HHS withdraws rule on retrospective review of regulations 

HHS withdraws rule on retrospective review of regulations 
May 26, 2022

The Department of Health and Human Services today withdrew a Trump Administration rule that would require the agency to assess periodically each regulation to determine whether it has a significant economic impact on a substantial number of small entities and, if so, determine whether to retain, modify or eliminate the regulation. HHS last October proposed withdrawing the rule, which was scheduled to take effect Sept. 22 after a previous one-year delay. AHA supports withdrawing the rule because it does not provide an adequate mechanism for obtaining public input on the substance of the regulations reviewed. Plaintiffs last year filed a lawsuit seeking to overturn the rule. 


Restoring Tunisia’s democracy requires pressure — and an off-ramp for Kais Saied

By Sharan Grewal

The next two months in Tunisia will be critical for determining whether President Kais Saied consolidates power, or yields to a renewed democracy. On July 25, 2022, on the one-year anniversary of Saied’s presidential coup, Tunisia will hold a referendum on a still-to-be-drafted new constitution that Saied is hailing will inaugurate a “new republic.” If that constitution enshrines the near-absolute powers Saied has enjoyed over the past year, Tunisian democracy as we know it will be over. Avoiding that fate will require not just ramping up domestic and international pressure on Saied, but also providing him an off-ramp.

Saied’s current roadmap will see him draft the new constitution near unilaterally. Excluding all political parties and most civil society organizations, he has invited just a handful of law professors and unions to serve on two purely advisory councils, and even most of them have refused. Nonetheless, Saied is pressing forward, promising the draft of the new constitution on June 30. Such an approach is certain to create a constitution tailor-made for Saied, one that empowers the presidency with few checks and balances. One of his justifications for seizing power, after all, was his complaint that the 2014 constitution had too many “locks” on the president’s power.

The end of the honeymoon

Thus far, Kais Saied had been able to rely on his popularity to ram through his unilateral decrees — but it is less clear whether he will be able to do the same with the constitution. Saied’s honeymoon period is ending. The masses, fed up with economic hardship and corruption, do not view a new constitution as a priority. Not surprisingly, Saied struggled to mobilize even 6% of the population into participating in his online consultation over the constitution this spring. That bodes ill for his ability to mobilize large numbers to actually vote yes on July 25, especially since he still has no formal political party or movement.

Meanwhile, every organized force is gradually turning against him. Even forces that adopted a neutral or cautiously positive tone last July, such as the Nobel Peace Prize-winning Tunisian General Labor Union, are now more forcefully rejecting his roadmap. Every major political party and most civil society organizations have as well. If all of these forces unite in voting no, they could pose a serious threat of blocking his new constitution.

The opposition, of course, has had its challenges in unifying. The secular-Islamist divide runs deep, and none of the secular parties want to be publicly seen as working with Ennahda, the largest party in the now-dissolved parliament. For them, “Ennahda is radioactive,” as one secular leader told me. Still, uniting around voting no is much easier than uniting around an alternative vision.

Some political parties have indicated that they might boycott the referendum instead, to undermine its legitimacy. This would be a strategic mistake. Nothing about the past year indicates that Saied is remotely interested in the legitimacy of his roadmap, just in creating a new system that enshrines his rule. Threatening to vote no would provide the opposition much more leverage than boycotting.

If a credible threat materializes that his constitution might fail, Saied’s true colors will in turn be revealed. He may come to the table, recognizing that he needs to secure the support of at least some political parties in order to pass his constitution. But alternatively, if he is truly a dictator, he might resort to repression and rigging in order to pass his constitution. And thus the question becomes: how to avoid that fate, and incentivize Saied down the path of compromise?

The need for an off-ramp

Here, Saied needs an off-ramp, one that attracts him toward compromise, rather than repression. What the last 10 months reveal is that the one thing Saied cares about most is his legacy: He wants to be the one to create a new political system. He wants to be hailed in 50 years like Habib Bourguiba is today for having created a new republic. The key is letting him have it.

At the same time that the opposition threatens to vote no on a unilaterally-drafted constitution, they must also signal to Saied that they would vote yes if their voices are heard in the revision. That will require a bit of humility on their part: They must acknowledge that while the 2014 constitution they created was quite good, it did have its flaws. They must be willing to join with Saied and work together to improve it. They must recognize that the divided, semi-presidential system did not work, and shift instead to a parliamentary or, if necessary, presidential one. Either way, they must ensure sufficient checks and balances. They should remove the state of emergency clause, for instance, that led to this power grab in the first place, and empower and enshrine the independence of the judiciary, electoral commission, and anti-corruption commission, among other constitutional bodies.

