In his campaign for Governor last year, Charlie Baker promised us “a state government that gets out of the way.” And it seems that’s what we are getting.
Right after taking office, Governor Baker announced that one of the ways that state government would be getting out of the way was by not issuing any new regulations for some time. A “regulatory pause” by Executive branch agencies would “enable the administration to implement new guidance that regulations going forward communicate a clear, desired and effective goal.”
This pause was not a surprise. You might say that the notion that regulations are somehow adverse to good government started with Charlie Baker, the Secretary of Administration and Finance as well as the “heart and soul” of the Weld administration. Governor Weld issued the first executive order requiring agencies to pare down their regulations in 1996 (“WHEREAS, the inefficiencies and intrusions resulting from excessive government regulation constitute an unreasonable financial and personal burden on residents of the Commonwealth”). Since then, it has become fashionable in Massachusetts for our governors to begin their terms in office with a similar reproof of the idea that government ought to be in the business of regulating business, as Mitt Romney did in 2003 and Deval Patrick did in 2007.
The right-wing American Legislative Exchange Council offers model legislation for states to trim their inventory of regulations. And our state Legislature got in on the act in 2010, prohibiting agencies from putting out new regulations until they had thoroughly analyzed the potential effect on small business and requiring all agencies to review the need for all of their regulations every 12 years.
Which brings us to Sunday’s Globe article on Baker’s further pursuit of regulatory cutbacks in a new Executive Order. The moratorium on new regulations he announced in January is to continue until further notice. And there’s lots more. Baker has often likened government regulations to the junk that accumulates in your basement and which, in the interests of good housekeeping, you need to clean out every so often (as the Legislature had already concluded in mandating a top-to-bottom review every twelve years). The Executive branch agencies are going to be very busy making sure that every state regulation passes a lengthy series of tests before it may continue to be in effect. The most controversial of these tests is that no regulation may exceed what the federal government requires:
Baker, in a March 31 directive to all state agencies, is requiring a yearlong review of nearly all state regulations, with a mandate that none should exceed federal requirements, which in many cases are far less stringent than the state’s. He wants only regulations that do not “unduly and adversely affect Massachusetts citizens and customers of the Commonwealth.”
This apparently means that if the federal government is not ready to say that the chemical perchlorate, a persistent, inorganic anion found in industrial pollutants that interferes with thyroid function if ingested in significant quantity, is unsafe, then Massachusetts will stop saying it is unsafe and will rescind the current regulation (in place since the Romney administration) capping the amount of perchlorate that safe drinking water may contain. The people of Massachusetts, especially those living in the towns where perchlorate has been found in the drinking water will be on their own, happily unburdened by excessive regulation.
Government regulations are presumptively the enemy, except of course when something goes badly wrong. Then everybody wants to know why government did not prevent the catastrophe from happening — why was nobody minding the store?
Let’s take the example of the New England Compounding Center, the pharmaceutical operation that sold contaminated steroid drugs causing meningitis which led to the deaths of 64 people across the country, caused 750 others to fall ill, and which resulted in second-degree murder charges against an owner and one of the pharmacists.
The Legislature responded to that disaster by recognizing that oversight of the compounding pharmacy industry was inadequate and by passing a law directing the Board of Pharmacy to regulate these pharmacies more strictly. The Board was told, for example, to determine which drug preparations require special training or equipment to prepare in a safe manner, to report adverse drug events in a database available to the public, and to set new penalties for pharmacies that do not comply with the new law.
The legislation passed unanimously, without discussion of whether it might be excessively burdensome or detrimental to the state’s competitiveness. The House Minority leader told the State House News Service that “everybody recognizes the terrible situation that happened and see this bill as progress on that front. I think the bill is an important step forward to bring some accountability and clarity to compounding pharmacies.” In that conversation he apparently did not mention “An Act Reforming the Regulatory Process to Promote Job Growth,” the bill that he files each session that would allow a legislative committee to bottle up any proposed regulation for up to two years in the interests of making Massachusetts a more competitive place to do business. (You may have been unaware that the Legislature has expertise in such matters as acceptable perchloride concentrations in groundwater and the meningitis-free preparation of steroid drugs.)
And so, speaking of the increased regulation and oversight of the compounding pharmacy industry, what’s up with that?
The Herald reported last week that “the state agency that oversees compounding pharmacies is still in disarray two years after a deadly meningitis outbreak, failing to inspect facilities, allowing dirty labs to stay open and rarely publicizing recalls of possibly tainted meds.” Any disarray may have to do with the fact that Board of Registration in Pharmacy has not yet issued any of the regulations that the Legislature ordered. The minutes of the Board meetings show that the regulations received some discussion last year during Governor Patrick’s administration, but progress was slow, in part because of the Legislature’s requirement that no new regulation can take effect until the agency has prepared a “small business impact statement,” which includes, among other things, an estimate of the number of small businesses subject to the proposed regulation, and an analysis of whether the proposed regulation is likely to deter or encourage the formation of new businesses in the commonwealth.
And now with Governor Baker’s new Executive Order in effect, we won’t be seeing those pharmacy regulations anytime soon. We have other, higher priorities, like getting state government out of the way. And that’s going to be keeping our state agencies very busy — cleaning out their basements.