Institutions and those entrusted with their care have beclowned themselves so regularly over the years that Americans have lost faith in almost all sources of authority. In this environment, the New Hampshire Senate this week surveyed the cultural scene and said, “hold my beer.”

It’s hard to say what will be hurt most by the unemployment legislation the Senate’s Democratic majority passed on a party-line vote on Tuesday: New Hampshire businesses or the reputation of the New Hampshire Senate.

House Bill 1166, a hodgepodge of business mandates and impermissible exemptions to federal unemployment policy, is an absurdity that defies all attempts at reasonable explanation. In its totality, it is a stunning example of politicians choosing showmanship over the public official’s duty to govern.

On its face, the bill is a direct assault on New Hampshire businesses struggling to survive the coronavirus-caused recession. It would cost New Hampshire employers hundreds of millions of dollars, potentially triggering numerous business closures.

“I feel it kicks the businesses while they are down,” Wendy Hunt, president of the Greater Merrimack-Souhegan Valley Chamber of Commerce, wrote in testimony submitted to the Senate Commerce Committee. “It is the OPPOSITE of what the legislature should be doing for our business community.”

If it becomes law, the bill would burden employers with higher costs. But  some of the worst parts of the bill would have a limited effect because they are really a publicity stunt disguised as legislation. The very legislators who champion the bill as a necessary protection for New Hampshire workers inserted a provision to prevent many of those alleged protections from taking effect.

Huge costs and violations of federal labor policy 

At the Senate Commerce Committee on June 5, Deputy Employment Security Commissioner Richard Lavers explained how the bill’s excessively generous rewriting of state law on unemployment benefits would violate federal guidance, putting the state out of compliance with U.S. Department of Labor policy and causing the loss of federal money.

The bill lets an employee remain eligible for unemployment benefits if he or she “leaves employment due to a reasonable risk of exposure or infection, including self-quarantine, or to care for a family member, and either does not intend to return to the employer or the employer will not allow the individual to return.”

Federal guidance states that employees able and available to work are not eligible for benefits. The bill would let employees collect unemployment if they are able and available, and even if they do “not intend to return to work.”

“This one is not allowed,” Lavers told the committee. The eligibility provision “would also have what I assume is an unintended consequence of taking people that are now eligible for federally paid PUA and putting them on state UI that would have to be paid out of the state trust fund.”

That is, the bill moves people from federal Pandemic Unemployment Assistance to state-paid unemployment insurance benefits, causing a more rapid depletion of the state Unemployment Trust Fund, which is already expected to run out of funds by the end of November.

The bill also would make employees automatically eligible for unemployment benefits for certain COVID-19-related reasons, again in violation of U.S. Department of Labor guidance, and eliminate the one-week waiting period before benefits start.

“The main issue is that this provision, and I’m not speculating here at all, I’m not relying upon old guidance from the federal government, I’m relying on guidance issued one month ago today issued by the Department of Labor. This provision would make New Hampshire be out of compliance with U.S. Department of Labor, and we would be out of conformity with U.S. Department of Labor,” Lavers told the committee.

“That puts our federal grant funding in jeopardy.” he explained.

Going out of compliance with federal guidance “would mean that New Hampshire employers would no longer be eligible for their 90% reduction in their federal unemployment tax obligations,” Lavers said. “This would cost New Hampshire businesses over $200 million a year…. This is what they are telling states. They are cautioning states: Don’t do this.”

The committee’s response to these warnings was to insert a self-destruct button into the bill.

“In the event the United States Department of Labor provides a written notice to the New Hampshire department of employment security that any specific statutory change in this act will result in the loss of federal funding to New Hampshire then that specific statutory change, and that specific statutory change only, shall be inoperative,” an amendment introduced by Sen. Jon Morgan reads.

The “inoperative” clause is a case study in political cynicism. It could have one of only two outcomes. Either it makes those provisions instantly ineffective, in which case there’s zero point in passing them, or it makes them effective only for a brief period until an inevitable federal notice arrives, in which case there’s zero point in passing them.

No one seems to have checked with staff attorneys to find out how the provision would work. We did.

The language does not make the provisions Lavers warned about automatically inoperative based on guidance already issued by the Department of Labor. It would make them inoperative only after the U.S. Department of Labor issues additional written notice to the state, according to legislative staff.

So the self-destruct button would be triggered only after the bill had begun to damage the economy.

This is not governing. This is playing politics with New Hampshire’s economy.

Diverting $50 million from COVID-19 relief to a state department

The political games don’t end there.

