November 1, 2019
HHS Issues Proposed Rule to Align Grants Regulation with New Legislation, Nondiscrimination Laws, and Supreme Court Decisions
Today, the Department of Health and Human Services (HHS) issued a Notice of Nonenforcement to inform the public that certain regulatory provisions in The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards"HHS grants regulation") will not be enforced because of serious concerns regarding the prior administration's implementation of the Regulatory Flexibility Act, which governs the issuance of certain regulations. HHS is also taking immediate steps to address the issue by publishing a notice of proposed rulemaking to reissue the HHS grants regulation with revisions.
In summary, the proposed rule would:
- Require grantees to comply with applicable nondiscrimination provisions passed by Congress and signed into law.
- Provide that HHS complies with applicable Supreme Court decisions in administering its grant programs.
- Not re-impose the exclusion from allowable costs in grants of penalties due for failing to comply with Individual Mandate of the Affordable Care Act (ACA). The Trump Administration has already eliminated the penalty associated for failing to comply with the ACA's individual mandate.
- Reissue the other provisions of the 2016 regulation.
In the proposed rule, HHS would repromulgate most of the provisions of the 2016 rulemaking verbatim. HHS would revise two provisions of the 2016 rulemaking to require grantees to comply with applicable nondiscrimination provisions passed by Congress and signed into law, including legislation ensuring the protection of religious liberty, and to provide that HHS complies with all applicable Supreme Court decisions in administering its grant programs.
The proposed rule represents the Trump Administration's strong commitment to the rule of law―the Constitution, federal statutes, and Supreme Court decisions. These require that the federal government not infringe on religious freedom in its operation of HHS grant programs and address the impact of regulatory actions on small entities.
HHS is committed to fully enforcing the civil rights laws passed by Congress. The proposed rule would better align its grants regulations with federal statutes, eliminating regulatory burden, including burden on the free exercise of religion. HHS is affirming that it will comply with all applicable Supreme Court decisions in administering its grants programs.