Published November 1, 2024
On November 1, 2024, EPPC scholars Eric Kniffin and Rachel Morrison submitted a public comment opposing an interim final rule (IFR) by the U.S. Department of Health and Human Services (HHS). In the IFR, HHS proposed to adopt model guidance from the Office of Management and Budget (OMB) that was finalized in April 2024, and also recodifies new nondiscrimination requirements for grant recipients that HHS had finalized in May 2024.
In 2023, EPPC scholars offered public comments on both the OMB Model Guidance and the HHS Grants Rule.
The first part of the EPPC scholars’ comment contends that the IFR “is procedurally deficient and therefore unlawful under the Administrative Procedure Act.”
To start, the EPPC scholars argue that HHS has not established a need for new regulations. HHS claims that the IFR is justified because the “Uniform Guidance promotes uniformity, understanding, compliance, and a uniform body of regulations across federal departments and agencies.” Yet, as Kniffin and Morrison argued in the comment, these broad and unsubstantiated claims “do not satisfy HHS’s obligations to engage in reasoned decision-making.”
The comment also pushes back on HHS’s claim that it had “good cause” to sidestep the normal notice and comment process and make these regulations effective immediately:
IFRs short circuit the democratic public notice and comment rulemaking process required by the Administrative Procedures Act (APA). As such, IFRs are not commonly issued, and exceptions to the normal rulemaking process should not be used lightly. Here, HHS’s rationale falls far short of the good cause threshold to issue an IFR.
Finally, the EPPC scholars express concern that HHS is attempting to deny the public an opportunity to comment on the substance of the IDF. HHS said it “will not respond to comments” that concern the substance of the OMB and HHS rules and will only accept comments “regarding the plan and timeline for adopting the Uniform Guidance.”
HHS admits that ‘HHS itself did not seek and respond to these multiple rounds of comment,’ yet claims good cause to forego advance notice and public comment because OMB received public input and comments on its 2020 and 2023 proposed guidance …
But what HHS and other agencies have done in the past on other rules (even if similar) is not an explanation for why there is good cause to forego public notice and comment on this rule.
As the scholars’ comment notes, OMB’s and HHS’s final rules did not address all the concerns that they and others had raised in public comments. Additionally, some of the agencies’ changes in the final rules raised additional concerns that the public has not yet had the opportunity to comment on.
After outlining the IFR’s many procedural shortcomings, the second part of the EPPC scholars’ comment argues that HHS is, once again, unlawfully “reinterpreting” sex discrimination law to advance the Biden-Harris administration’s pro-gender ideology agenda.
The scholars explain why HHS’s interpretation of the Supreme Court’s Bostock case (which concluded that discrimination on the basis of gender identity is necessarily discrimination on the basis of sex) is implausible on its face. The EPPC scholars also argue that HHS’s claims do not take into account recent caselaw interpreting Bostock and Congress’s refusal to expand non-discrimination law:
Congress has not made sexual orientation or gender identity protected bases under civil rights laws, nor has it redefined sex discrimination prohibitions to extend to sexual orientation and gender identity despite multiple unsuccessful attempts to do so. Yet HHS is attempting rewrite sex discrimination laws passed by elective representatives in Congress to include sexual orientation and gender identity discrimination. This exceeds HHS’s Constitutional or statutory authority.
The public comment concludes with a list of questions that HHS should address before issuing a final rule.
The scholars urged HHS to withdraw its interim final rule.
Other organizations also submitted comments on HHS’s interim final rule, including:
Eric Kniffin is a fellow at the Ethics and Public Policy Center, where he works on a range of initiatives to protect and strengthen religious liberty as part of EPPC’s HHS Accountability Project.
