Analysis: Scott praises HHS decision to protect religious liberty

On Friday, United States Senator Tim Scott (R-SC) released the following statement following the Department of Health and Human Services (HHS) decision to repeal the regulation that threatened faith-based foster care and adoption agencies in South Carolina.

“It is fitting that this National Adoption Month, HHS has sided with our most vulnerable children in restoring the rights of the faith-based adoption agencies who care for them,” said Senator Scott. “South Carolinians can rest assured that their religious liberties are protected while we will continue to do everything we can to help our children find loving and nurturing homes.”

The Department of Health and Human Services (HHS) issued a Notice of Nonenforcement to inform the public that certain regulatory provisions in The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards”HHS grants regulation”) will not be enforced because of serious concerns regarding the prior administration’s implementation of the Regulatory Flexibility Act, which governs the issuance of certain regulations. HHS is also taking immediate steps to address the issue by publishing a notice of proposed rulemaking to reissue the HHS grants regulation with revisions.

In summary, the proposed rule would:

Require grantees to comply with applicable nondiscrimination provisions passed by Congress and signed into law.

Provide that HHS complies with applicable Supreme Court decisions in administering its grant programs.

Not re-impose the exclusion from allowable costs in grants of penalties due for failing to comply with Individual Mandate of the Affordable Care Act (ACA). The Trump Administration has already eliminated the penalty associated for failing to comply with the ACA’s individual mandate.

Reissue the other provisions of the 2016 regulation.

In the proposed rule, HHS would repromulgate most of the provisions of the 2016 rulemaking verbatim.

HHS would revise two provisions of the 2016 rulemaking to require grantees to comply with applicable nondiscrimination provisions passed by Congress and signed into law, including legislation ensuring the protection of religious liberty, and to provide that HHS complies with all applicable Supreme Court decisions in administering its grant programs.

The proposed rule represents the Trump Administration’s strong commitment to the rule of law — the Constitution, federal statutes, and Supreme Court decisions. These require that the federal government not infringe on religious freedom in its operation of HHS grant programs and address the impact of regulatory actions on small entities.

HHS is committed to fully enforcing the civil rights laws passed by Congress. The proposed rule would better align its grants regulations with federal statutes, eliminating regulatory burden, including burden on the free exercise of religion. HHS is affirming that it will comply with all applicable Supreme Court decisions in administering its grants programs.


This week a lawsuit filed by Sen. Dick Harpootlian over the Department of Commerce’s refusal to disclose records regarding two corporate incentive deals received a court hearing.

During the hearing, Commerce Secretary Bobby Hitt defended the agency’s disclosure policies and stated that Harpootlian was the first to challenge Commerce’s actions in court.

The state’s Freedom of Information Act (FOIA) requires public agencies to turn over information requested by a citizen – with a handful of exceptions, one of which is “trade secrets” and is the loophole Commerce typically uses to shield economic incentive deal details.

Another loophole exempts lawmakers’ “memoranda, correspondence, and working papers,” which is routinely used as a blanket exemption from any legislative disclosure obligation under FOIA.

However, some agencies not subject to an exemption will simply refuse to disclose public records, with no consequences.

Two years ago, the South Carolina Policy Council, the parent organization of The Nerve, conducted a survey of eleven state agencies to measure the effectiveness of the state’s open records law.

The results? Four of the eleven – all education institutions – failed to supply the requested information, and the University of South Carolina failed to even acknowledge the request.

The Department of Transportation had charged over $30,000 in fees to comply with FOIA requests over the preceding three years, and the state Senate – based on the legislative exemption – refused to disclose even the number of FOIA requests received.

Between the FOIA loopholes and agencies’ simple unwillingness to comply, citizens interested in the inner workings of state government are not guaranteed access to information about their own state government – unless they have the resources to take public agencies to court.

Contact U.S. Sen. Tim Scott, R-South Carolina at 2500 City Hall Lane, 3rd Floor Suite, North Charleston, SC 29406. 843-727-4525; or 520 Hart Senate Office Building, Washington, DC, 20510. 202-224-6121.