HHS Moves to Eliminate Controversial “SUNSET” Rule

On Oct. 28, the Department of Health and Human Services (HHS) served notice that it plans to repeal a controversial Trump rule, known as the “SUNSET” (short for Securing Updated and Necessary Statutory Evaluations Timely) rule, that would have required the department to eliminate existing regulations after 10 years unless it reviewed them and made the case to justify keeping them in place.

The SUNSET Rule

While it refers to the organic elimination of regulation, the word “SUNSET” also describes how the Trump administration sought to put the rule into place literally the day before President Biden was sworn into office. From publication of the proposal to publication of the final rule, HHS completed the rulemaking at a breakneck speed of less than three months. Despite the short commentary period, over 20 interested parties provided oral statements and over 500 stakeholders submitted comments on the proposal, pretty much all universally opposing its implementation. The rule was slated to take effect March 22, 2022. However, HHS postposed implementation by one year, after a coalition of health care organizations, including the American Hospital Association, sued HHS to stop its implementation. “The rule does not even specify which of the Department's 18,000 existing regulations are exempted under the limited exceptions,” according to the complaint. “In other words, the outgoing administration planted a ticking time bomb set to go off in five years unless HHS, beginning right now, devotes an enormous amount of resources to an unprecedented and infeasible task."

The Sunset of the SUNSET Rule

The Oct. 28 HHS notice pretty much spells the demise of SUNSET. HHS contends that implementing the rule “would significantly alter the operations of HHS with considerable repercussions for a diverse array of stakeholders." The proposal calls for withdrawing or repealing the rule in its entirety, claiming that doing so would save the Department $75.5 million annually.