The bill directs $50 million in federal CARES Act relief money to the Department of Employment Security for the purpose of upgrading its computer system. 

But the department does not need or want the money. Its system was already upgraded with federal funds.

“New Hampshire is one of 16 states with a modernized unemployment benefits system,” Lavers told the Senate Commerce Committee on June 5. 

The department replaced its computer system in 2009 and has enhanced it every year since with federal grant money, he said. 

“We were paying benefits under the CARES Act before the CARES Act existed because of our modernized system,” Lavers said. “We do not need money for this purpose from the limited amount of money that are left in the CARES funds.”

Why in the world would Senate Democrats divert $50 million in coronavirus relief money to upgrade a computer system the that was already upgraded with federal money?

It turns out that Sen. Dan Feltes, who co-sponsored the legislation, has made upgrading that computer system part of his gubernatorial campaign. He claimed in April, without evidence, that the governor failed to upgrade the system that the department says is fully upgraded. 

More ignored warnings

The remainder of the bill is filled with provisions that senators were warned would hurt New Hampshire individuals and businesses.

Tyler Brannon, director of health economics at the N.H. Department of Insurance, told the Senate Commerce Committee that the provision mandating private insurance coverage for COVID-19 treatment and testing was unnecessary and would help unscrupulous companies at the expense of Granite Staters. 

Insurers already voluntarily cover COVID-19 testing and treatment at no cost, and the state’s emergency order mandates coverage for out-of-network providers if no in-network providers are available. 

The bill goes further to mandate coverage for out-of-network providers at any time and force insurers to cover “any out-of-network charges.”

“The requirement will allow for price gouging by out-of-network providers, and it’s likely to benefit opportunistic, out-of-state companies at the expense of New Hampshire premium payers more than it is going to benefit New Hampshire members,” Brannon explained.

His warning was ignored and the provision was left in.

Another provision extends the federal Family and Medical Leave Act to businesses with as few as 15 employees “for any employee in quarantine, or covered family member in quarantine, for coronavirus or COVID-19, or for a COVID-19 related reason, as directed by a medical provider or under government direction.” 

Not even Congress would force businesses smaller than 50 employees to bear the costs of the Family and Medical Leave Act. This provision could impose significant costs on small, mom-and-pop businesses that have only a few employees.

With a laundry list of additional costs being dumped on employers even before many are allowed to open at full capacity, the bill drew sharp criticism from business owners and groups. 

The bill “will cause a significant increase to unemployment insurance taxes right when businesses are stretched thin and face significant losses already,” Ashley Haseltine, president of the Derry Londonderry Chamber of Commerce wrote.

Chris Woods, president of Advantage Insurance in Merrimack, submitted written committee testimony that the bill “will cost NH businesses who are already struggling additional money while incenting individuals to not go back to work.”

The Senate’s only response to these warnings came Tuesday when two Democratic senators, Sen. Shannon Chandley and Sen. Jeanne Dietsch, voted with Republicans to strip a provision mandating an additional $100 a week in unemployment benefits. That provision would have cost N.H. employers $53 million through the end of 2020 alone, the Department of Employment Security estimated.

The exact costs of the bill are not clear. As with other amended bills rushed through on Tuesday, it contained no fiscal note. 

New Hampshire employers are struggling to survive an economically devastating 2020. They, and the employees they want to rehire, deserve lawmakers who take this moment seriously and who seek to help. Instead, senators are playing tricks with exploding bills and vanishing promises. 

A new Josiah Bartlett Center for Public Policy study finds that switching to an online reverse auction for the state’s pharmacy benefits management contract can save New Hampshire taxpayers save up to $22.2 million a year.

The study by Dr. Wayne Winegarden, director of the Center for Medical Economics and Innovation at the Pacific Research Institute, finds that New Hampshire can expect to save an estimated $17.8 million — $22.2 million a year by using an online reverse auction to generate more competitive bids for pharmacy benefits management. Over the three-year life of the state’s existing pharmacy benefits management contract, the savings would total an estimated $42.5 million — $53.1 million. (Under the contract, the annual costs are different from year to year.)

“At a time when budget savings are needed, New Hampshire could save millions of dollars annually by adopting an online reverse auction to purchase PBM services,” Dr. Winegarden said. 

Josiah Bartlett Center President Andrew Cline emphasized the value of always looking for cost savings through improved systems, not simply cutting budget line items.

“This study shows the importance of always looking for opportunities to increase taxpayer value by improving system operations,” Cline said. “Adopting a modern, internet-based bidding system for the state’s pharmacy benefits management is a great example of how taxpayers and public employees can save money without reducing services.” 

