Health

HHS proposes nixing controversial Trump-era ‘sunset’ rule due to massive resources needed for compliance

The Department of Health and Human Services (HHS) wants to pull a controversial Trump-era rule that would have required the agency to fully review every regulation it has issued.

HHS issued a proposed rule Thursday that would pull the rule passed Jan. 19 by the Trump administration, one day before President Joe Biden was sworn in. HHS earlier this year delayed the implementation of the rule from March until 2022.

The rule requires HHS to examine every regulation to determine whether it is still applicable or needs to be amended or rescinded. Any rule that doesn’t get reviewed within five years will be pulled.

HHS argued that the rule is unworkable and would have strained agency resources.

“Based on a reanalysis of the regulatory impact of the rule, we now believe that the rule rested on a flawed understanding of the resources required for this undertaking, which implicates the likelihood that HHS regulations would expire if the final rule were to go into effect,” the proposed rule said. “That in turn will require the department to make resource allocation decisions which could impede the department’s routine operations.”

RELATED: Lawsuit claims HHS sunset rule is a ‘ticking timebomb’ for agency

The Trump administration argued that the rule will ensure burdensome or obsolete regulations are taken off the books.

The initial proposed rule gave HHS two years to review every regulation that was more than 10 years old. The final rule, though, extended that deadline to five years. Any new rule would have to be reviewed 10 years after its publication date or else it would be nixed.

But HHS said Thursday that it took an extensive review of the regulation after a lawsuit from several healthcare groups including the American Lung Association, which argued it would cause massive chaos at the agency.

HHS said in the proposed rule that it already conducts retrospective reviews and it is “open to feedback regarding how to improve these existing processes.” The agency also argued that the Trump administration made several “procedural shortcuts” in its rule-making process that include not considering comments from stakeholders.

The final rule was “issued on an unusually expedited timeline of less than three months for a rule of this significance,” HHS said.

HHS said the Trump administration miscalculated the extent of the resources needed to comply with the rule.

“In particular, we now believe that HHS underestimated the costs of complying with the rule at least by a factor of four,” the agency said. “Secondly, and relatedly, it assumed that regulations would not simply expire.”

Because HHS would have to prioritize reviews of rules about to expire, that would pull resources from “many other department programs and missions,” the rule said.

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