"I believe the waiver process established by HHS in this instance is inappropriate and undesirable on three public policy grounds:

First, it results in unequal application of the law to affected parties and creates unequal burdens. Some applicants may get waivers while others may not. Furthermore, affected employers that are larger, and thus have more resources for responding to regulatory interventions, are more likely to be aware of, and apply for, the waivers than smaller firms with fewer resources.

Second, it creates at least the perception -- and possibly the fact -- that regulatory enforcement is being subordinated to Administration political priorities or concerns. The combination of HHS establishing interim dollar limits in the regulation, but then also instituting a process for waiving those limits on a case-by-case basis, appears deliberately designed to convey the perception that the new law is having a positive effect, while selectively avoiding any enforcement actions that might create the opposite public perception that the law is resulting in adverse, unintended consequences.

Third, it creates the opportunity, and the temptation, for Administration officials to apply the law corruptly or to engage in political favoritism when making enforcement decisions. Even if actual enforcement is not in fact tainted, the existence of a regulatory process that appears to invite such a possibility needlessly raises suspicions and undermines public confidence in the rule of law."