Pharmacy benefit managers (PBMs) administer prescription drug benefits for commercial and government health plans. PBMs negotiate prices with drug manufacturers, maintain the plan’s drug formulary (the list of approved drugs), and process claims. 

New Hampshire used a traditional Request for Proposal (RFP) process when it signed a three-year, $212.5 million PBM contract with Express Scripts in 2018. Using an online reverse auction rather than a traditional RFP process could have saved the state tens of millions of dollars over the life of the contract, this analysis shows.

In an online reverse auction, pre-qualified suppliers provide competing bids (typically over multiple rounds) to a single buyer. It is the reverse of the more familiar forward auction, in which buyers compete to purchase a product or service from a single seller. For PBM services, New Hampshire would be the single buyer inviting several PBMs (the multiple sellers) to bid on providing PBM services to the state over a defined time period.

Online reverse auctions have saved governments and private businesses billions of dollars and have become a standard procurement method for large organizations. New Hampshire should adopt them for its PBM contracting as well as any other services for which they could produce savings. 

The full study can be read here (pdf): JBC Reverse Auction For PBM services Study Winegarden

In the “Merv Griffin Show” episode of Seinfeld, George hits some pigeons with his car after they didn’t fly away at the last second. “It’s not my fault,” George complains to Jerry. “Don’t we have a deal with the pigeons?”

“Of course we have a deal,” Jerry says. “They get out of the way of our cars; we look the other way on the statue defecation.”

“Right,” George says. “And these pigeons broke the deal!”

The American people have a tacit deal with their government too. The people let the government think it’s in control, as long as it doesn’t get too pushy with the enforcement, and in turn government officials get to make laws and issue proclamations as long as they provide the bare minimum of basic services like roads and adequate schools. 

This deal was never better illustrated than during the coronavirus shutdown. Across the country, governors issued stay-home orders weeks after people began staying home, ordered businesses closed after most people stopped patronizing them, and took control of public health measures as best they could. 

But after a while, it became apparent that the governors and the public had different ideas about the terms of the deal.

The people were told that the emergency orders were necessary to “flatten the curve” and ensure that hospitals were not overwhelmed with critical COVID-19 patients. But after the curve was flattened, the orders remained. 

Governors switched to talking about the importance of reducing deaths and preventing a second wave, but people stopped paying attention to the stay-home orders, which had rarely been enforced anyway. They noticed that the goalposts had moved, and they weren’t OK with that. 

Then, on Memorial Day, a Minneapolis police officer was caught on video pressing the life out of George Floyd as other officers stood by. 

The nation erupted in protest. Rioters followed the protesters. Public spaces filled with thousands of tightly packed, shouting people doing everything state governors had told, and often ordered, Americans not do. 

The unspoken message of the protests (and the riots) was clear: You are not in control; we are. (The spoken message was a different one, though it incorporated the unspoken.) 

People on social media kept asking why protesters were allowed to congregate in the midst of a pandemic governed by stay-home orders and limits on crowd sizes. Those people misunderstood the deal. The government wasn’t allowing the protests. The people had been allowing the stay-home orders. 

Since May 25, the people have been letting their governments know that stay-home orders and crowd size mandates were no longer tenable and would no longer be obeyed.

Government in the United States has a lot of power, delegated to it by the people. But both constitutionally and culturally, the people are sovereign and the people are the ultimate source of the government’s power and legitimacy. When they en masse decide they’re no longer going to take orders or accept the legitimacy of a particular agency’s authority, there’s little the government can do. As much as government officials flatter themselves that they have power and authority, it’s nothing compared to the power and authority held by the people. 

This is why Black Lives Matter protesters press so urgently for others to join them. They understand the power of the majority. They understand that a small protest can be ignored, but a massive one will motivate elected representatives to action.

One might wonder, then, why businesses are not following their customers and opening up in defiance of state orders. That’s simple. Businesses are licensed and regulated by the state and local governments. Government holds tremendous power over them. Individuals have constitutionally protected rights to assemble, speak, and protest, but there is no corresponding right to run a restaurant or hotel. Licenses and permits are permission from the government to be open. Lose that, and you lose your livelihood. 

If one wants to see the effect government power can have on human behavior, one just has to observe the differences in individual vs. business responses to government shutdown orders. Businesses, over which governments exert tremendous control, have largely complied. Individuals, over whom government has less firm control, have been defiant. 

