The Richardson Waiver Rescission

One of the more subtle administrative threats to HHS data integrity comes from an obscure exemption of the Administrative Procedures Act in 5 U.S.C. § 553(a)(2) that states that the notice-and-comment process does not apply to:

“a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”

While this exemption is broad and applies to all agency rulemakings, the impact of the exemption on HHS activities is perhaps the largest given their outsized role in generating data through grants and benefits programs. For this reason, since 1971 HHS (previously HEW at the time), has waived its exercise of this exemption through an internal policy memorandum known as the Richardson Waiver. The waiver committed HHS to use notice-and-comment procedures for certain categories of rulemaking that the Administrative Procedure Act (APA) does not require to undergo notice and comment, particularly rules involving public property, loans, grants, benefits, or contracts.

On February 28th, 2025, HHS rescinded the Richardson Waiver “effective immediately,” stating that HHS would follow notice-and-comment procedures only when required by statute and that the APA’s exemptions would be applied according to their text (U.S. Department of Health and Human Services, 2025). Although HHS components retain discretion to use notice-and-comment in particular cases, the default presumption in favor of broader public participation for these categories of actions has been removed.

Potential Consequences on Data Integrity

The Richardson Waiver was not itself a data-specific policy. It did not directly govern any other information policy derived from other statutes such as the Freedom of Information Act, Paperwork Reduction Act, Public Health Act, or the Evidence Act. Nevertheless, many public-facing data practices are shaped by program rules, grant conditions, and contracts at HHS. Observers have characterized the rescission as part of a broader set of administrative changes that may reduce transparency and participatory governance at HHS (Reiss, 2025).

This procedural shift does not directly repeal any data-specific policy or regulation. However, it changes the process by which many HHS program rules that structure how data are collected, standardized, reported, and disclosed, are developed. As a result, it may have downstream implications for data collection continuity, data integrity, public data access, and public oversight into data collection activities at HHS. As the American Bar Association pointed out, with the waiver rescinded, HHS may implement changes in these areas without notice-and-comment periods unless otherwise required by law (Mys, 2025)}. Many stakeholders, including contributors to dataindex.us (Maury & Marcum, 2025; Maury & Ross, 2026), have consistently argued that public comment is essential for the maintenance of federal data integrity and the loss of it could impact data collection in several ways, including:

  • Data standards: Limited public review of revisions to definitions, coding and data collection standards, or collection instruments.
  • Scope of collected elements: Policy shifts may alter which variables are collected, retained, or prioritized.
  • Feasibility and compliance issues: Notice-and-comment historically allowed external stakeholders to identify operational barriers that might otherwise degrade data completeness or reliability.
  • Removal of data tools: Some data generated from grants and from benefits programs have derivative use in data tools and those become at-risk of removal without notice.

Data integrity, specifically, benefits from public input. Without a presumption of notice-and-comment as provided for by the APA, for exempt rule categories that generate data, certain HHS actions may proceed without public notice or input. As a result, the recision of the Richardson Waiver could implicate data integrity risks, including:

  • Specification errors: Faster implementation timelines may increase the likelihood of technical inconsistencies.
  • Implementation variability: Reduced opportunity for pre-issuance clarification may lead to inconsistent interpretation across implementing entities.
  • Reduced transparency of methodological change: Notice-and-comment generates a formal administrative record explaining why changes were made. Without it, downstream data users may have less documentation to interpret discontinuities or anomalies.

To be clear, these risks are contingent rather than automatic. HHS may still voluntarily use notice-and-comment in particular circumstances. However, the structural incentive toward public input has shifted since the rescission and provides a larger runway for skulduggery by HHS agencies.

Conclusion

The rescission of the Richardson Waiver does not directly eliminate datasets, suspend statutory reporting obligations, or repeal disclosure laws. Its primary effect is procedural: it restores the APA’s exemptions for certain categories of HHS rulemaking without a voluntary overlay requiring public input via notice-and-comment.

Because many HHS data systems are shaped through grants, benefits, contracts, and program administration rules, this procedural shift may:

  • Increase the likelihood of faster, less publicly vetted changes to data collection frameworks;
  • Heighten risks of technical discontinuities or documentation gaps;
  • Indirectly affect public data access practices; and,
  • Narrow the administrative record available for public oversight.

The full impact will depend on how frequently HHS components elect to use discretionary notice-and-comment going forward and how changes in program rules interact with statutory data requirements. Nonetheless, the rescission alters a substantial portion of HHS information policy, much of which has structured federal health data systems for decades and represents a non-trivial threat to its integrity.

References

  1. Maury, M., & Marcum, C. (2025). How You Can (and should) Shape Federal Data Collections. America’s Data Index. https://dataindex.us/newsletter/article/6cfecae3-3c89-487e-b8f7-cfcd85ded6c7
  2. Maury, M., & Ross, D. (2026). Take Action: How to Write a Public Comment on Federal Data. America’s Data Index. https://dataindex.us/events/Take-Action-How-to-Write-a-Public-Comment-on-Federal-Data
  3. Mys, A. (2025). HHS Rescinds Richardson Waiver, Reducing Public Input in Rulemaking. American Bar Association. https://www.americanbar.org/groups/health_law/news/2025/3/hhs-rescinds-richardson-waiver-reducing-public-input-in-rulemaking/
  4. Reiss, D. (2025). Administrative Changes That Decrease Transparency at HHS. The Regulatory Review. https://www.theregreview.org/2025/03/24/reiss-administrative-changes-that-decrease-transparency-at-hhs/
  5. U.S. Department of Health and Human Services. (2025). Policy on Adhering to the Text of the Administrative Procedure Act. Federal Register. https://www.federalregister.gov/documents/2025/03/03/2025-03300/policy-on-adhering-to-the-text-of-the-administrative-procedure-act

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