That way, all sides can still come out of this crisis with a win. Saied can say he created a new republic, and a legacy for himself for when he leaves office. Meanwhile, the political parties will have saved Tunisia’s democracy, and perhaps even revitalized and improved it.

The role of international pressure

Still, even if the opposition provides such an off-ramp, there is no guarantee Saied takes it. He might instead slam the gas pedal of repression. This is where the international community can play an important supporting role. The United States and its European partners must signal that any repression or rigging of the referendum will be met with an immediate aid cut and suspension of talks with the International Monetary Fund. The costs need to be prohibitively severe, such that Saied’s only option is the off-ramp of compromise.

Critics might respond that it is better to let Kais Saied pass his new constitution, either so that his project can be tried and failed and thus delegitimized, or so that the country can move on to its more important economic challenges. But this approach is risky: If Saied consolidates his rule through a new constitution that provides no real checks on his power, the options for reining him in down the road narrow considerably. The best option today is for all sides to come to the table and consensually draft a new constitution that gets the country back on its democratic path.

Civil rights groups help put privacy legislation within reach

By Cameron F. Kerry

Even before the death of George Floyd added urgency to issues of racial equity, it has been clear that federal privacy legislation cannot and should not pass without a provision bringing to bear civil rights laws on how personal information is used. This is why a May 25th, 2022 letter from major civil rights organizations, joined by a broad coalition of civil rights, consumer, and privacy organizations totaling 57 signers, is a big deal. It signals that federal privacy legislation “during this session” of Congress is priority for civil rights organizations, and, with support from a spectrum of advocacy organizations, it frames elements that are included in existing bills and can garner bipartisan support.

I have written previously that, based on Brookings convenings of various cross-sections of stakeholders and numerous conversations with individual ones, it was clear privately that a broad swathe of stakeholders both understood the bargains needed to pass privacy legislation and were ready to make them. Now, the May 25th coalition letter makes this posture public on behalf of most of the organizations on the civil society side of the privacy debate.

The letter focuses on civil rights online and was spearheaded by the Leadership Conference and the Lawyers Committee, which have been the point organizations for civil rights language, but it also includes bullet points covering additional major elements of privacy legislation, several of which are addressed in proposals from both Democrats and Republicans. The letter effectively acknowledges as much, stating: “[t]here are many avenues to enacting comprehensive data protections.”

Broadly, the civil rights coalition is calling on Congress to enact privacy legislation “[p]rohibit[ing] [the use of] personal data to discriminate on the basis of protected characteristics.” This simple framing resembles not only an abbreviated version of the civil right provision in a 2019 bill from Senate Commerce, Science & Transportation Committee chair Maria Cantwell (D-WA) but also language in a draft bill from Republican staff of the House Energy & Commerce Committee in November of 2021. The latter was surprisingly well-received among civil rights groups, and since then had provided a basis for bipartisan discussion. If Republicans and civil rights groups can converge on this issue, that is a huge step toward privacy legislation.

The list also includes “[p]reserv[ing] state civil rights laws and other types of state laws that are important for the protection of consumers and marginalized communities.” This implies federal preemption of other state legislation — a notable step away from what has been the position of numerous organizations involved, and of bills like the 2019 Cantwell legislation that federal law should allow states laws that go further in protecting privacy. The coalition letter opens the door for preemption of inconsistent state laws with certain carve-outs, along the lines of the approach recommended in the June 2020 Brookings report on bridging the gaps in the federal privacy debate.

Another substantive issue in the coalition’s letter is a right to bring private lawsuits. That is a sticking point for some in industry but, at a Senate hearing in September of 2021, both industry witnesses and Republican senators opened the door to a private right of action “with guardrails.” The May 25th coalition letter is not specific about the scope of a private right of action, but there are reports of progress toward bipartisan agreement on some form of private action.

Now, it’s up to Congress. Can legislators show the same kind of pragmatism as these advocacy groups?

At this point, several bills from both sides of the aisle propose better, stronger privacy protections than proposed legislation of the past — including the 2012 Obama Consumer Privacy Bill of Rights that I helped frame. And all signs, from whatever signals emitted from what has been a tight-lipped negotiation among committee leaders in both houses, indicate that negotiators have bipartisan agreement on most of the points covered in the coalition letter. The reported sticking points are on other issues that have been peripheral to the privacy debate.

Congress has never been this close to a comprehensive privacy bill capable of passage, but the call to action from civil rights nudges it even closer. It would be a shame to miss this opportunity to put in place long overdue protections of individual privacy, including protection against discrimination in the use of personal information. Another one may not come for a long time.

