National measures to address the challenges faced by COVID-19 have been proliferating at breakneck speed across the world. While there have been a number of important efforts to track these measures, international coordination has been lagging. Though the immediate crisis we each individually feel is close to home, it is shared among the entire world. Just as no person is immune from the virus, neither is any country. A global pandemic requires a global response. The good news is that we already have many mechanisms in place to collaborate on an international level, and now is the time, if any, to use them.
One area where coordination would be especially helpful at this time of crisis is in international trade. With many countries facing critical shortages of personal protective equipment (PPE), ventilators, and other medical supplies, keeping supply chains moving and markets open is integral. A new report issued by economist Simon Evenett from the University of St. Gallen in Switzerland found that 54 countries have imposed export restrictions on medical goods this year. While seven countries (Australia, Brunei, Canada, Chile, Myanmar, New Zealand and Singapore) affirmed “the importance of refraining from the imposition of export controls or tariffs and non‐tariff barriers and of removing any existing trade restrictive measures on essential goods, especially medical supplies, at this time,” the United States has remained silent on this issue.
The Director‐General to the World Trade Organization (WTO), Roberto Azevêdo, recently announced an effort to enhance transparency of measures countries are taking that may be trade disruptive. The WTO can actually play an important role here. While most people associate the organization with its dispute settlement mechanism, which allows states to challenge trade restrictive measures of other states through adjudication, there is much more to the WTO than dispute settlement. In fact, the transparency mechanism highlighted by Azevêdo is an important component of the daily interaction of WTO members in other areas, allowing countries to have quick knowledge of what others are doing. But this mechanism can be used in other ways too.
For instance, the new COVID-19 notifications could include not just the measures countries are taking, but also the supply shortages they face. Instead of one‐off phone calls with individual leaders, this type of notification system could help in identifying the places where need is most critical, giving businesses and governments the information they need to coordinate an effective response. Such notifications can then be discussed within the Council for Trade in Goods (often comprised of ambassador‐level diplomats), or at the General Council, the highest deliberative body of the WTO (after the Ministerial Conference, which was cancelled this year). These notifications can also be made part of the WTO’s innovative ePing system, which allows the public and private sector to be quickly alerted to new product requirements. The WTO could create similar alerts for medical goods shortages, so that governments and the private sector can respond without delay.
While some are arguing for more protectionism and autarky amidst the pandemic, these calls are both problematic and short‐sighted. This line of thinking underpins the views of U.S. Trade Representative Robert Lighthizer, who recently defended the administration’s wide use of tariffs, suggesting that it would encourage the diversification of supply chains, “and—better yet—more manufacturing in the U.S.” First, diversifying supply chains in good times is hard enough, and in the middle of crisis, foolhardy. Lifting these tariffs immediately makes economic sense and is the moral thing to do as Americans face mounting economic challenges (because China doesn’t pay the tariffs, we do). Second, pushing for “reshoring” or things like “Buy American” provisions is also harmful, and will undoubtedly raise costs for consumers and producers alike, and add additional stress to manufacturers trying to ramp up production amid shortages.
As my colleague Simon Lester recently explained:
We want to have good trading relationships with the rest of the world, because when (inevitably) something goes wrong with our own production, we want to be able to quickly get help from others. We are better off if this manufacturing knowledge is distributed around the world. We just want to make sure that we have sources of supply in countries that we can count on.
To ensure the steady stream of supply, we need international coordination, and the WTO is well placed to play a critical role in this effort. This week, Ambassador Alan Wolff, Deputy Director‐General to the WTO, called for an “unprecedented level” of international cooperation in the face of the COVID-19 pandemic, noting that “The WTO also serves as a venue for discussions, cooperation, coordination and negotiation, even if the discussions will for the time being largely not be face‐to‐face.” These functions must continue, and a special effort be made to identify the gaps in national responses so that medical products can be directed to places most in need.
