Establish a process for obtaining waivers from federal regulations and identify the regulations for which this process applies. (1) The President should direct each agency to establish and publicize an open process for obtaining waivers from that agency's regulations. The process should address the following considerations: --- Waiver petitions, so as not to be frivolous, must be submitted by heads of local or state governments (who may seek the counsel of their senators or representatives) or heads of federal departments/agencies. Waiver petitions from private entities or individuals would be prohibited. --- Initial waiver decisions should be made in 60 days, but if no decision is made, the waiver will be deemed to have been granted unless the petitioned agency formally notifies the petitioner that it has extended the period of consideration for a maximum of another 30 days. If no explicit decision is made in that time, the waiver would be automatically approved. --- Input must be sought from the office with line responsibility for issuing or implementing the regulation for which a waiver is sought, perhaps by having that office make the initial decision on the waiver. Where state or local agencies are affected, the appropriate senators or representatives should be consulted by the petitioned federal agency. --- A right must be included for the petitioner to appeal a denial to an agency or department office not having line responsibility for the issuance or implementation of the regulation at issue. (This might be a waiver appeals board, the general counsel's office, an office of program design, etc.) This is necessary to ensure that staff heavily invested in the existing regulatory structure do not inappropriately block innovative programs. The duration of the appeal should also be limited to 60 days with no provisions for extension of the consideration period. --- Decisions by the independent waiver appeals board can be appealed to the head of the agency by either the petitioner or the responsible office. This period should be strictly limited to 30 days. --- An office designated by the President could serve as ombudsman from whom petitioners may seek help when a waiver decision is appealed to the Secretary or agency head. A petitioner should be able to present its position to this waiver office; this office would advise the Secretary/agency head as to whether it thinks the waiver should be granted or denied. --- All documents submitted by the petitioners to either the agency or the waiver office must be made available to the public. Final decisions must be announced promptly in the Federal Register. --- Initial waiver decisions need only signature approval to be granted, while denials would have to be supported by written explanations. All government officials who are formally a party to the ultimate decision should be clearly identified for the record. Waiver authority should not be sought or instituted for all programs. Waivers should further the statutory intent, be limited in duration and scope, and have measurable results. Waiver authority is appropriate when the petitioner needs a waiver to innovate, such as a state developing a new welfare program. It is also appropriate when changes in circumstances outpace changes in rules. It is inappropriate when agencies are requiring public or private entities to act for health, safety, or environmental reasons. For example, states should not have any additional authority to seek waivers of Clean Air Act requirements, either for themselves or for private entities. Such waivers would not further the purposes of the legislation. Agencies must designate those existing regulations or programs for which the waiver authority will apply. The waiver process should be instituted immediately for those regulations for which the agency has the authority to do so. Where agencies need a statutory change to institute the waiver process, the Administration should seek such legislation. As new legislative requirements are proposed, explicit provisions for waiver authority should be considered. The current presumption that legislative requirements cannot be waived should be reversed so that agency heads have authority to waive requirements unless legislation explicitly prohibits waivers. The Administration should seek legislation to accomplish such reversals. Each agency should be responsible for maintaining a data base tracking waivers requested and granted by that agency, including the expected duration and results of each waiver. When a waiver demonstrates its value, or when significant patterns and trends detected by the agencies suggest that regulations or laws create pervasive problems, the agency should revise or abolish the requirement. For example, 48 state agencies have waivers from the Medicaid program allowing them to provide community-based services as an alternative to nursing home care, which is the service routinely covered by Medicaid.(8) With such a preponderance of states seeking waivers, the basic policy clearly demands attention.
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