AHA comments on IRS proposal to fix marketplace ‘family glitch’ 

AHA comments on IRS proposal to fix marketplace ‘family glitch’ 
May 25, 2022

AHA today commended the Internal Revenue Service for proposing to revise its methodology for assessing whether employer-sponsored coverage is affordable for family members, which affects whether individuals qualify for a premium tax credit for coverage purchased through a health insurance marketplace.
“The AHA has long advocated for a fix to the current methodology for assessing affordability of employer coverage for family members, often referred to as the ‘family glitch,’ which is estimated to affect about 5 million individuals,” AHA wrote. “We commend the IRS on proposing to revise this regulation and improve access to health insurance coverage for millions of American families. … While outside of the scope of this regulation, we urge the Administration to address in the future two critical issues that undermine the comprehensiveness of coverage: substandard coverage and unaffordable and confusing cost-sharing structures.” 


Seen and unseen effects of COVID-19 school disruptions

By Mohamed Ihsan Ajwad, Simon Bilo

On March 11, 2020, the World Health Organization declared COVID-19 a pandemic. Underlining the seriousness of the situation, most countries shut their schools for months to minimize the spread of the coronavirus and to prevent hospital overcrowding. Two years later, students and teachers are returning to in-person education with some trepidation about the spread of coronavirus variants.

Educators, policymakers, parents, and students have worried about the impact of school closures on learning and socialization. World Bank Group President David Malpass said that the “pandemic has brought about the largest loss of human capital in living memory and the worst education crisis in a century.” Unfortunately, this large human capital loss could translate into large labor market impacts in the future.

The unseen nature of education losses

In many ways, the labor market impacts will be unseen. None of the currently affected students will look at their paystubs in the future and see a pandemic tax reduction. No national income account will reflect the size of the loss, even while it quietly accumulates over time. Yet the loss will be no less real for being unseen. French economist, politician, and journalist Frédéric Bastiat believed that it was one’s social responsibility to point out the unseen losses in public policy debates.

Fulfilling our social responsibility by measuring the future unseen impact of the pandemic-related school closures is not easy. Some of the main measurement difficulties come from the time lags between education shocks and their consequences—an issue identified by Alfred Marshall as long ago as 1890. The results of the education decisions today, whether made by policymakers or families, are by their nature properly measurable only after a long time, at which point often very little can be done to correct past mistakes. In other words, one needs to either be very patient or have an ingenious research design to measure the impacts.

Estimating the cost of schooling disruption: Top down and bottom up

Researchers often use models with a small number of variables to quantify the likely impact of COVID-19-related school closures on people’s future incomes. This top-down approach usually builds on informed assumptions about average lost years of schooling due to the pandemic, estimated returns to schooling, and other parameters, such as the mitigation effects of remote schooling. The approach reduces a complex world to rather simple aggregate models. But the complex features are often unknowable, making the top-down approach the best possible option for simulating future impacts of a shock (two examples of studies using this approach: one; two).

The key problem with the top-down approach is that it ignores bottom-up feedback effects: the mitigation factors that parents and students adopt when schools close. Even under normal conditions, families play a big role in educating children. But under extraordinary conditions like those of the pandemic, family arrangements tend to increase in importance. For example, mentoring by family members, private tutoring arrangements, and extracurricular online courses likely played an important, even though unknown, mitigating role during the pandemic.

A bottom-up estimate of the cost of the schooling disruption

A new World Bank paper uses a past episode of school closure—in Kuwait during the Gulf War (when Iraq invaded Kuwait)—to estimate the long-term impact of the current pandemic shock on affected students who will end up working in Kuwait’s civil service, the main employment choice for Kuwaiti nationals. The school closure due to the Gulf War is analytically useful because it happened almost 30 years ago, so all the bottom-up feedback effects on labor market outcomes have already been exhausted. This past closure also bears many similarities with the current pandemic-related school disruption, allowing us to estimate the lost salaries resulting from the pandemic-related education shock.

When Iraq invaded Kuwait and started the Gulf War, schools closed for the 1990/91 school year. As a result, many students in Kuwait lost access to formal schooling and only some students who emigrated could continue their education abroad. The following school year, when schools opened, was used to restore damaged school infrastructure and accelerate schooling to allow students to catch up. Nevertheless, the disruption led to lower attainment in terms of average years of schooling. The reduced attainment translated into long-run wage losses for affected Kuwaiti students.

The paper estimates that boys in elementary school during the pandemic-related school closures could face a salary loss of more than $2,600 per year, and girls could lose more than $1,500 per year (Figure 1). Over their working lives, the average present value of lifetime income reduction could be more than $40,000 for the boys and almost $21,000 for the girls. These are large losses. For context, civil service monthly salaries in 2019 imply average annual salaries of $62,000 for Kuwaiti men and $47,000 for Kuwaiti women.