Furthermore, as the pandemic spreads, not every country will have the capacity to tackle these challenges alone, and developing countries that rely on imports of medical goods, will be particularly affected by export bans if they continue. More than half of the WTO’s membership is made up of developing countries, and they have extensive experience in using the current notification system. Let’s not reinvent the wheel and make it harder for countries to get the help they need—the WTO’s transparency mechanism can be an essential tool in this regard. Therefore, instead of taking on the attitude of every country for itself, we must quickly recognize the global nature of this current crisis, and respond in kind.
According to Metro Magazine, transit agencies are now “demanding” that Congress give them $25 billion in bailouts due to COVID-19. This is roughly two years’ worth of federal subsidies to transit.
Unlike the airlines and other industries that get all or nearly all of their revenues from customers, transit agencies already get 50 to 90 percent of their operating funds from taxpayers. That means that, even with no customers, they could keep buses and trains running at reduced schedules.
But why are transit systems running anyway? In this time of social distancing, the safest form of transportation is your private automobile.
Research has shown that “mass transportation systems offer an effective way of accelerating the spread of infectious diseases within communities.” Agencies say they are staying open for the sake of “medical staff, first responders and other essential workers.” In other words, they are encouraging health care and other “essential” people to use the form of transportation whose riders are nearly six times more likely to suffer from upper respiratory infections than those who don’t ride transit.
Rather than give transit even more subsidies on top of subsidies, we ought to shut it down. We should then seriously consider ending subsidies to transit systems when the current crisis is over. Even New York should think about alternate arrangements as its transit systems have more than $120 billion in debts, unfunded maintenance backlogs, and unfunded health care obligations making them clearly unsustainable.
Other than New York, transit is an environmental and social justice disaster, as I’ll show in a forthcoming Cato paper. It uses more energy per passenger mile than the average car In 484 out of 488 urban areas and emits more greenhouse gases in 480 of those urban areas.
Low‐income commuters were significantly less likely to ride transit to work in 2018 than in 2010, while transit’s major growth market is people who earn more than $75,000 a year. They don’t need the kind of subsidies we are giving transit, and transit agencies certainly don’t need $25 billion in bailouts today.
On March 23, Arizona Governor Doug Ducey sent a letter to Seema Verma, Administrator of the Centers for Medicare and Medicaid Services, informing her the state was opting out of Medicare regulations that require Certified Registered Nurse Anesthetists to be supervised by a physician. This is aimed at expanding the scope of the health care workforce during the COVID-19 public health emergency.
The following day, the governor issued an executive order to that effect, causing Arizona to join 17 other states that allow CRNAs to practice independently. This was made possible by a 2001 Bush Administration rule that made the supervision requirement optional, deferring to the judgment of the states and their state licensing boards.
As the governor of a state, Ducey exercised his best judgment, based upon the knowledge available to him as well as the specific needs and characteristics of his particular state, to determine the risks and benefits of the action. And yet health care practitioners lack the same ability, based upon their knowledge and their patients’ circumstances, to use their best judgment when treating pain.
The 2016 guidelines for the treatment of acute and chronic pain issued by the Centers for Disease Control and Prevention, like Medicare’s CRNA regulation, were always meant to be optional. In fact, in its opening section, the guidelines state:
Clinical decision making should be based on a relationship between the clinician and patient, and an understanding of the patient’s clinical situation, functioning, and life context. The recommendations in the guideline are voluntary, rather than prescriptive standards. They are based on emerging evidence, including observational studies or randomized clinical trials with notable limitations. Clinicians should consider the circumstances and unique needs of each patient when providing care (emphasis added).
That didn’t stop governors and state legislatures from enacting strict restrictions on opioid prescribing by health care practitioners. The majority of states have statutory limits on the dosage and quantity of opioids a provider can prescribe to a patient in pain. Some states direct or authorize state entities to set these limits instead of spelling them out in the law.
