Experts slam GOP bill letting states ignore federal health standards in emergencies

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Letting states set their own diagnostic testing standards 'creates enormous confusion,' one health expert said.

Four Senate Republicans introduced a bill on Tuesday that would allow states the option to simply ignore federal testing standards during public health emergencies.

Experts say this could cause serious problems for tracking and containing future pandemics.

The "Right to Test Act," authored by Sen. Ted Cruz (R-TX) and co-sponsored by Sens. Mike Braun (R-IN), Mike Lee (R-UT), and Kelly Loeffler (R-GA), would change federal law to note that "during any public health emergency" declared by the secretary of Health and Human Services or a governor, the state's public health department "may clear or approve diagnostic tests or diagnostic devices" for use in that state on their own, rather than following one set federal standard.

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If enacted, the bill would also take away the Food and Drug Administration's power to take enforcement actions against any state or facility making or using state-approved tests.

The proposal comes after the Trump administration's botched handling of coronavirus testing has come under increasing scrutiny, even from Trump loyalists and advisers.

"Our federal bureaucracy simply has not moved fast enough during this crisis," Lee said in a press release announcing the legislation. "We need to empower the creativity of Americans to solve this crisis and allowing states to cut through regulatory delays will do just that."

But experts warn doing so could make things even worse.

Emily Gee, health economist at the Center for American Progress, said in a phone interview that the problem has been "lack of federal leadership" in virus testing standards, not an excess.

"It doesn't seem like a great idea," she said. "News reports in the last week show all sorts of examples of what happens when there aren't uniform standards for reporting across states. It's really hard to see best practices and make comparisons when they're reporting different ways."

She noted that Virginia had come under criticism recently when it began including antibody testing numbers in its daily coronavirus test counts, making any apples-to-apples comparison with other states nearly impossible.

"[This is] not good if we're trying to make objective decisions about whether it's safe to reopen or not," she said. "We do want national standards and a decent amount of oversight on what tests get used and how things get counted so we have a clear picture of what's happening in terms of the disease's spread and whether we have the virus under control."

Dr. Georges Benjamin, executive director of the American Public Health Association, said in a phone interview that the GOP bill was undoubtedly problematic.

"The reason it's a bad idea is that states don't have the capacity to do this," he said. "State laboratories and their laboratorians are very good. But the problem is when you have something like this that's a nationwide emergency, the more consistency you have, the better. That's the FDA's job. The FDA has the capacity to do that."

Benjamin echoed Gee's concern about the importance of standardized data.

"To the extent you have tests that are done across state lines, the problem is it creates enormous confusion," he explained. "You need to be able to compare the test from one state to another to get a national picture. I would argue against this approach."

He noted that the FDA already has the authority to allow individual states to do their own testing and that they did so in some cases during this pandemic. But, he said, states lack the financial resources to create "50-plus FDAs across the country."

"States have not been able to adequately support the basic public health functions: keeping water safe, food safe, and air safe. I'm not sure how they're gonna add this additional burden," Benjamin concluded.

The Trump administration has faced heavy scrutiny over the past few months for its botched handling of the coronavirus pandemic, specifically its failure to prepare adequately by strengthening national stockpiles and establishing a strong national response from the outset.

Trump was also criticized for ignoring early warnings about the virus and refusing to heed health experts' advice on various safety measures, as well as for his administration's failed approach to testing, which likely worsened the crisis dramatically.

"Early on in this crisis, the [Centers for Disease Control and Prevention], which really had the most trusted brand around the world in this space, really let the country down with the testing," Trump's own trade adviser, Peter Navarro, admitted to NBC News on Sunday. "Because not only did they keep the testing within the bureaucracy, they had a bad test and that did set us back."

Navarro was referring to the CDC's early test kits, which were later recalled due to a flaw that resulted in inconclusive results. The error added further delay to the nationwide testing process, which experts say only allowed the virus to spread further.

Though Lee suggested in a statement this week that the newly introduced GOP bill might have remedied the current situation, claiming "federal bureaucracy simply has not moved fast enough," experts are still doubtful.

Benjamin noted that the FDA already has the authority to allow individual states to do their own testing and that they did so in some cases during this pandemic. But, he said, states lack the financial resources to create "50-plus FDAs across the country."

"States have not been able to adequately support the basic public health functions: keeping water safe, food safe, and air safe. I'm not sure how they're gonna add this additional burden," Benjamin concluded.

Published with permission of The American Independent Foundation.