Sometimes, answers to local municipal issues are found not in our communities, but in bad law handed down in Washington, D.C. When it comes to police accountability, many improvements can and must be made at the state and local levels. But the first and most obvious step is to correct a U.S. Supreme Court decision that granted officers broad immunity from civil lawsuits. 

New Hampshire’s congressional delegation can play a vital role in this necessary effort by supporting reform of court-invented ‘qualified immunity’ for government officials who violate Americans’ civil rights.

Police officers are protected from federal civil rights lawsuits by a 1982 U.S. Supreme Court case, Harlow v. Fitzgerald. Under the concept of qualified immunity introduced in that case, government officials are immune to prosecution for civil rights violations unless a specific, nearly identical previous case existed to show that the exact conduct in question was established as a civil rights violation. 

As a 2019 case put it: 

A defendant violates an individual’s clearly established rights only when “‘the state of the law’ at the time of an incident provided ‘fair warning’” to the defendant that his or her conduct was unconstitutional. Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). ‘We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.’

In the case quoted above, Jessop v. City of Fresno, police officers allegedly stole more than $100,000 in cash plus $125,000 in rare coins during a property search. The court ruled that the officers were not subject to a federal civil rights lawsuit because there was no previous case that would have signaled to them that government agents stealing money during a search violated the Fourth Amendment, which protects against “unreasonable searches and seizures.”

“At the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. For that reason, the City Officers are entitled to qualified immunity,” the court ruled.

In effect, the court held that these officers couldn’t possibly know that stealing money during a search is an unreasonable seizure of property because no court had ever ruled that it was.

In another case being brought by the Institute for Justice, police who were searching for man launched round after round of tear gas into his girlfriend’s home, destroying it. They did this after she gave them the house keys and told them they could search the home. They opted to wreck the home rather than use the keys and walk in. (The wanted party was not inside.) 

The homeowner sued, but the court held that the police had qualified immunity because there was no previous case with similar enough circumstances to inform the officers that demolishing a home they’d been invited into might be a civil rights violation. 

Qualified immunity does not determine that a citizen’s rights were not violated. Instead, it blocks civil rights lawsuits against government officials from even proceeding. If there’s no nearly identical previous case, then the officer is presumed immune. 

The effect of this court precedent is to protect bad police officers. 

“The U.S. high court’s continual refinement of an obscure legal doctrine has made it harder to hold police accountable when accused of using excessive force,” a recent Reuters investigation of qualified immunity concluded. 

Fixing this mistake will take either a U.S. Supreme Court reversal or an act of Congress. New Hampshire’s congressional delegation could take the first step in making law enforcement officers more accountable for civil rights violations by pushing for legislation to correct this court overreach. 

When the governors of Florida and Georgia announced that they would reopen their economies, the predictions of mass mortality were immediate. In April, a writer for The Atlantic hysterically labeled Georgia’s reopening plan an “experiment in human sacrifice.”

In the weeks that followed, the mortality surges never happened. 

Digging through COVID-19 mortality data this week, we noticed something that to our knowledge had not previously been highlighted. There have been fewer COVID-19 deaths in Florida, Georgia and Colorado combined (three states criticized for opening “too early”) than in New York nursing homes alone. 

The absence of a mortality surge is finally getting the attention of network TV news and other national media. ABC News’ lead medical reporter Eric Strauss tweeted on Thursday, “JUST IN: @ABC looked at 21 states that eased restrictions May 4 or earlier & found no major increase in hospitalizations, deaths or % of people testing positive in any of them. [SC, MT, GA, MS, SD, AR, CO, ID, IA, ND, OK, TN, TX, UT, WY, KS, FL, IN, MO, NE, OH.”

Politico Magazine on Thursday published a long essay on Colorado, “the blue state that gambled on an early reopening.” 

Colorado’s Democratic governor, Jared Polis, “moved to lift stay-at-home orders not only well before other Democratic-leaning states, but ahead of Republican-led Georgia, Florida and Texas,” Politico pointed out. And he had a plan. 

Polis, “instead of looking most closely at case and death counts, which lag behind the reality on the ground… focused on bringing down the virus’ transmission rate from one person infecting up to four others to one person infecting just one other person, which the state managed in April. As officials added thousands of temporary hospital beds, the governor also closely tracked the daily hospitalization rate, which had begun to slow by the time he made his April 20 announcement.”

Using realistic metrics that indicated how much of a public threat the virus was, Polis determined early that reopening could be done without causing an unmanageable surge in transmissions or hospitalizations.

The result? 

“An average of just 4.64 percent of people tested over three days ending Tuesday were positive for COVID-19. That’s the lowest since the state started tracking a three-day average of positive cases back on March 10,” Colorado Public Radio reported on Wednesday.

