COVID-19 Spurring Governors to Cast Regulations Aside

One common factor pervades state reactions to COVID-19: for better or worse, governors are exercising executive power at levels previously unseen. Some governors have issued more executive orders in the past month than in their prior years as governor.

Fortunately, the COVID-19 crisis has spurred governors to boldly suspend regulations for the duration of the emergency. While these actions are bold, they pale in comparison to Idaho Governor Brad Little’s impressive work last year – his executive orders  and administrative efforts resulted in cutting back or simplifying 75 percent of Idaho’s regulations.

In the wake of COVID-19, governors, legislators and citizens should ask the question: do we need to go back to our prior regulations, or should some of these suspensions be converted to permanent repeals?

Many rules and regulations have been suspended during COVID-19 to encourage social distancing (e.g., allowing remote notarization; temporarily extending vehicle permits and driver’s licenses; and extending professional and occupational licenses). Other rules and regulations have been suspended to reduce financial pressures during the emergency (e.g., extending tax deadlines and waiving the waiting period for unemployment benefits). These are properly temporary measures only needed during the emergency.

Other regulations suspended by the governors deserve closer scrutiny before they are put back into place. When success at all costs becomes the goal in a crisis, regulatory barriers are quickly swept away to allow prompt action and flexibility. In the current crisis, this is particularly apparent in the areas of telemedicine; hospital regulations; occupational licensing for health care professionals and food and alcohol delivery.

One of the first decisions most governors made was to remove barriers to telemedicine. As physicians and citizens become more familiar with and comfortable with telemedicine, they will discover that it allows patients to avoid contact with those with other illnesses. Telemedicine has the added benefit of eliminating travel time for a patient to see a health care professional.

Frequently, the licenses of healthcare practitioners do not transfer across state lines. During COVID-19, the governors want to increase healthcare staff as much as possible. To obtain more healthcare practitioners during the crisis, the governors of some states, including New Jersey, Nebraska and Maryland, have taken steps such waiving scope of practice requirements, re-licensing retired practitioners and recognizing out-of-state licenses of healthcare professionals in good standing. Recognizing these out-of-state licenses indefinitely would be a common-sense step forward for the healthcare industry. Arizona led on this front last year, becoming the first state to offer universal recognition of out-of-state licenses. Other states would benefit from emulating Arizona.

States need as much capacity at their hospitals during the crisis as possible, so many governors have suspended state “certificate of need” (CON) requirements. By suspending this “competitor’s veto,” additional hospitals can quickly get up and running and provide additional beds. Before the crisis, Florida had already eliminated CON. Other states should consider making this suspension permanent.

As governors ordered restaurants, bars, breweries and wineries to close their dining areas during the crisis, they also left some options open to these businesses and began to provide additional options for continued income. First, they continued to allow these businesses to offer food for curbside delivery. Some even allowed the restaurants to sell uncooked prepared food for customers to cook at home. Second, many states suspended some of their alcohol laws. West Virginia and New Hampshire, for example, are allowing restaurants to sell beer and wine to go. Virginia is not only allowing restaurants and bars to serve alcohol to go, it is also allowing the shipment of liquor to residents. Maryland is allowing restaurants, bars and wineries to sell alcohol to go as well. Nebraska is even allowing mixed drinks to be sold with a lid. If these measures make sense during a crisis, why not permanently allow these businesses to continue these practices?

COVID-19 has turned our world upside down, spurring governors to throw many regulations out the window. Rather than quickly reinstating them after the pandemic, states should carefully examine the economic benefits of deregulation. Elected officials are likely to discover that eliminating burdensome restrictions can be beneficial for all Americans.