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 Feb. 28, 2019:
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