Colorado is still experiencing outbreaks in places like meat packing plants, prisons, a grocery store, and an office. But those outbreaks are not spiking overall transmission rates. “While outbreaks continue to occur, overall, the number of new cases reported to the state continues to drop,” the Colorado Public Radio report concluded.

Many Colorado businesses have been operating under capacity restrictions. But by identifying meaningful, reasonable metrics to guide the reopening, the state was able to begin its economic recovery early and eliminate some of the uncertainty for business owners. 

New Hampshire Gov. Chris Sununu has managed a difficult challenge with great skill and has listened to business owners, adjusting some regulations and guidance after seeing how harmful it could be. Bringing business and community leaders into the decision-making process by creating task forces has allowed a greater degree of citizen input and prevented some of the more restrictive regulations seen in other states.

Yet it is not clear what data are guiding New Hampshire’s approach and what the precise goals are. Business owners and employees remain frustrated because the state has offered little clarity on how emergency rules are to be lifted. 

Initially, the state’s emergency measures were focused on ensuring adequate hospital capacity in case of a surge of COVID-19 cases. The curve flattened weeks ago and the anticipated surge never happened. This week the governor ordered 10 of the state’s 14 overflow hospital sites closed.  

Yet the governor also extended his emergency order and the stay-home order this week. People see the numbers going down, the curve flattened, but emergency orders and restrictions remaining in place.

Asked on Tuesday what data the state is using to guide its decision-making, Health and Human Services Commissioner Lori Shibinette struggled to give a coherent answer. After being asked several times about the state’s declining infection rate, she seemed to say that the state’s goal was to prevent every long-term-care facility employee from getting infected.

“Those caregivers are part of our communities. So, as long as there’s still COVID circulating in our communities, there is always a risk of bringing it into a nursing home. And there is always a risk of negative outcomes,” she said. 

Ensuring that no long-term-care facility staff become infected cannot be the goal. It’s an impossible target. 

The governor on Friday offered some clarity, saying that “flattening the curve” to keep hospital capacity available remains the goal. With the curve already flattened, the state is striving to prevent a new surge from overwhelming the hospitals, he said.

The governor added in response to a question that the guiding data are the percent positive and the hospitalization rate. Yet state officials still have not explained exactly what the state’s target numbers are. 

Without clarity on the state’s targets, people will continue to be frustrated and anxious, and business owners will be unable to plan.

As the state’s own chart below shows, New Hampshire’s rate of positive COVID-19 test results has trended downward for weeks and is below 5%, about the same as Colorado’s. The state has 110 hospitalized COVID-19 patients, well below capacity. By any of the standard metrics, the state’s numbers have been trending in the right direction for weeks. 

 

Yet economically crippling restrictions on business and personal activity remain, imposing enormous costs. In April, the state counted 101,490 newly unemployed Granite Staters, for an unemployment rate of 17.2%. It’s worse up north. Coos County’s unemployment rate hit 22.6% and Carroll’s 24.3%. 

There’s little reason to believe that, say, Coos County retail and restaurant employees have to lose their jobs to protect the state’s vulnerable population, most of whom are elderly residents of long-term care facilities and individuals with co-morbidities. 

The overwhelming majority of New Hampshire’s coronavirus deaths (78%) have occurred in long-term care facilities, and 77% of deaths were associated with a cluster, meaning three or more cases in a single workplace or facility. 

Community transmission accounts for 20% of New Hampshire hospitalizations and 13% of deaths. Clearly, a vulnerable individual can contract the virus out in the community, get sick, and die. But the available data suggest that this risk is very low and that these individuals can be protected through less drastic measures.

Japan offers a case study. On Tuesday, Science magazine reported that Japan had ended its state of emergency, having achieved its public health goals without ever issuing a lockdown.

“It drove down the number of daily new cases to near target levels of 0.5 per 100,000 people with voluntary and not very restrictive social distancing and without large-scale testing. Instead, the country focused on finding clusters of infections and attacking the underlying causes, which often proved to be overcrowded gathering spots such as gyms and nightclubs.”

Japan lacks the legal authority to impose mandatory lockdowns, so instead it focused on educating the public about mask-wearing and avoiding the “three Cs”—closed spaces, crowds, and close-contact settings. 

These are specific, attainable, and goal-oriented guidelines. They are easy for the public to understand, and they allow business owners and employees to participate in the process. If the state publicized that the economy could fully open when X and Y metrics were met, and initiated a high-profile publicity campaign to encourage broad public participation in reaching those goals (by wearing masks, social distancing, not forming large crowds, etc.), everyone would have clear goals they could work toward together. 