In late 2018, then‐Commissioner Scott Gottlieb of the Food and Drug Administration announced plans to consult the National Academy of Science, Engineering and Medicine to develop evidence‐based guidelines for the treatment of pain. In April 2019, the CDC issued a clarification of the 2016 guidelines, claiming these guidelines were misinterpreted and misapplied, and two of the guidelines’ authors wrote in the New England Journal of Medicine:
We need better evidence in order to evaluate the benefits and harms of clinical decisions regarding opioid prescribing, including when and how to reduce high‐dose opioids in patients receiving them long term. The CDC developed the guideline on the basis of the best available evidence, with input from a multidisciplinary group that included experts in pain management as well as representatives of patients and the public. In situations for which the evidence is limited, it is particularly important not to extend implementation beyond the guideline’s statements and intent. And yet in some cases, the guideline has been misimplemented in this way.
In May 2019, the Department of Health and Human Services released a report from its Pain Management Best Practices Inter‐Agency Task Force. The report stated in its Executive Summary:
The Task Force recognizes the utility of the 2016 Guideline for Prescribing Opioids for Chronic Pain released by the CDC and its contribution to mitigating unnecessary opioid exposure and the adverse outcomes associated with opioids. It also recognizes unintended consequences that have resulted following the release of the guidelines in 2016, which are due in part to misapplication or misinterpretation of the guideline, including forced tapers and patient abandonment.
Among its conclusions:
An emphasis on an individualized, patient‐centered approach for diagnosis and treatment of pain is essential to establishing a therapeutic alliance between patient and clinician… The choice of medication should be based on the pain diagnosis, the mechanisms of pain, and related co‐morbidities following a thorough history, physical exam, other relevant diagnostic procedures and a risk‐benefit assessment that demonstrates that the benefits of a medication outweigh the risks (emphasis in the original).
Nevertheless, state‐based restrictions remain in place, straitjacketing health care practitioners who want to relieve their patients’ pain.
The COVID-19 pandemic provides many lessons for policymakers. Many lessons reveal how complicated, inflexible, one‐size‐fits‐all regulations stifle swift and effective responses to changing circumstances. As the federal government temporarily relaxes numerous regulations in response to the public health crisis, state and local policymakers are using their newfound freedom to make risk/benefit decisions that fit their specific needs.
Hopefully this experience will cause state leaders to free clinicians to exercise their best judgment in treating their patients in pain once again.
State and local medical providers are noticing a decline in immigrants’ use of health services, which they attribute to Trump administration policies:
Public‐health officials say a Trump administration policy meant to discourage immigrants from using public‐health resources is deterring people from getting medical treatment for fear of hurting their immigration status, making it harder to test and treat possible cases of the new coronavirus.
The rule in question, the Department of Homeland Security’s Public Charge Rule, was formally implemented on February 24, 2020. Under the rule, immigrants deemed likely to be dependent on public assistance – evidenced through use of state or local health programs targeted at poor populations – are subject to denial of permanent legal status.
An alien who is likely at any time to become a public charge is generally inadmissible to the United States and ineligible to become a lawful permanent resident. Under the final rule, a public charge is defined as an alien who has received one or more public benefits, as defined in the rule, for more than 12 months within any 36‐month period.
Healthcare providers are concerned that non‐citizens, fearing the threat of losing a chance at future permanent legal status, will avoid visiting doctors, thus making COVID-19 more difficult to diagnose, treat, or trace unless the disease progresses to a life‐threatening stage. United States Citizenship and Immigration Services has since issued new guidance, saying:
USCIS encourages all those, including aliens, with symptoms that resemble Coronavirus Disease 2019 (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services. Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.
Non‐citizens, however, are understandably hesitant to take the revised guidance at face value. According to a Queens‐based doctor, “people are wary. They believe they are having their names placed in a registry.”
Regardless of one’s views on immigration policies, one must accept that undocumented immigrants will always be present. And if policy treats these immigrants harshly, that might make them more likely to generate externalities for the native population.
