Week in Review

IN THE NEWS

• To address the impact of the coronavirus on the U.S. health care system, the Centers for Medicare and Medicaid Services (CMS) issued temporary waivers that allow health systems to deliver care and services to uninfected patients at locations other than main hospital facilities such as hotels and dormitories—an effort the federal agency is calling “Hospitals Without Walls.” The new rules also seek to expand the health care workforce by permitting hospitals to hire local health professionals to address the increased volume of patients. CMS Administrator Seema Verma called the relaxation of current health care delivery requirements an “unprecedented” effort to allow frontline providers to “focus on patient care in the most flexible and innovative ways possible.” 
• The Trump Administration finalized an interagency rule cutting back on Obama-era standards for fuel economy and vehicle emissions. The new rule will require automakers to increase the stringency of vehicle emissions in new models at a significantly lower rate than what was previously required. The U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler defended the move, stating, “Our final rule puts in place a sensible one national program that strikes the right regulatory balance that protects our environment, and sets reasonable targets for the auto industry. This rule supports our economy, and the safety of American families.” A former senior engineer and policy adviser at EPA said that the rule “will be an environmental and economic disaster.”
• In anticipation of Wisconsin’s upcoming primary election in April, Wisconsin Governor Tony Evers called on the state’s legislature to send absentee ballots to registered voters in Wisconsin. The Governor’s request to continue the election process comes amid four federal lawsuits in Wisconsin district courts demanding changes to the primary process—one of which seeks to postpone the election to June—in light of the coronavirus pandemic. With over 600,000 voters having already submitted an absentee ballot request for the April primary, Governor Evers asserted, “My focus has been and will continue to be ensuring everyone has the opportunity to cast their ballot in the upcoming election.” 
• New York State Governor Andrew M. Cuomo issued an executive order stating that hospitals must allow patients giving birth to have a non-febrile support person present. The order follows a decision by two major hospital systems to exclude all visitors for patients giving birth during the coronavirus pandemic. The order tracks a New York State Department of Health guidance document that “requires” hospitals to permit one support person to be present during the labor, delivery, and postpartum periods. That guidance replaces an earlier document in which the Department asserted that it “considers” one support person to be essential in those periods. Shortly before the release of the order, Melissa DeRosa, Secretary to Governor Cuomo, said, “Women will not be forced to be alone when they are giving birth. Not in New York. Not now, not ever.” 
• The U.S. Court of Appeals for the Fifth Circuit temporarily lifted a court order blocking the state of Texas from enforcing a ban on abortion services during the coronavirus pandemic. The ban classifies abortions as non-essential surgeries to be suspended as part of the state’s coronavirus response. Texas Attorney General Ken Paxton reportedly thanked the court for its “immediate and careful attention to the health and safety needs of Texans suffering from the spread of COVID-19.” The Center for Reproductive Rights, which sued Texas over the prohibition, said, “We won’t stop fighting.” 
• The U.S. Securities and Exchange Commission (SEC) announced temporary regulations aimed at providing relief to certain entities that issue securities by extending the current filing deadlines related to Regulation Crowdfunding and Regulation A exemptions. In addition to relaxing compliance requirements, the rules allow new entities applying to the SEC’s public database to gain access to the system without submitting a Form ID—the typical notarized document requirement. Amid historic losses for global stock markets, the SEC’s temporary final rules are one of several of the agency’s efforts to address the impact of the coronavirus on market participants. 
• The U.S. Food and Drug Administration (FDA) requested manufacturers of the drug ranitidine—commonly known as Zantac—to withdraw all over-the-counter and prescription ranitidine medications from the U.S. market immediately. FDA’s demand follows its ongoing investigation of the ranitidine drugs, which revealed the presence of a carcinogenic contaminant that developed due to increased temperatures in storage conditions. Although FDA’s sample testing of the drugs detected no impermissible levels of the impurity, the director of FDA’s Center for Drug Evaluation and Research, Janet Woodcock, said of the withdrawal request, “Since we don’t know how or for how long the product might have been stored, we decided that it should not be available to consumers and patients unless its quality can be assured.”
• The U.S. Court of Appeals for the Ninth Circuit affirmed an order barring the Trump Administration from denying bond hearings to asylum seekers. In its decision, however, the judicial panel denied the lower court’s finding that bond hearings must take place within seven days and ordered the lower court to scrutinize the nationwide scope of the injunction. In her dissent, Judge Bridget Bade challenged the lower court’s authority to issue a nationwide injunction and separately found the injunction to be overbroad from a due process perspective.

WHAT WE’RE READING THIS WEEK

• In a new report for the Center for American Progress, Rebecca Cokley asserts that policy responses to the coronavirus crisis are failing the disability community. According to Cokley, the director of the Disability Justice Initiative at the Center for American Progress, families of people with disabilities may need paid leave to enable them to assume a caretaker role now that personal care attendants may be unavailable. Cokley also recommends raising or eliminating asset limits for social welfare programs to ensure that a federal cash benefit would not disrupt other benefits. Because individuals with disabilities may be vulnerable from both economic and health perspectives, Cokley concludes that “Congress has an opportunity to propose innovative solutions that would not just provide lifesaving supports but also help flatten the curve.” 
• Throughout its over century-long existence, the appellate review process for resolving disputes between citizens and federal agencies has gone largely unchallenged. But in a recent paper for the C. Boyden Gray Center for the Study of the Administrative State, Professor Michael S. Greve of the Antonin Scalia Law School at George Mason University argues for an alternative model of independent administrative courts—a system that is currently used in other parts of the world, such as Germany. Although Greve recognizes the constraints that the U.S. Constitution and legal traditions place on adopting a new federal administrative court system, he suggests incorporating some of the key features of this model into the current U.S. appellate review regime nonetheless.
• How should regulators balance automation and human review in social security matters? In a forthcoming article in the Australian Journal of Social Issues, Terry Carney of The University of Sydney asserts that, in social security matters, “particular attention should be given to avoiding discrimination against citizens who are technology poor or otherwise vulnerable.” Due to the so-called digital divide, individuals subject to automation in primary decision-making or review of social security matters may be particularly aggrieved by any deficiencies in artificial intelligence, according to Carney. Automation in social security decisions meaningfully changes both operational design and evidentiary form to the detriment of technologically less capable users, Carney says.

FLASHBACK FRIDAY

• In a 2019 essay for The Regulatory Review, physician Travis Carpenter of St. Joseph’s Health Centre in Toronto considered how Canada’s experience with universal health care can provide guidance to the United States. Carpenter explained that, as with the U.S. Constitution, neither the Canadian Constitution Act nor Canada’s Charter of Rights and Freedoms grant citizens a fundamental right to health care, but a shared cultural belief that health care is a human right prompted legislative efforts to establish a health care entitlement for all Canadians. Carpenter noted, however, that the Canadian single payer system has challenges for individuals who do not have legal residency, raising a question of whether health care in Canada is truly understood as a fundamental right for all. Instead of framing health care as a right, Carpenter recommended that the United States focus its efforts on creating an insurance system that covers all Americans.