A change in policy at the Department of Health and Human Services set to be published today in the Federal Register could result in you, your fellow senior living providers and the associations that advocate on your behalf having fewer opportunities to weigh in on decisions at the agency.

HHS — the federal department that includes the Centers for Medicare & Medicaid Services, the Centers for Disease Control and Prevention, the Food and Drug Administration, the National Institutes of Health, the Administration for Community Living and its Administration on Aging, and more — plans to rescind its policy on public participation in many of its rule-making processes — specifically for “matters relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” A PDF of the notice, from HHS Secretary Robert F. Kennedy Jr., indicates that publication is set for today and that the new policy is “effective immediately.” So you appear to have no chance to influence the outcome of this decision.

LeadingAge President and CEO Katie Smith Sloan late Friday said that “the possibility that HHS under the Trump White House will eliminate or significantly scale back public comment … is truly troubling — a move we can only hope will not have the negative impact that we fear it might.” The association, she said, will be closely monitoring implementation of the new policy, as I’m sure other groups will be doing as well.

Understanding what is going on here requires a little background information.

Under the Administrative Procedure Act, or APA, agencies generally must notify the public when they are considering a new rule by publishing a notice of proposed rulemaking in the Federal Register and then providing an opportunity for the public to participate in the rulemaking by submitting data, views or arguments. Final rules often look different from the ones originally proposed at least in part because of such feedback.

The APA exempts “matters relating to agency management or personnel or to public property, loans, grants, benefits, or contracts” from the requirements, but the so-called Richardson Waiver, adopted in 1971, took that exemption away. Kennedy is rescinding the Richardson Waiver, saying that its “extra-statutory obligations … impose costs on the Department and the public, are contrary to the efficient operation of the Department, and impede the Department’s flexibility to adapt quickly to legal and policy mandates.”

Going forward, he said, “‘matters relating to agency management or personnel or to public property, loans, grants, benefits, or contracts’ are exempt from the notice and comment procedures … except as otherwise required by law.”

But citing LeadingAge’s nonprofit aging services provider membership, Sloan said the action “has the potential to significantly harm older adults and the nonprofit providers who serve them in a wide range of care settings and community types.” Opportunities to comment on proposed rules, she added, “are a critical and helpful part of the rulemaking process. It is vital to creating and revising effective, efficient, and practical policy.”

The APA, Kennedy said, also permits an agency to forgo the requirements related to the issuance of rules and regulations for “good cause” when the agency finds that the procedures are “impracticable, unnecessary, or contrary to the public interest.” The Richardson Waiver instructed HHS to use the “good cause” exception “sparingly,” but Kennedy said that advice is “contrary to the clear text of the APA.” So rescinding the waiver means that the “good cause” exception could be used often as a reason to skip allowing the public to comment on HHS matters.

HHS agencies and offices still can choose apply notice and comment procedures to matters previously covered by the Richardson Waiver, but they will not be required to do so, “except as otherwise required by law,” Kennedy said.

“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 APA,” he added. The new policy, however, could allow HHS to introduce more rules at their final stage.

One state provider association executive is predicting litigation. Senior living providers will want to stay alert to any changes that could affect their businesses, their employees and the residents in their care.

Lois A. Bowers is the editor of McKnight’s Senior Living. Read her other columns here. Follow her on X (formerly Twitter) at Lois_Bowers.