Modern Healthcare cited the Health Law Advisor blog post, “HHS Reverses Its Longstanding Policy and Limits Public Participation in Rulemaking,” co-authored by attorneys Kate Gallin Heffernan, Robert E. Wanerman, and Lesley R. Yeung, in “Old Laws, Supreme Court May Stymie HHS Plan to Fast-Track Policy,” by Bridget Early. (Read the full version – subscription required.)
Following is an excerpt:
The Health and Human Services Department aims to fast-track policymaking by scrapping procedures it followed for more than 50 years to collect public feedback on government decisions. The Supreme Court and several federal laws may stand in the way. …
'Good cause' exemption
Whether the new HHS policy holds up against potential legal challenges may rest on a different standard known as the good cause exception to the Administrative Procedures Act, which the department cited in its announcement last month. Courts have permitted agencies to forego notice-and-comment under certain circumstances.
The good cause exception has been interpreted narrowly, three attorneys from the law firm Epstein Becker Green concluded in a policy brief published March 5. Courts have upheld "good cause" exceptions under circumstances such as natural disasters and infectious disease outbreaks but rejected "good cause" arguments based on statutory deadlines or economic reasons, the lawyers wrote.
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