Typically, government regulations take a long time to implement and an even longer time to remove. In an emergency, though, both of those time frames are dramatically reduced. This week offered a case study in the perils of rapid regulation and the benefits of flexibility after rules are put in place.
On Monday, the state issued a guidance for the reopening of child care centers. It was the most rigid and inflexible in New England. Though most New England states — and the Centers for Disease Control and Prevention —have relied on recommendations to guide child care centers through coronavirus protocols, New Hampshire included several mandates.
Child care directors immediately flagged those mandates as impossible to implement.
The state guidance, for example, stated that programs “must reduce group sizes and limit child care rooms to no more than 10 people total, including children and adults.”
It further mandated that staff wear masks “at all times while at work” and that centers “consistently keep the same groups of children and staff together (i.e. do not float staff, do not move children between rooms/groups).”
That’s the type of regulation that sounds great to a public health official, but has obvious flaws. Child care providers pointed out to the Josiah Bartlett Center earlier this week that the rules would literally prohibit staff members from eating or going to the bathroom while at work. If staff members can’t cover for each other, there’s no ability for a bathroom break.
The inflexibility of the rules drew a swift and widespread rebuke from child care operators, who flooded the governor’s office and the Department of Health and Human Services with complaints. The Bartlett Center published a story on Thursday pointing out that the mandates would make thousands of children lose their spots at New Hampshire child care centers.
“We listened to folks over the last couple of days. We had a lot of input,” Gov. Chris Sununu said on Friday.
Lisa Cormier, director of St. Peter’s Home in Manchester, the largest child care center in the state, said the mandates were disappointing because they would do the opposite of what they were intended to do.
“The point was to make people more comfortable with child care so they would go back to work,” she told the Josiah Bartlett Center. “But instead, it’s cut us off at the knees.”
The governor on Friday said the new rules incorporated that feedback and focused on flexibility and availability.
“We want to make sure that child care is available, and we want to make it flexible,” he said.
In an emergency, regulations do not have to go through the normal regulatory process, which was clearly a problem with the initial child care guidance. The speed with which these rules were put in place, and the shortage of industry feedback, guaranteed a disaster if they were fully implemented.
The benefit of emergency rules, though, is that the lengthy rule-making process in place during normal times is not required for making adjustments. So the state was able to take input from child care operators and change the rules within five days. Normally, this would take months.
The biggest flaw in the initial child care regulations was the refusal to trust providers to manage their own facilities based on state guidance. Mandates stem from an absence of trust. Thankfully, providers caused a stir and the state responded appropriately. That’s something for those in other regulated industries to remember.