Democrats Object to “Unconventional and Nontransparent” Review Process for Rule to Undermine Family Planning

 Sens. Murray, Harris, and Hassan, and Rep. Cummings question the Trump Administration’s review of a rule that would restrict women’s access to care and institute a domestic gag rule on health care providers.

Washington, D.C.—Today, Senator Patty Murray, the Ranking Member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, Senator Kamala Harris, Senator Maggie Hassan, and Rep. Elijah E. Cummings, the Chairman of the House Committee on Oversight and Reform, sent a letter to Office of Management and Budget (OMB) Director Mick Mulvaney and Office of Information and Regulatory Affairs (OIRA) Administrator Neomi Rao raising concerns with the Trump Administration’s process for setting new restrictions on eligibility for Title X funds and implementing a new gag rule that would interfere with providers’ ability to inform patients about their full range of reproductive care options.

“We have serious concerns about the regulatory review process of the Title X gag rule, which was submitted to the Office of Information and Regulatory Affairs (OIRA) for final review on February 7, 2019.  In particular, we are concerned that OIRA may soon approve the final rule for publication without ensuring that the Department of Health and Human Services (HHS) has conducted a comprehensive cost-benefit analysis of the rule’s potential economic and health impacts.  We have reason to believe that the final rule, if implemented, would undermine the federal Title X family planning program and threaten access to family planning services for millions of low-income women across the United States,” the Members wrote.

The Members pointed to troubling irregularities in the regulatory review process conducted by OIRA, including the unusually short review process for the draft rule and the reported denial of stakeholder meeting requests. They also called out the Department of Health and Human Services (HHS) for disregarding considerable health-related costs associated with the rule and failing to conduct a comprehensive regulatory impact analysis. 

The Members requested that OIRA return the rule to HHS so that it could conduct a comprehensive regulatory impact analysis and provide additional opportunity for public comment.

The text of the letter is below and the PDF is available HERE.

February 14, 2019

The Honorable Mick Mulvaney

Director

Office of Management and Budget

725 17th Street, N.W.

Washington, D.C.  20503

The Honorable Neomi Rao

Administrator

Office of Information and Regulatory Affairs

Office of Management and Budget

725 17th Street, N.W.

Washington, D.C.  20503

Dear Director Mulvaney and Administrator Rao:

We have serious concerns about the regulatory review process of the Title X gag rule, which was submitted to the Office of Information and Regulatory Affairs (OIRA) for final review on February 7, 2019.^[1]  In particular, we are concerned that OIRA may soon approve the final rule for publication without ensuring that the Department of Health and Human Services (HHS) has conducted a comprehensive cost-benefit analysis of the rule’s potential economic and health impacts.

We have reason to believe that the final rule, if implemented, would undermine the federal Title X family planning program and threaten access to family planning services for millions of low-income women across the United States.^[2]

The regulatory review process for this rule has been unconventional and nontransparent.  Last May, OIRA accepted the draft rule with no advanced public notice.  The proposed rule did not appear on either the Fall 2017 or Spring 2018 Regulatory Agenda, and—contrary to Executive Order 13563—there appeared to be no early outreach to stakeholders who would be impacted by the rule.^[3]  The average review period is 45 days, but this draft rule moved through OIRA in less than two weeks.  During this time—contrary to Executive Order 12866—OIRA reportedly denied stakeholder meeting requests and completed review of the proposed rule in just one week.^[4]

Despite the troubling irregularities in the regulatory review process, the Trump Administration rejected numerous requests to extend the proposed rule’s comment period to allow impacted stakeholders the opportunity to provide meaningful feedback.^[5]  Even within this comment period, numerous major medical associations, 15 governors, 200 Members of Congress, more than 20 state and local health departments, and more than 500,000 members of the public submitted comments opposing the rule on constitutional, legal, ethical, and policy grounds.^[6] 

Of particular concern, HHS declined to deem the Title X rule economically significant—completely disregarding the considerable health-related costs the rule would impose—and failed to conduct a comprehensive regulatory impact analysis.^[7]  As the Institute for Policy Integrity at New York University School of Law stated in its official comment:  

The Department failed to provide an adequate cost-benefit analysis in explanation of the proposed Title X revisions, omitting indirect transaction and health costs, and the distributional effects of these costs, thereby misrepresenting the true impacts of the rule to the public.^[8] 

HHS also failed to account for the rule’s negative health impacts on the disadvantaged populations served by Title X.^[9]  In its official comment, the American Medical Association stated that the rule would “dangerously interfere with the patient-physician relationship and conflict with physicians’ ethical obligations, exclude qualified providers, and jeopardize public health.”^[10]

Given the many concerns raised by experts and stakeholders, the significant public health and economic implications of the rule, and the troubling irregularities of the regulatory process, we request that OIRA return the rule to HHS so that it can perform a comprehensive regulatory impact analysis and provide stakeholders additional opportunity for public comment.  In addition, we request that you produce the following documents by February 28, 2019:

1. All documents, including internal and external analyses, concerning the expected economic and health impacts of the proposed Title X rule;

1. All communications among officials at the Office of Management and Budget, OIRA, HHS, the Centers for Medicare and Medicaid Services, or the Department of Justice concerning the regulatory review process for the proposed or final Title X rules; and

1. Any communications, excluding public comments, between officials at the Office of Management and Budget, OIRA, HHS, the Centers for Medicare and Medicaid Services, or the Department of Justice with outside entities concerning the proposed or final Title X rules .

The House Committee on Oversight and Reform is the principal oversight committee of the House of Representatives and has broad authority to investigate “any matter” at “any time” under House Rule X.

An attachment to this letter provides additional instructions for responding to this request. If you have any questions regarding this request, please contact Oversight Committee staff at (202) 225-5051 or Health, Education, Labor, and Pensions Committee staff at (202) 224-0767.

Thank you for your attention to this matter.

Sincerely,   

Elijah E. Cummings

Chairman

House Committee on Oversight and Reform

Patty Murray

Ranking Member

Senate Committee on Health, Education, Labor, and Pensions

Margaret Wood Hassan

United States Senator

Kamala D. Harris

United States Senator

Enclosure

cc:       The Honorable Alex M. Azar II, Secretary,

            U.S. Department of Health and Human Services

            The Honorable Jim Jordan, Ranking Member,

            House Committee on Oversight and Reform

            The Honorable Lamar Alexander, Chairman,

            Senate Committee on Health, Education, Labor, and Pensions

###