Lawsuit Argues 'Ticking Time Bomb' Could Invalidate Thousands Of Health Rules

In its final days, the Trump administration created a rule that could eliminate thousands of regulations created by the Department of Health and Human Services. A lawsuit is challenging the rule.

Transcript

MARY LOUISE KELLY, HOST:

On the last day of the Trump administration, the Department of Health and Human Services finalized what is called the SUNSET rule. Now a new lawsuit seeks to block that rule, alleging it's a ticking time bomb left by Trump officials for the Biden administration's health agency. NPR's Selena Simmons-Duffin got an exclusive early look at the lawsuit and has our story.

SELENA SIMMONS-DUFFIN, BYLINE: Here is an idea of what rules from the Department of Health and Human Services are and what they do. If you pick something up at the grocery store and wonder what's in it, the nutrition label is there because of federal rules. If you show up at an emergency room needing medical care, you have to get treated because of rules. You can rest assured that your bottled water doesn't contain arsenic because of rules, too.

There are 18,000 of these HHS rules. Under the Trump administration's Securing Updated and Necessary Statutory Evaluations Timely, or SUNSET rule, the department has to review each of them within a certain time frame to make sure they are still, quote, "having appropriate impacts and have not become outdated." For most of these rules, that time frame is five years. If the review isn't done in that time, the regulation automatically expires or, put another way...

SAMARA SPENCE: If they don't meet the expectation, then the time bomb goes off. Everything they did not get to just poofs out of existence.

SIMMONS-DUFFIN: That's Samara Spence, senior counsel at the Democracy Forward Foundation, which is representing the plaintiffs in the lawsuit filed today. To be clear, agency rules are law. Think about it like when it passes laws, Congress gives federal agencies some basics to go and make the law into something that will work in the real world - pretty simple blueprints.

ERIN FUSE BROWN: It provides the materials. It provides some direction, right? Build a skyscraper that generally will be about this tall and have this many floors.

SIMMONS-DUFFIN: Erin Fuse Brown, health law professor at Georgia State University, says that construction actually happens with carefully crafted rules using an agency's expertise. Take HIPAA, for example, the law that protects your private health information that was basically a command to HHS to come up with something.

FUSE BROWN: The privacy rule is a regulation that the agency came up with because Congress doesn't have the expertise to come up with the details. And so all of these rules are sort of the nuts and bolts of all of this law.

SIMMONS-DUFFIN: The plaintiffs in the suit include the county of Santa Clara, Calif., the American Lung Association, the Natural Resources Defense Council and others. They argue that the rule exceeds the agency's authority and is arbitrary and capricious and that the Trump administration jammed through the rule without offering enough notice or time for comment. James Williams, county counsel for Santa Clara, which runs a large safety net hospital, says the comment period was right in the middle of the winter COVID-19 surge.

JAMES WILLIAMS: Our hospitals were filling up. We were focused on ICU capacity. We were focused on doing what we needed to do to run our hospital system. We couldn't take our eyes off of that crisis to try to figure out which of the 18,000 regulations would automatically expire under this rule.

SIMMONS-DUFFIN: The SUNSET rule does have its defenders. For his part, Douglas Holtz-Eakin, president of the conservative think tank American Action Forum, thinks systematic regulatory review is a good idea. Of the SUNSET rule, he says...

DOUGLAS HOLTZ-EAKIN: It had the right principle, but it seemed to occur at a weird time - as they were walking out the door - and in a very narrow place - one agency.

SIMMONS-DUFFIN: He says he thinks Congress should pass a law on regulatory review and that it should apply across all federal agencies, not just HHS. What happens next depends on how the Biden administration responds to the lawsuit and whether Congress weighs in. Because the rule was filed so late in the Trump administration, Congress could eliminate the rule through the Congressional Review Act. HHS could also decide to stay the rule, essentially suspend its implementation indefinitely while the litigation is pending. HHS did not respond to a request for comment on its plans.

Selena Simmons-Duffin, NPR News.

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