HHS lag in publicizing comments on faith rules could violate law

HHS has delayed posting comments on rules aimed at protecting individual providers who refuse care based on religious beliefs. Legal experts and industry stakeholders say that places a veil over what's supposed to be a transparent process and could put the agency in a legal bind.

"The agency could be vulnerable to a legal challenge on procedural grounds, which is something the agency is not likely to risk," Steven Balla, associate professor of political science, public policy and public administration at George Washington University.

On Tuesday, comments were due on the proposed rule. HHS received 72,000 comments. In the past, HHS has posted comments as they come in. But by Wednesday morning, only 1,700 comments were online and they were mostly from religious individuals who supported the rule. A few negative comments were posted from anonymous individuals. None were posted from healthcare industry stakeholders.

An HHS spokesperson did not return a request for comment.

Federal law requires releasing comments once HHS screens them for vulgar words and proprietary information, Balla said.

There is some wiggle room on whether they must be posted online, said Ronald Levin, a law professor at Washington University in St. Louis. Normally, all comments will be available on paper in the agency's rulemaking docket, Levin said. "So, there should be no issue of whether people can find out what the comments say, only an issue of how much effort they will have to expend in order to find out."

Balla said the high volume of comments received may be delaying their release.

But "this is a uniquely lawless administration; it's not like other Republican ones I've seen," said David Driesen, a professor in Syracuse University's College of Law. "The comments should be available online, this is supposed to be a transparent process."

Modern Healthcare reached out directly to hospitals, clinicians and medical trade groups who submitted comments, and they expressed fear the rule would tighten access to care for vulnerable communities, especially for LGBT individuals. Large organizations like the American Hospital Association said the rule was vague and did not provide avenues for providers to give their side of the story if an employee felt forced to provide a service against his or her religious beliefs.

Patrick McLaughlin, a senior research fellow with the Mercatus Center, a conservative-leaning economic think tank at George Mason University said he believed the posting delay was "perfectly normal."

The Trump administration has previously faced criticism over the transparency of its rulemaking process. Last fall, HHS issued a rule expanding the range of businesses that can receive religious or moral exemptions from offering contraceptive coverage for employees.

The rule received 94,000 comments by its Dec. 5 comment deadline, but only 44,000 have been posted to date. Again, the responders are largely religious individuals in favor of the rule, and comments from industry healthcare groups have yet to be posted.