Amid the ongoing COVID-19 pandemic, lawmakers and officials are rushing to try and answer a host of questions: “Who has the disease?” “Where are they?” “Where have they been?” Accurate answers to these and other questions would help tackle the pandemic. Across the world, a range of surveillance technologies are being deployed in an effort to find out more about who is sick. Although a crisis may make increased surveillance more palpable to the billions under some kind of lockdown civil libertarians shouldn’t be shy about highlighting the ineffective nature of many emergency measures and insisting that even those that are effective be strictly time‐limited.
Tragedies, panics, and crises have a tendency to result in bad policy. The 9/11 terrorist attacks prompted a wave of unnecessary and ineffective laws and policies. The establishment of the Department of Homeland Security (DHS) and its Transportation Security Agency (TSA), the passage of the PATRIOT Act, and the rollout of a wide range of new surveillance programs are among the most notable domestic examples. The effectiveness of these measures should embarrass government officials. Post‑9/11 mass surveillance did not thwart large terrorist attacks, with a White House panel finding that one of the most famous mass surveillance programs — the snooping on telephony metadata — was “not essential in preventing attacks.” Meanwhile, the TSA has demonstrated that it’s more efficient at fondling law‐abiding citizens and residents than it is at passing its own security tests. Predator drones, often associated with US foreign policy, fly along the northern and southern borders adorned with the Customs and Border Protection logo.
Even when emergency measures are effective they can sometimes stick around longer than necessary. At the beginning of the Second World War the British government passed a range of policies that infringed on civil liberties, including the introduction of ID cards. In September, 1939 First Lord of the Admiralty Winston Churchill gave a speech in which he emphasized that infringements on freedom would be temporary:
Perhaps it might seem a paradox that a war undertaken in the name of liberty and right should require, as a necessary part of its processes, the surrender for the time being of so many of the dearly valued liberties and rights. In these last few days the House of Commons has been voting dozens of Bills which hand over to the executive our most dearly valued traditional liberties. We are sure that these liberties will be in hands which will not abuse them, which will use them for no class or party interests, which will cherish and guard them, and we look forward to the day, surely and confidently we look forward to the day, when our liberties and rights will be restored to us, and when we shall be able to share them with the peoples to whom such blessings are unknown.
The surrender of Nazi Germany and Imperial Japan did not spell the end of British ID cards. It wasn’t until 1952 that the British government finally scrapped ID cards over the objections of many in law enforcement.
Crisis measures are often ineffective and can survive the crisis they are implemented to counter. We should keep these facts in mind while addressing the COVID-19 pandemic.
There are important differences between the Second World War and the current pandemic. The Second World War had clear victory conditions and the enemy’s territory was geographically defined. It’s unclear what it will take for governments to declare the current pandemic to be over, and the pandemic is a crisis that is indiscriminately affecting countries across the world.
Knowing more information about people is valuable in a pandemic, and some have cited examples around the world of information gathering being effective. Singapore is one of the countries most mentioned in pandemic surveillance discussions. A recent Harvard University study found that if other countries had used Singapore’s methods to detect imported cases of COVID-19 the number of detected imported cases could have been about three times what it is now.
In South Korea, international visitors are required to download an app that helps users check for COVID-19 symptoms. Those in quarantine also have to download an app, which allows officials to track those who break isolation. A handful of European governments (Spanish, Romanian, Slovakian and Polish) have embraced the South Korean approach and have developed their own app.
The Trump administration is reportedly considering cellphone surveillance as a way to track the spread of COVID-19. However, it’s unlikely that South Korean surveillance methods would be effective in the U.S at this point. As Spencer Ackerman explained in the Daily Beast, pandemic surveillance is not like counter‐terrorism surveillance in key regards:
Coronavirus surveillance isn’t like the kind of surveillance used to track, say, terrorist suspects. Public health officials seeking to arrest an outbreak start with a positive test of a patient and then work outward to find and warn people the patient was in close contact with. Counterterrorism surveillance, in practice, tends to gather everyone’s data first—often without warrants—analyze it for connections to targets of interest (a practice known as contact chaining), and then either purge it or keep it.