Instead, the public remains in a state of suspense, waiting anxiously each week for new reopening guidelines segregated by industry. 

As we’ve recommended before, the state’s focus should be on encouraging socially responsible behavior. Many businesses that are closed or partially closed now can open responsibly, posing little risk of creating mass outbreaks, if the state devotes its resources to education, instruction, and assistance rather than categorical business lockdowns. 

The longer the state continues this slow lifting of restrictions, the worse the economic damage will be and the more frustrated members of the public will become.   

 

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.    

If the state regulations for reopening child care centers take effect as issued, 165 children at the state’s largest child care center would lose their spots and have to stay home. And they aren’t alone.

“St. Peter’s would lose 165 spots. That’s over half our enrollment,” Lisa Cormier, director of St. Peter’s Home on Manchester’s West Side, told the Josiah Bartlett Center. “People look at it from the financial standpoint, but it’s 165 children that now have no place to go.”

“The point was to make people more comfortable with child care so they would go back to work. But instead it’s cut us off at the knees. At St. Peter’s, it’s 165 kids, but it’s literally thousands across the state.”

The new child care guidance, issued Monday, imposes social distancing mandates that exceed the child care guidance issued by the U.S. Centers for Disease Control and Prevention as well as the regulations imposed by other New England states. They would be the most severe child care restrictions in the region. 

The CDC guidance consists largely of recommendations, not mandates. For example, the CDC recommends that sleeping mats be “spaced out as much as possible, ideally 6 feet apart.” It doesn’t mandate, or even recommend, maintaining six feet between children otherwise. 

Instead, the CDC recommends keeping kids in the same groups throughout the day and not mixing groups in common areas.

New Hampshire’s far more rigid guidance mandates that no more than 10 people, including teachers, be in any one room at any time, and that children be spaced at least six feet apart at all times whenever possible.

For day care operators that have been open throughout the emergency, like St. Peter’s Home, that means cutting class sizes by more than half. If a room has two teachers, it can have a maximum of eight students, down from around 20 before. 

The rules also require that children be seated at least six feet apart during meals and that they eat in the classrooms, not in a communal cafeteria.

“Our tables are four and a half feet,” Cormier said. “So, I’m not sure if they want them eating on the floor, if they think that’s more sanitary?”

The mandates forbid floating staff from one room to another, which means no staff member can cover for another for any reason throughout the day.

“it’s not going to let teachers take a break. It’s not going to let teachers go to the bathroom,” Cormier said.

A review of child care reopening rules in other New England states shows New Hampshire’s new rules to be the most restrictive and least flexible of those issued so far. 

Rhode Island and Connecticut mandate a 10-child maximum per room, but don’t contain as many additional mandates.

Vermont limits class sizes to 25 and recommends, but doesn’t mandate, six-foot distancing between individuals. Maine has issued a single-page guidance recommending basic sanitation and hygiene practices and relaxing some staff-to-child ratios. 

Massachusetts closed day cares during the initial shutdown, leaving only some designated emergency day cares open. Its rules for day care reopening have not yet been issued.

Day care operators were aware of the guidance in other states and were surprised that New Hampshire’s rules were so limiting. The state has been flooded with phone calls from day care operators this week, to the point that the state has suspended implementation of the rules (which were to take effect on Monday) and Gov. Chris Sununu on Wednesday said the state would consider revising them. 

“We’re e hoping that they’re going to go more toward Vermont, who is allowing 25 in a room,” Cormier said. 

“Those of us who’ve been open all along have struggled through for 10 weeks with no regulations, and all of a sudden what’s come out has been very difficult.”

Despite being open throughout the entire state of emergency, St. Peter’s has not had a single COVID-19 infection, Cormier said. The state Department of Health and Human Services did not return a request for information on how many COVID-19 cases have been associated with child care centers in New Hampshire. 

Child care centers generally have not been associated with large outbreaks of the disease. 

“We have not seen large numbers of cases in daycare centers of COVID, Deidre Gifford, acting commissioner of the Connecticut Department of Public Health, was quoted in the Connecticut Mirror as saying earlier this week. “They do report to DPH and it’s been a very, very small number of cases that we have seen.” 

New Hampshire’s day care guidance is a classic example of well-intentioned regulations creating needless hardship because regulators sought to impose mandates rather than offer help and guidance.