Unfortunately, the findings are both reassuring and disturbing. They are reassuring because the order of magnitude of the estimated income losses is in line with the top-down studies. Disturbingly, however, the predicted losses are likely to be large and long-lasting, which places tremendous pressure on policymakers who struggle to contain the virus and grow their economies.

How the Omicron response can prepare us for the next wave

By Ross A. Hammond, Matt Kasman

The ­­Omicron wave of SARS-CoV-2 in December 2021-February 2022 caused over 30 million new cases and hundreds of thousands of deaths, with a daily death toll greater than total deaths caused by Hurricane Katrina—many more than the Delta wave. This burden fell unequally on society, with Americans over 65 representing almost 80% of the deaths and significant racial disparities.

Our new analysis suggests that many of these cases were preventable. Using a data-driven computational model, we identify specific policy strategies that would have reduced infection rates and peak level of cases during the winter surge. These critical lessons can guide preparedness moving forward as we face a potentially even larger wave in the autumn.

The model we used to find these results, called TRACE, was developed by a team from Brookings, Washington University in St. Louis, and the University of Vermont, building on previous work that informed early-pandemic policy nationally and locally. We considered a wide variety of potential containment strategies that could have been deployed before or during the Omicron wave and used TRACE to simulate how many cases would have occurred during each of these scenarios, allowing for us to readily compare them to one another. The model includes a wide variety of policy options: both small and large increases in testing capacity; faster rollout and uptake of vaccines; faster rollout and uptake of booster doses of vaccine; small and large increases in mask wearing; increased access to and substitution of high-quality respirators over low-quality masks; and moderate or strong social distancing policies such as school closures and remote work. Each of these actions is evaluated in isolation as well as hundreds of combinations of policy responses.

Figure 1

Some of our most significant findings are:

  • Multiple alternative containment strategies would have resulted in substantially lower rates of cumulative infection and peak surge levels during the winter Omicron wave than those that were actually experienced. Although we do not directly estimate downstream effects, lower case rates translate to a reduction in deaths, reduced burden on the health care system, and fewer instances of long-term symptoms or downstream health consequences such as “long COVID” or immune-system driven disease risk in young children.
  • A significant increase in consistent usage of high-quality masks could have reduced cases by as much as two-thirds. Although masking in the United States has been politicized and efforts to increase mask usage have been controversial, our simulations demonstrate that masking remains a very effective approach to containing spread of SARS-CoV-2. In our simulations, consistent masking by 70% of Americans during the surge would have been almost as effective as widespread closures of businesses and schools.
  • A large increase in testing capacity alone could have reduced cumulative and surge infection rates by nearly one-third.
  • A higher take-up rate of booster shots and earlier availability for those eligible would have reduced cumulative infection rates by up to 15% of the U.S. population during the Omicron wave. Rapid increases in vaccination for children under 18 would also have led to large decreases in disease spread. Much higher investment in uptake of boosters and vaccines, including in the youngest age groups, would likely be needed before a wave to provide a substantial dampening effect.
  • Combinations of “lighter touch” responses (such as modest increases in mask usage combined with modest increases in testing) can be as powerful as intensive investment in a single policy approach and may be more practical.

A fall wave may be driven by a variant that looks different from Omicron, but our results can still inform policy investments that will save lives.

In addition to looking at the “policy counterfactuals” above (policy choices that could have been made but were not), we also used TRACE to look at “epidemiological counterfactuals” that represent how the wave might have played out if a variant even more contagious than Omicron (or one better able to evade immunity) had become dominant. Our key finding from this analysis is that, although all containment policies are less effective in absolute terms against a highly contagious or high immune-escape variants, their relative impact compared to one another is largely invariant—that is, the choice of which policies to invest in for maximum preparedness remains nearly the same. A fall wave may be driven by a variant that looks different from Omicron, but our results can still inform policy investments that will save lives.

At a time when policy focus and public attention have largely shifted away from COVID, these new results show how big a difference policy choices and preparedness investments can make.  Both the analysis above and our previous work with TRACE underscore the contributions that policy simulations can continue to make to identifying robust and practical policy solutions in the face of uncertainty and rapidly changing dynamics on the ground. Models which consider a broad range of policy choices and can simulate impact across diverse interacting populations are also particularly well suited to providing guidance with respect to long-term impacts, equity implications, and linkages to health care or economic systems, as we are doing in our continued work with TRACE.

The Brookings Institution is financed through the support of a diverse array of foundations, corporations, governments, individuals, as well as an endowment. A list of donors can be found in our annual reports published online here. The findings, interpretations, and conclusions in this report are solely those of its author(s) and are not influenced by any donation.

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