But according to epidemiologists, America is unlikely to replicate South Korea’s success. South Korea (and China) tested extensively for COVID-19 early on. That was the key step for being able to identify and isolate those infected before they spread the disease further. No such thing occurred in the U.S.—and accordingly, domestic pandemic surveillance in late March 2020 would resemble the anticipatory guesswork of counterterrorism surveillance, more intrusive than effective.
That surveillance tools and methods won’t be effective hardly means they won’t be deployed. Hospitals across the U.S. are set to experience an influx of patients that is beyond their capacity. This will undoubtedly increase criticism of the government. Amid frustration and anxiety we should expect officials to embrace a more aggressive “do something” approach. The Trump administration already has relationships with companies such as Palantir, which prides itself on building tools ideal for mass surveillance.
American lawmakers and officials haven’t only considered increased surveillance in response to COVID-19. They have told citizens and residents across the country to stay at home, and businesses have been forced to close or make dramatic changes to how they operate.
When local officials announce restrictions on freedom we should be sure to ask them what conditions will justify an end to such restrictions. Earlier this week, Washington, D.C. Mayor Muriel Bowser issued an order requiring all “non‐essential” businesses to close until April 24, 2020. However, the order notes that the deadline could be “extended, rescinded, superseded, or amended” by another order.
Those of us enduring these imposed periods of isolation deserve to know when the isolation will end. How will officials define the end of this ongoing pandemic? The end of a war is easy to define. The end of a pandemic isn’t. If we are to endure restrictions on our freedoms in the name of public safety the least officials can do is tell us when it will all be over.
Increased surveillance and restrictions on movement need not be the only options officials consider. Since the outbreak of the pandemic, my colleagues have been writing and discussing the numerous policy changes that could have allowed more people to access COVID-19 tests more quickly and allowed for a more efficient response to the pandemic (visit this link to find out more). Among the few silver linings of the current crisis is the possibility that lawmakers and regulators will learn valuable lessons about how to respond to the next pandemic.
Lockdowns, curfews, and increased surveillance are infringements on freedom, but civil libertarians should be prepared to concede that such measures can sometimes be justified, if only in rare and extreme circumstances. But accepting that such measures may be necessary should not make us complacent. We should continue to raise concerns and highlight policy changes that could alleviate the effects of the pandemic. In addition, we should ask lawmakers tough questions about why specific pandemic measures are necessary, why they think such measures will be effective, and when the measures will be abandoned.
According to new reports, Treasury Secretary Steven Mnuchin has indicated that the U.S. government will take an equity stake in the airlines as a condition of the industry’s $58 billion bailout from the $2 trillion COVID-19 relief package.
From one perspective, the equity stake might seem appropriate; if the airlines’ shareholders get a huge transfer from the government, then shouldn’t taxpayers get repaid (from selling appreciated shares) once the airlines recover?
From a different perspective, however, the equity stake is troubling; it makes government a direct owner of a private industry. Crony capitalism and regulatory mischief are sure to follow.
The way to reconcile these concerns is to skip the bailout.
Yes, the airlines can claim, with some reason, that government contributed to their misfortune (e.g., by cancelling travel to other countries).
But many industries can make similar claims. Setting appropriate compensation across sectors would be difficult, expensive, and likely generate huge inequities based on which industries have the most political clout.
Why not avoid all these messy problems and risks and let the taxpayers keep their money?
On March 24 Arizona Governor Doug Ducey issued an executive order allowing CRNA’s (Certified Registered Nurse Anesthetists) to practice independently of physicians or surgeons, thus adding needed personnel to the health care work force during this public health emergency. Guidelines issued by the Centers for Medicare and Medicaid Services state that nurse anesthetists should be “supervised” by a physician, thus preventing these well‐trained specialized nurses from providing anesthesia independently while freeing up physician anesthesiologists so more patients can receive care. Because these CMS guidelines are listed as “optional,” the Governor decided that Arizona will opt out. The press release from the Governor’s office stated:
“Arizona’s hospitals and medical professionals need all the help and resources they can get right now,” said Governor Ducey. “I am confident that this exemption will enhance access to high quality care, provide additional options to our rural hospitals, and is in the best interest of the citizens of Arizona.”
