President Trump recently issued an executive order (EO) intended to establish more transparent processes for subregulatory guidance. Specifically, the “Promoting the Rule of Law Through Improved Agency Guidance Documents” order imposes additional administrative obligations on federal agencies and the Office of Management and Budget.
Those obligations include establishing processes for issuing guidance documents — separate from a formal rulemaking process — with a 30-day public comment period and a requirement for agencies to respond publicly to “major concerns.”
The order also requires the establishment of procedures for the public to petition for withdrawal or modification of a particular guidance document.
In addition, the order requires — within 120 days of its implementation — each agency to establish or maintain on its website a single, searchable, indexed database that contains, or links to, all guidance documents. While many of the guidance documents often used by hospitals are currently available online (e.g., manuals and transmittals), they are not located in a single, searchable, indexed database.
Finally, the order formalizes the position — consistent with previous administrations — that agencies should treat guidance documents as non-binding both in law and in practice, except as incorporated into a contract.
CHA is reviewing the EO and its implications and will keep the membership informed as we learn more.