Recent actions by HHS undermine the promises of transparency made by Robert F. Kennedy, Jr.
During his confirmation hearings, Robert F. Kennedy, Jr., now the Secretary of the Department of Health and Human Services (HHS), said that his approach to administration at HHS would focus on transparency. Similarly, during remarks at a White House press conference, he said that he plans “radical transparency.” But several of his actions, though maybe legal, reduce transparency.
On February 26, 2025, the Advisory Committee on Immunization Practices had a routine two-day meeting scheduled. The committee’s roles include recommending vaccines, creating a recommended vaccine schedule for adults and children, and overseeing vaccine safety. At this meeting, the committee was due to vote on whether to recommend a few newly licensed vaccines. Normally, a docket for commenting is created before the meeting, and members of the public are given an opportunity to comment in writing, with some also receiving oral commenting slots. The committee meeting is held in public, as required by the Federal Advisory Committee Act. This time, no docket was put up, indicating that the meeting might not be held.
Five days before the first day of the committee’s meeting, the meeting was postponed. Officially, the reason given was “to accommodate public comment in advance of the meeting.” It is within the authority of the Centers for Disease Control (CDC) to schedule that commenting period but, as of now, none is scheduled. A new meeting was announced for April 15 and 16, but no explanation for the change has been given, no agenda is up yet, and it is not clear what other changes will be made—or if the meeting will happen. Less than a week later, the Food and Drug Administration (FDA) similarly canceled a scheduled meeting of the Vaccines and Related Biological Products Advisory Committee.
Both of these meetings would have served as public windows into policymaking around vaccines at the CDC and FDA. They would have included lengthy presentations that are broadcast online, penetrating questions from the experts on the committees, and public participation. Eliminating these meetings reduces transparency. Statements by Kennedy suggest that he reportedly intended to remove some members of the Advisory Committee on Immunization Practices due to perceived conflicts of interests, but nothing was said publicly.
Later, on March 3, 2025, HHS rescinded its 1971 Policy on Public Participation in Rule Making, known as the Richardson Waiver. The Administrative Procedure Act (APA) exempts from its notice-and-comment requirements, among other things, “any matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.” But, in 1969, the Administrative Conference of the United States (ACUS) recommended eliminating this exemption “to assure that Federal agencies will have the benefit of the information and opinion that can be supplied by persons whom regulations will affect.” ACUS encouraged agencies to “utilize their existing powers to employ the rulemaking procedures provided by the APA, whenever appropriate, without awaiting a legislative command to do so,” but the APA remained unchanged.
Many agencies followed ACUS’s advice, adopting voluntary waivers of the exemption, and, in 1971, HHS did the same in the Richardson Waiver. HHS issued the Richardson Waiver without notice and comment, as it was allowed to do under the APA’s exemption of statements of policy from notice-and-comment procedures, and it rescinded it without using those procedures, as it was allowed to do under the same exemption.
In rescinding the Richardson Waiver, HHS claimed that “the policy waiving the statutory exemption for rules relating to public property, loans, grants, benefits, or contracts is contrary to the clear text of the APA and imposes on the Department obligations beyond the maximum procedural requirements specified in the APA,” referencing the Supreme Court’s 2015 decision in Perez v. Mortgage Bankers Association. The agency went on to say:
The text of the APA recognizes that it is necessary and appropriate to issue rules relating to agency management or personnel or to public property, loans, grants, benefits, or contracts without notice and comment procedures. It also is contrary to the clear text of the APA to use the good cause exception “sparingly.” The extra-statutory obligations of the Richardson Waiver 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. Effective immediately, the Richardson Waiver is rescinded and is no longer the policy of the Department.
It is within the HHS’s legal authority to rescind the waiver. But HHS’s reasoning for doing so is deeply flawed and may fail under the APA’s arbitrary and capricious standard. Perez did not suggest or imply that agencies adopting additional procedures are contravening the APA. In fact, the Court in Perez says, quoting Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council that “agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.” In other words, Perez forbade courts from adding procedures to the APA but permitted agencies to do so. Furthermore, courts have stated consistently that the APA exceptions from notice-and-comment rulemaking should be “narrowly construed and only reluctantly countenanced.” There is no specific text in the APA to counter that, and the HHS’s rescission did not point to any. The rescission, which is only one page, is also very short on supporting evidence for the alleged efficiency gains in overturning this long-standing policy.
Observers are concerned that the removal of the policy will lead to less public participation and foster less transparency in rulemaking. HHS still needs to publish rules that fall under the APA exemption at issue using the public disclosure requirements of the APA in the Freedom of Information Act, but it no longer has to publish a notice before acting or give an opportunity for comments. The result will be less warning, less opportunity for public participation, and a real risk that stakeholders and the public will only know of policies after the fact, as a fait accompli.
In 2025, HHS has $2.40 trillion dollars of budgetary resources, or 20.6 percent of the U.S. federal budget, available. The grants HHS distributes include those funding very large immunization support programs, which cover all U.S. states and territories and multiple large cities—although that funding has become more complex in recent years. In addition, HHS funds a large range of groups that provide crucial health services. The ability to change the rules and policies under which funding is given without transparency before the fact or public participation can allow Kennedy to undermine immunization programs and channel grants from public health groups to anti-vaccine groups—not completely under the radar but with less oversight.
The policy is likely to affect most areas of regulation under HHS’s purview, including FDA and Medicare/Medicaid, but it is less clear what the impact of the policy will be on those areas, as opposed to the more glaring issues explored here.
Kennedy’s CDC did recently put up a new page on the agency’s website on the conflicts of interest disclosed by members of the Advisory Committee on Immunization Practices, which may be seen as increasing transparency. However, that effort is insufficient; that page simply has the existing disclosures that members provide in every meeting in one place. Even with this new page, cancelling—or postponing to an unknown date—public meetings and no longer providing notice of proposed regulations are directly in tension with the transparency promised.