Arizona joined 17 other states that have already opted out of these federal guidelines.
As we are seeing so frequently as the COVID-19 pandemic unfolds, regulations on the state and federal level stand in the way of needed care, equipment, drugs, and tests. In our federal system states have power over occupational licensing and determining the scope of work in which a licensee may engage. In the matter of the licensed health care professions, this is referred to as “scope of practice.”
For decades state legislators have witnessed turf battles among the various health care professions. Nurse practitioners and physicians’ assistants, for example, seek to practice independently of physicians and to expand their scope of practice to meet their level of training. This is usually met with resistance from medical doctors who argue NPs and PAs lack the necessary training to safely provide care beyond a narrowly‐defined scope. The degree to which the scope of practice of NPs and PAs has been widened varies from state to state. Broadening their scope would help address the current health care crisis. But once the crisis passes, maintaining the broadened scope would give people more health care options and access, particularly in underserved rural areas.
Similarly, state capitals witness battles between optometrists, who seek to expand their scope to include prescriptive authority and simple surgical authority, and ophthalmologists who believe such expansions are dangerous.
In most states doctorate‐level clinical psychologists are not allowed to prescribe psychiatric medications to their patients, even if their graduate degree program included extensive training in psychopharmacology. Therefore, patients who need medication to assist in their psychotherapy must go through the added expense in time and money to see a physician—usually a psychiatrist—for a prescription while continuing to see their psychologist. Guam was the first U.S. territory to permit psychologists with psychopharmacology training to prescribe to their patients. Currently five states—Idaho, Illinois, Iowa, New Mexico, and Louisiana—also allow appropriately trained psychologists to prescribe.
Pharmacists are another health care profession seeing its scope gradually expanded. All 50 states currently allow pharmacists to vaccinate patients, with states differing on age limitations and types of vaccinations allowed. Rhode Island and Oregon allow pharmacy technicians to perform vaccinations. Several states now allow pharmacists to prescribe oral contraceptives, and last fall California became the first state to allow pharmacists to prescribe HIV pre‐exposure prophylaxis (PreP) and post‐exposure prophylaxis (PEP). Pharmacists’ scope of practice can be expanded to include a host of services, including tuberculosis skin testing and interpretation; testing and administering prescription meds for patients with influenza and other viral illnesses or common bacterial infections like strep throat; non‐sedating or low‐sedating antihistamines, corticosteroids, and decongestants; and extending routine non‐controlled chronic medication prescriptions for an additional 30–60 days.
Modern technology lets pharmacist provide many of these services remotely using vending machines in kiosks. In some states, regulations stunt the growth of this option.
Most states now allow direct‐to‐consumer lab testing, saving patients the time and inconvenience of a doctor visit and promoting self‐care and health awareness. Unfortunately, New York, New Jersey, Massachusetts, Rhode Island, and Maryland prohibit or restrict such activity.
On the dentistry side, dental therapists are an emerging profession analogous to physician’s assistants or nurse practitioners. These trained professionals serve underserved communities today in Alaska, Minnesota, Washington State, Arizona, Maine, Vermont and others. Unsurprisingly, lawmakers considering dental therapy legislation receive pushback from the dental profession, which claims to be concerned about patient safety.
In every one of the examples above—and the list is not exhaustive—resistance to reform usually comes from incumbent professions that would lose market share when health care consumers are given more choices. Every example also provides greater health care choice and access to patients. And the added competition that results should help drive down prices.
This unfortunate pandemic provides us with many lessons on how to streamline and improve the provision of goods and services to the public, and how regulations stand in the way. Many regulatory obstacles are being temporarily set aside on all levels of government. When this crisis passes, policymakers should not rush to put those obstacles back in place, only to wait until the next crisis to remove them again. Rather, they should use these lessons as a springboard to regulatory reform.