Biden HHS Postpones Trump’s Retrospective Review of Agency Rules

The Health and Human Services Department Thursday postponed a last-minute Trump administration rule that would have caused health regulations to expire if they weren’t reviewed every 10 years.

The HHS released a final rule (RIN 0991-AC24) that delays the Trump rule until Sept. 22. The Trump rule was published in the Federal Register on Jan. 19, 2021, one day before President Joe Biden took office, and its effective date had already been pushed back once before to March 22.

Under the rule, the HHS would have five years to assess existing regulations that are more than 10 years old, and the department could have extended that deadline one time per regulation, for up to a year. Before the rule, regulations weren’t subject to such a review requirement.

The Trump final rule exempted certain Food and Drug Administration regulations and annual Affordable Care Act rules, in addition to procedural rules, regulations issued jointly with other agencies, and regulations around internal management.

The Biden administration on March 18, 2021, had initially delayed the effective date for the rule for one year—from March 19, 2021, until March 22, 2022. The latest notice pushes back the date for another six months.

An array of health-care and public interest groups had challenged the rule in U.S. District Court in California’s Northern District on March 9, saying its impact is “vast and unprecedented” and would terminate more than 17,000 health regulations by 2026. The plaintiffs—which include Santa Clara County, Calif.; the Center for Science in the Public Interest; and the American Lung Association—say it creates “incalculable costs and chaos” by placing highly technical rules on a rescission list.

The HHS in October 2021 had proposed to withdraw or repeal the rule, but decided that “a postponement will permit HHS to continue and complete its review of the SUNSET final rule in light of the claims raised in the litigation,” according to the Thursday notice.

The proposal to withdraw or repeal had said that “the rule is expansive in scope and impact, faced considerable opposition from stakeholders (and very little support), and lacked a public health or welfare rationale for expediting rulemaking.”

—With assistance from Brent Bierman