“At first there was a little bit of shock,” Cormier said. “I don’t think the intention was to cut day cares in half. I think it was just one of those things that looked better on paper than in reality.”

Consistent with our guidelines for reopening the economy, the Josiah Bartlett Center for Public Policy recommends rescinding the unworkable mandates and instead offering guidance on best practices. 

The point is to have child care operators improve their safety procedures so parents can get back to work. Imposing unrealistic and unnecessary mandates that send thousands of children home won’t achieve that. 

Two months ago, New Hampshire’s unemployment rate was 2.6%. The unemployment rate is now 17 percent, and on Thursday a deputy commissioner for employment security said it probably will hit 20%. 

Nearly 183,000 Granite Staters have filed unemployment claims since the coronavirus contraction began in March. The state has paid $400 million in unemployment benefits in that time. 

For perspective, that’s more people than live in Manchester, Concord, and Londonderry combined. All out of work. 

For a decade,New Hampshire has experienced so much job growth that the North Country’s unemployment rate had dipped below the national average. In December, Berlin had the state’s highest unemployment rate — at 3.1%. In Concord and Lebanon, the rate was below 2%.

Business closures cut revenues, and lower revenues lead to cuts in employment. When employers can’t earn a profit, they can’t hire people.

People who no longer have jobs turn to the government for help. To fund that aid, the government turns to the businesses whose tax payments fund government relief programs. 

The source of funding for both the employee paychecks and the government relief checks is the same: an employer. (In New Hampshire, business taxes are the state’s largest source of general fund revenue, and businesses pay unemployment insurance taxes. At the federal level, businesses generate the personal income Washington taxes.)

In “Field of Dreams,” Terence tells Ray that the one constant in American life is baseball. (Which, by the way, we no longer have.) In the economy, the one constant is business. 

Business is the foundation upon which everything else rests. It’s provides a living for the people, creates the wealth that funds government services and drives the innovation that improves our lives. 

We take it for granted, as we take for granted the carefree life created by public sanitation, vaccines, pesticides, electricity, home insulation, air conditioning, modern mobility, and thousands of other technological advances.  

We take free enterprise so thoroughly for granted that politicians can build entire careers solely on attacking it. 

To believe business is the enemy of the people, one has to believe that prosperity and modern life expectancy would exist independent of it. But they don’t. They are entirely dependent upon the innovation and the prosperity created by the business activity that flourishes in a free enterprise system. 

There is only one way to rebuild the life we had before March (to the extent that we can). It is to let businesses do what they do — generate the wealth that’s shared in paychecks, dividends, tax payments and charitable donations.

Individual businesses might be your adversary from time to time, but business in the broad sense is not your enemy. It is the foundation of modern life. If we cripple it, we cripple our entire civilization.   

In some activist circles, refusal to wear a face mask has become a sign of defiance, an expression of one’s rebellious spirit, like riding a motorcycle without a helmet. 

It should be the other way around. Wearing a mask is an expression of resistance to governmental authority. (Make it a Gadsden flag mask, to emphasize the point.) 

In history and legend, an American community under threat from an outside danger turns to the skills and leadership of the rugged individualist. John Smith, John Stark, George Washington, U.S. Grant come immediately to mind. 

This is the main theme of Western movies. The reluctant hero agrees to save the town, often at great sacrifice to himself.

The philosophy of the rugged individualist runs deep within American conservatism, which holds that government has no business protecting people from themselves. It’s why New Hampshire doesn’t mandate seat belt or motorcycle helmet use and embraces the motto: “Live free or die, death is not the worst of evils.” 

It’s easy to forget that the community and the rugged individualist are two parts of the same philosophical tradition, and they answer each other. The rugged individualist is not a hermit. He needs the community and it needs him. 

To be free from government controls, individuals have to be as self-sufficient as possible within their community. They work out their problems through community participation, good citizenship, and strong leadership. Personal responsibility, a coinage of the American founding, is an essential building block of a society with a limited, constrained government. 

The Founders understood this and wrote about it often. As John Adams put it one of the many times he made the point, “Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics.”

Ronald Reagan made the same point in his acceptance speech at the 1980 Republican Convention.   

“Together, let us make this a new beginning. Let us make a commitment to care for the needy; to teach our children the virtues handed down to us by our families; to have the courage to defend those values and virtues, and the the willingness to sacrifice for them.

“Let us pledge to restore, in our time, the American spirit of voluntary service, of cooperation, of private and community initiative; a spirit that flows like a deep and mighty river through the history of our nation.”

Service, cooperation, community, sacrifice. 

