(RFA), which Congress enacted to minimize the impact regulations have on small entities with limited resources. Instead, the rule would add expiration dates to all HHS regulations. Further, HHS lacks the legal authority for such action;
•Will drain agency resources and create significant uncertainty for state programsthat would have to deal with the consequences if the federal regulations they relyon suddenly expired; and
•Is deeply problematic given it was proposed just a month before a new presidenttakes office and while the country continues to weather the pandemic, and givesthe public only 30 days to comment, in spite of the fact that it impacts 18,000regulations.
In submitting the December 4th comment letter, Attorney General Connors joined the attorneys general of California, Colorado, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia. A copy of the comment letter is available here.
Under this measure, HHS will have two years to review any rules that are more than 10 years old. This change could negatively impact an enormous number of rules, as HHS estimates that roughly 2,480 rulemakings would need to be reviewed during the two-year window. Any rule that does not get reviewed will automatically expire. The measure is accused to sabotage efficient governance and will wreak havoc on Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP).
Regulation experts say they expect the Biden administration to immediately begin reversing the Trump administration’s deregulatory agenda after Inauguration. However, undoing any last minute regulations (using the Congressional Review Act) could be difficult if there is a divided Congress and reversing deregulations will depend on the specifics of the regulation and any potential for litigation.