A Comeuppance for Pennsylvania’s Health Bureaucrats

Pennsylvanians have already seen what expansive public-health authority can look like.

During the Covid era, schools were closed, businesses were divided into “essential” and “nonessential,” and major decisions affecting ordinary families were made through administrative orders with limited public input. In December 2021, the Pennsylvania Supreme Court struck down the state’s school masking order, holding that the Department of Health had exceeded the authority granted to it under existing law.

The Court noted that if the Department wanted broader authority, it could amend its regulations.

This summer, it tried.

Buried inside an arcane 502-page rewrite of Pennsylvania’s communicable-disease regulations was an amendment adding the words “prevention, containment or mitigation” to a section of the code that had been central to the masking dispute. The Department itself acknowledged that the 2021 court decision had “influenced” the proposed change.

In plain English, the Department proposed to write broader disease-control authority into the regulations after the state Supreme Court said the old language did not provide it.

That alone was enough to attract attention.

This wasn’t even the most controversial aspect of the proposal.

The package would have more than doubled the list of conditions that doctors and laboratories must report, mandated additional prenatal testing, lowered the fever threshold for excluding children from school or child care, required vaccine doses to be entered into a government registry, and expanded public-health powers affecting homes, schools, and businesses.

The rule was designed to implement by bureaucratic fiat the very same sort of oppressive Covid-style health measures that have been thoroughly debunked by available scientific evidence and have been overwhelmingly rejected by voters at the polls. 

Then came perhaps the most remarkable part.

The Department’s economic analysis estimated that the proposal would cost the private sector zero dollars.

Not approximately zero. Not a small amount. Zero.

Pennsylvania law requires agencies proposing regulations to estimate the costs imposed on those who must comply. Yet in multiple places the Department acknowledged that the proposal would require additional resources, increase absences, or cause families to miss work and school. Each time, the explanation was essentially the same: because the Department lacked sufficient data to quantify the cost, it would estimate no overall fiscal impact.

That is not serious economic analysis, and alas, it is the type that agencies repeatedly produce when there is no one watching. Because few organizations have the economic data and expertise to dispute them, such improprieties are rarely challenged. 

Liberty requires constant vigilance, and the Pennsylvania Small Enterprise Foundation worked together with the Pennsylvania Family Institute to produce the analysis the Department said it could not.

The results were astounding. 

Using the Department’s own counts of doctors, laboratories, schools and child-care providers, along with public health data and federal wage statistics, we estimated that the proposal would impose over $100 million in annual costs.

Most of that burden would not have fallen on hospitals or large corporations.

It would have fallen on families.

Lowering the fever threshold and expanding the circumstances under which children could be sent home from school or child care means more parents missing work. We estimated that lost wages from those absences alone could exceed $70 million annually.

The Department did not count them.

Asked whether it had considered any of the methods available under Pennsylvania law to reduce burdens on small businesses, the Department answered “not considered” five times. The Department said it “lacked data” on how many small businesses it regulated, even though the Census Bureau publishes such figures on an annual basis.

This is exactly why public participation in the regulatory process matters.

Large corporations have attorneys, lobbyists, compliance teams and trade associations capable of monitoring hundreds of pages of proposed rules. Small businesses usually do not.

The owner of a child-care center, independent medical practice, farm, restaurant, or local manufacturer is usually occupied with something more immediate: running the business.

That creates an obvious imbalance. Agencies hear regularly from large institutional actors, while smaller firms often discover new requirements only after they have already become final.

The Pennsylvania Small Enterprise Foundation exists in part to help close that gap by providing technical economic and regulatory analysis on behalf of small businesses and the organizations that represent them.

In this case, the broader public also did much of the rest.

Thousands of Pennsylvanians submitted objections. Eighty-five members of the state House called for the proposal to be withdrawn. On September 25, four days after public comment closed, the Department withdrew the entire package, citing a “historically high volume of feedback.”

A victory for common sense and democratic accountability.

The lesson here is larger than any one public-health regulation.

For several years, Pennsylvanians heard that draconian public-health powers were necessary because extraordinary circumstances demanded them. This attempt to reimpose such powers by regulatory fiat long after the Covid panic has subsided proves that emergency was just a pretext. 

Whatever the motives or merits of the authority sought, writing “zero” in the cost column does not make the costs disappear. This is the sort of thinking that both devastated small businesses and left families and children to pay the cost of hysteria.

The time to oppose such thinking, armed with the evidence, is long overdue. The Pennsylvania Small Enterprise Foundation was proud to stand with the citizens of the Commonwealth to sink this overreach.