On May 19, 2020 United States President Donald Trump issued an executive order that directed government agencies to target agencies to target regulations “that may inhibit economic recovery” from the COVID-19 pandemic.
In the EO, President Trump highlighted his intent to “combat the economic consequences of COVID-19 with the same vigor and resourcefulness with which the fight against COVID-19 itself has been waged.” He also called for agencies to rescind, modify, waive, or provide exemptions from regulations and other requirements that “may inhibit economic recovery, consistent with applicable law and with protection of the public health and safety, with national and homeland security, and with budgetary priorities and operational feasibility.” Additionally, agencies should provide guidance on what the law requires when it comes to businesses (especially small businesses) reopening.
Compliance Assistance for Regulated Entities
Under the EO, agencies, including the Department of Health and Human Services (HHS) and the Department of Justice (DOJ) are directed to accelerate pre-enforcement ruling processes to assist entities with compliance. The agencies are also asked to consider using enforcement discretion against those who have made a good faith effort to follow regulatory requirements. Additionally, failure to adhere to guidance shall not alone be basis for an enforcement action by a Federal agency.
Review of Regulatory Response
Heads of all agencies are asked to review all regulatory standards that have been temporarily rescinded, suspended, modified, or waived during the public health emergency, any actions taken in furtherance of this EO, and any other regulatory flexibilities implemented in response to COVID-19. While reviewing those standards, the agency head should consider whether if the change was made permanent, it would promote economic recovery.
The Office of Management and Budget (OMB) is responsible for monitoring the agencies’ compliance with the EO and will issue a detailed implementation memo for this executive order in the next few weeks. To that end, agencies must report their plans on which regulations to cut or keep to the OMB, the Assistant to the President for Domestic Policy, and the Assistant to the President for Economic Policy.
Advocacy Group Requests
In April, Centers for Medicare & Medicaid Services (CMS) Administrator Seema Verma suggested that some health regulations enacted during the public health emergency may be here to stay, especially regarding new flexibilities for telehealth.
The Association of American Medical Colleges recently asked CMS and Congress to make the expanded use of telehealth (and supporting reimbursement levels) in Medicare permanent, or to extend the temporary regulations for at least a year to allow for permanent changes through notice and comment rulemaking.
Other groups may come forward with similar requests in response to this EO, though Administrator Verma has already indicated that CMS will consider program integrity when contemplating permanent regulatory changes.