On Friday, January 8, 2021, the Department of Health and Human Services (“HHS”) released a final rule that would provide HHS with five years to review existing regulations that are more than ten years old, subject to certain exceptions, to determine if each regulation is still necessary. HHS will be permitted to extend this deadline one time per regulation if the HHS Secretary “makes a written determination that the public interest requires continuation of the” regulation and the deadline can only be extended for one year. If a regulation is not reviewed and assessed, the final rule would cause the regulation to automatically expire.

The final rule will not apply to HHS regulations that were jointly released with another agency, regulations that concern military or foreign affairs, and all annual Medicare payment rule updates. HHS contends that this final rule is necessary to bring itself into compliance with the Regulatory Flexibility Act of 1980 and other executive orders that require agencies to review their existing regulations. The final rule is set to go into effect 60 days after being published in the Federal Register, which will be well after President-Elect Joe Biden is inaugurated on January 20, 2021.

Norton Rose Fulbright attorneys will continue to monitor this final rule and any post-inauguration actions taken by the Biden administration.