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Coronavirus ‘guidelines’ breaking the law

Empower Wisconsin | April 16, 2020

By Lucas Vebber and Daniel Suhr 

The scandal de jour is the flip-flop from Gov. Tony Evers’ administration on “window visits” to elderly and infirm relatives in long-term care facilities during the Covid-19 pandemic. On Monday, the Board of Aging & Long Term Care issued a memorandum with a recommendation barring the practice, reversing a previous memo from March 20th. A day later, after a public outcry, the Board reversed itself again and issued a third memo permitting the practice again. The back-and-forth actions of the board illustrate the danger of “guidance” issued by memorandum without transparency, accountability, executive responsibility, or legislative oversight. 

In the wake of Covid-19 we’ve seen an explosion of regulating-by-guidance from the Evers Administration, stretching across virtually every state agency. All of it is a failure to follow Wisconsin’s administrative procedures act, which has a specific provision in place for circumstances like this: emergency rulemaking. Emergency rulemaking allows a state agency to promulgate a regulation without many of the otherwise required notice, hearing and publication procedures.

The Department of Health Services has a webpage with 22 memos with Covid-19 “guidance” for local health departments, hospitals, jails, and EMTs. The Department of Health Services has a separate page of “guidance for homeless and domestic violence shelters” with specific requirements for shelter administrators, and another for long-term care facilities.

In a close second place is the Department of Financial Institutions, which has issued guidance memos and “interpretive letters” to Banks, Credit Unions, Licensed Financial Services, Mortgage Bankers, Notaries, Securities professionals, Debt Collectors, and Payday Lenders. The one for debt collectors, for instance, warns that “practices that may have been typical or customary under normal conditions may be deemed harassment under conditions of a global pandemic.” In other words, your regulator is moving the legal goalposts on you during this crisis. 

The Department of Safety & Professional Service issued a guidance memorandum on telemedicine which said that “(w)hile (the telemedicine) rule applies only to the Medical Examining Board, many of the concepts in this rule may be informative to credential holders in other professions.” In other words, by law this rule only applies to doctors, but you nurses and therapists should follow it, too. Most oxymoronically, the Department of Children and Families issued a “Guidance Order” with very specific “guidance” and “recommendations” for child care facilities.  

We are not here to argue anything is wrong with the policy choices made in these documents; indeed many may provide the type of regulatory relief that is sorely needed, especially right now. Ours is a purely procedural, legal point — all of this regulation-by-guidance should have been done by emergency rulemaking.  It is both unfair and illegal to issue mandates on the regulated community by guidance. It creates legal uncertainty for citizens, increases their exposure to lawsuits, and undermines basic democratic principles. Emergency rulemaking is a preexisting statutory scheme that preserves transparency, accountability, and due process while providing nimble, fast response times for policy-makers. 

An emergency rule, by definition, is a rule that must be quickly promulgated because “preservation of the public peace, health, safety, or welfare necessitates placing a rule into effect” faster than the traditional rulemaking process would allow. This process ensures that there is still minimal oversight and public involvement, while still allowing agencies to quickly react to emergency situations. The emergency rulemaking process stands in stark contrast to the Evers administration’s regulating-via-guidance documents, tweets, and press releases that we’ve seen in recent weeks.

The emergency rulemaking process is fairly straightforward, and allows agencies to promulgate new regulations without abiding by the statutorily mandated notice, comment and publication requirements for regular rules. The emergency rulemaking process goes like this: (1) the agency drafts a scope statement, which must be approved by the governor and sent to the legislature and to the Legislative Reference Bureau for publication in the administrative register; (2) the agency can hold any public hearing on the scope statement, if directed by the legislature; (3) the agency will draft the regulation; (4) the agency sends the draft regulation to the governor for approval; (5) and finally, the agency publishes the rule. The rule is effective immediately upon publication, unless it states otherwise. The whole process can take less than two weeks from start-to-finish, and the rule is valid for 150 days, unless extended by the legislature.

Once published, the rule is subject to legislative oversight. For example, the legislature could choose to suspend the rule at any time, or could simply allow it to expire at the end of its 150 days. The agency is also required to prepare a fiscal estimate for an emergency rule – adding to transparency. If the rule will have a significant effect on the private sector, the fiscal estimate must include “the anticipated costs that will be incurred by the private sector in complying with the rule.” 

Additionally, the emergency rule sets forth a clear policy that both the agency and the public can follow. In fact, agencies must publish a “plain language” analysis of the rule — to clearly explain what the emergency rule does. Agencies must still hold a public hearing on the emergency rule, within 45 days of promulgating it — this ensures public involvement and helps avoid any unintended consequences. 

State agencies should take notice that the regulations they are putting out in memo form may actually be rules, and rules are required to be promulgated. In fact, state law provides that if the legislature determines any of these memos are rules, it can require the agency to promulgate those policies as emergency rules within 30 days. This is a powerful tool the legislature has to check runaway agency authority.

While the regular promulgation process can be time consuming, the emergency rulemaking process is the legal process for agencies to quickly turn out regulations responding to a crisis.

Lucas Vebber is deputy counsel and director of regulatory reform at the Wisconsin Institute for Law & Liberty. Daniel Suhr previously served as deputy legal counsel to the governor, where he was responsible for rules.

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