The Health and Human Services Department has proposed eliminating requirements that it tell the public and solicit their comments every time it wants to change regulations.
In a Federal Register notice, HHS said that "public comment serves an important purpose" and in most cases would still be used, but that in some instances it has delayed prompt alteration of important programs.
Programs that could be affected by the change include Social Security, Medicare, Medicaid and various formula and grant programs. The only HHS agency that would not be covered is the Food and Drug Administration, which has separate rule-making procedures.
The Administrative Procedure Act, which establishes the general procedure agencies must follow when they issue rules, requires that the public be informed in advance when an agency wants to issue new regulations or change old ones, and then be given a chance to comment.
However, the act exempts programs involving public property, loans, grants, benefits and contracts. That exemption covers most of the programs administered by HHS, according to department attorney Terry Coleman.
Health, Education and Welfare Secretary Elliot L. Richardson officially waived that exemption for the department in 1970. HHS, HEW's successor, would like to reinstate it.
In the June 22 Federal Register notice, HHS proposed to skip the "notice and comments" procedure when delay in "issuing final rules would prevent the implementation of a beneficial program or when the rules are so technical and minor in nature that public comment is not anticipated."
HHS is taking comments on its proposal until Aug. 23, after which it will make a final decision.
"I'm appalled by this proposal," said Bonnie Milstein, head of the health-care task force of the Leadership Conference on Civil Rights. She said it ignores the legislative history of the Administrative Procedure Act, 12 years of rulemaking and court cases on this subject.
"What the HHS proposal is saying is 'we know what's best for you, so there is really no need to get comments from the outside world on reductions in Social Security benefits, on how to define disability or how to define 'handicapped,' " said Milstein.
"They're trying to limit people's information on what they are going to do to them," said Eileen Sweeney of the National Senior Citizens' Law Center. "All the people who currently benefit from the programs HHS administers stand to lose--elderly people, children, the disabled."
Jim Weill, legal director of the Children's Defense Fund, said that without public oversight "the drafter feels freer to play fast and loose with both the law and reason." And Milstein of the Leadership Conference said the proposal, if adopted as a final rule, would allow HHS to slip controversial changes through.
But HHS officials denied that is the purpose of the proposal. On "Today" (NBC, WRC) yesterday, HHS Secretary Richard S. Schweiker said, "We don't intend to use it except in very rare instances."
HHS attorney Coleman said there have been "several occasions" during the past 12 years when the department needed to move more quickly than the "notice and comment" period allowed. He said it became a particular problem last year when Congress directed HHS to make changes in the Aid to Families with Dependent Children program by Oct. 1, 1981.
Because the law was not signed until Aug. 13, HHS had about seven weeks to act. A federal district judge ruled the changes invalid because HHS hadn't allowed enough time for comments; an appeals judge later let the alterations take effect.