HHS on Friday finalized a rule requiring the department to review all of its regulations every 10 years to determine if they’re still making the desired impact. Any rule that is not assessed will expire.
Additionally, the Trump administration said current rules older than a decade must be checked in the next five years, an extension from a two-year deadline in the proposed rule.
The review process won’t apply to food and drug regulations or payment rules, according to the agency.
“Every one of our regulations is effectively a law,” HHS Chief of Staff Brian Harrison said on a press call Friday. “It was passed by no House, passed by no Senate and signed by no president.”
The rule subjects most regulations to a two-step review. HHS would first decide whether a regulation has a significant economic impact on a large number of small entities. If it does, the department will review whether the rule is still needed; complaints about it; its complexity; if it duplicates or conflicts with other regulations; and whether the agency should rework or withdraw it because of technological, economic or legal changes.
The federal government has finalized over 200,000 regulations from 1976 to 2018 while Congress passed 10,000 laws during that time, many of which haven’t been reviewed, according to Harrison. He called the review process “the boldest and most significant regulatory reform effort ever undertaken by the federal government.”
But some healthcare groups have called the process duplicative and burdensome, noting that the Administrative Procedures Act already requires review and comments on proposed regulations. In particular, the Medicaid and CHIP Payment and Access Commission said the Trump administration plan will create confusion for managed care plans, states, providers and beneficiaries and force inexperienced staff to assess rules that may be essential to some HHS programs without understanding their impact.
“The new requirements will create additional unnecessary work that will distract the department and CMS from the critical roles they play in our healthcare system, Medicaid and CHIP amid the pandemic and its resulting economic challenges,” MACPAC wrote in its comment on the proposed rule.
Harrison maintained that the review process would better allow the department to consider the economic impact of its regulations, calling the department’s predictions of future costs for rules “largely, if not completely, theoretical.”
“We expect massive, massive benefits to the American people that would dwarf any resource requirements imposed by this rule,” he said.
When the Trump administration proposed the review process, HHS estimated it would cost $10 to $26 million to carry out the policy change over the next 10 years.
The rule is part of President Donald Trump’s broader deregulatory agenda. Trump signed an executive order in January 2017, directing federal agencies to take two deregulatory steps for each regulation they create. According to the White House budget office, HHS took 46 deregulatory actions and 18 regulatory actions from 2017 to 2019.