Early this month, the White House issued two Executive Orders, with each Order to simplify and modernize the way that federal government regulators interpret and enforce laws and regulations against businesses. For a heavily regulated industry like home care, the Executive Order may alleviate some of the challenges faced by business who are audited by federal regulators (e.g., OIG, U.S. DOL, IRS) and ambiguities related to compliance with federal regulations.
The first Executive Order allows for guidance documents to be more accessible to the public because it requires government agencies to put their guidance documents in databases on easily searchable websites, and states that guidance documents not uploaded to an agency’s website database will no longer remain in effect. Further, each guidance document must:
- include a clause stating that it is not binding;
- contain procedures for the public to petition for its withdrawal or modification; and
- be preceded by published public notice granting a window of comment and response if it is deemed “significant” by the Administrator of OMB’s Office of Information and Regulatory Affairs.
The second Executive Order aims to make agencies’ procedures and actions more transparent and fair to the public. Thus, this Executive Order:
- prohibits agencies from using guidance documents to impose new standards of conduct on persons outside the executive branch;
- requires that agencies establish a violation of law by statutes or regulations when they take administrative actions;
- mandates that agencies respond with opinion letters to requests for compliance instructions;
- protects individuals by mandating that agencies now must articulate in writing the basis for actions with legal consequences and offer an individual the opportunity to be heard; and
- requires any new or expanded claim of jurisdiction, like regulating a new subject matter, to be published in the Federal Registrar before the conduct has occurred.