Reagan absorbed from the Founders the understanding that freedom from government constraints requires us to build voluntary associations through which we care for each other.  

To praise doctors and nurses for their sacrifice in the face of a global pandemic is an empty gesture if not accompanied by some effort of one’s own to reduce the risk those doctors and nurses must face.

Sweden is given as an example New Hampshire should follow. It has not ordered a nationwide lockdown to deal with the coronavirus. The reason? Sweden enjoys high levels of trust and personal responsibility. (Its people are also very healthy.) 

Large gatherings have been banned and sporting events canceled, but otherwise Swedes have voluntarily adopted behaviors that slow the spread of the disease. 

That’s the way to have an open economy during a global pandemic. (Although, as The Wall Street Journal has reported, Sweden’s economy is hurting too.) 

Granite Staters can speed the opening of the economy by doing three simple things. Wash hands, wear a mask, maintain personal distance. That will slow the spread faster than any government order. It will enable more businesses to open and stay open. It is done not to show obedience to the state, but to protect each other so there can be no justification for state controls.  

Now, about those masks. They’re not like motorcycle helmets. Their point is to protect others in your community, not you.

Most people who get the coronavirus don’t get seriously ill. They spread it without knowing they have it. Although Swedes tend not to wear masks, there’s strong evidence that masks are effective at slowing the spread of the coronavirus when people don’t even know they have it. 

Several academics writing in The Atlantic last month examined clinical studies and real-life experiences to conclude that “if 80 percent of people wear masks that are 60 percent effective, easily achievable with cloth, we can get to an effective R0 of less than one. That’s enough to halt the spread of the disease.”

“Mask use in combination with physical distancing is even more powerful,” they wrote.

Wearing a mask is not a sign of complicity (there’s no mask order in New Hampshire). It’s a sign that you don’t need the state to tell you to care for your fellow citizens. 

Individuals, acting in their own capacity without government orders, have the ability to slow or stop the spread of the coronavirus.   

Isn’t that what a self-governing people ought to be doing?

Addressing the first meeting of the Governor’s Economic Re-Opening Task Force, Gov. Chris Sununu said the state likely faced a gradual reopening over many months, not a quick lifting of restrictions within a few weeks. 

The task force’s job, then, is to craft a strategy that would “allow us to continually manage through the process as opposed to closing everything down and rewriting the playbook” if Covid-19 infections surge again in the fall or winter, the governor said.

Throughout the meeting, members discussed how to include all of New Hampshire’s industries. Two members stressed the importance of the arts to New Hampshire’s economy. The pressure on members to get certain industries listed as “essential” was obvious. 

Since the governor’s March 17 order that divided state businesses into “essential” and “non-essential” categories, people in industries categorized as “non-essential” have pressed hard to have their businesses recategorized. And who can blame them? For many, a forced closure for even a few more weeks, not to mention 18 months, is an economic death sentence.

It’s become clear that the “essential” vs. “non-essential” framework is deeply flawed. Adopted by governors nationwide, it’s a better fit for wartime production circa the 1940s. The effort to suppress the spread of the coronavirus does not fit that model very well.

The government isn’t forcibly converting the private sector to war-time production for the obvious reason that surviving a global pandemic does’t require quite the same sort of government direction and mobilization that defeating an enemy nation does. 

The task is not to turn our economy over to government control. It is to slow the spread of a virus. To do that, it isn’t necessary for the state to dictate which industries get to stay open. It’s necessary for people to behave in ways that minimize the spread of a virus. 

Anyone who’s shopped in the last month can see the problems with the current model. Grocers, classified as “essential,” sometimes implement responsible protocols and sometimes don’t. Grocery clerks are a top infected group, showing that safety practices are not always followed as rigorously as they might be. 

Artists and many small retailers, on the other hand, are forced to keep their doors closed even if they can responsibly clean their facilities and implement effective safety protocols.

A safe practices model that emphasizes behavior rather than industrial classifications is a better fit. 

Our counterparts at the Beacon Center of Tennessee have recommended that “any businesses that can maintain public health and safety guidelines should be allowed to open.”

That’s a much better framework to guide the reopening process. And it’s based on existing regulatory practices. 

Restaurants and hospitals, for example, have to meet lengthy checklists of health and safety standards. They are inspected, and if they meet the standards, they continue to operate. 

Rather than having the governor dictate which industries can and can’t open, a safe practices model would encourage and reward responsible behavior, including the widespread adoption of rigorous safety protocols throughout the economy.

Setting safety standards for businesses to meet could open much more of the economy while creating powerful incentives for the more widespread adoption of safe practices.