This article is a part of the The Law, Economics, and Policy of the COVID-19 Pandemic symposium.
[TOTM: The following is part of a blog series by TOTM guests and authors on the law, economics, and policy of the ongoing COVID-19 pandemic. The entire series of posts is available here.
This post is authored by Robert Litan, (Non-resident Senior Fellow, Economic Studies, The Brookings Institution; former Associate Director, Office of Management and Budget).]
We have moved well beyond testing as the highest priority for responding to the COVID disaster – although it remains important – to meeting the immediate peak demand for hospital equipment and ICU beds outside hospitals in most urban areas. President Trump recognized this being the case when he declared on March 18 that was acting as a “wartime President.”
While the President invoked the Defense Production Act to have the private sector produce more ventilators and other necessary medical equipment, such as respirators and hospital gowns, that Act principally provides for government purchases and the authority to allocate scarce supplies.
As part of this effort, if it is not already in the works, the President should require manufacturers of such equipment – especially ventilators – to license at low or no royalties any and all intellectual property rights required for such production to as many other manufacturers that are willing and capable of making this equipment as rapidly as possible, 24/7. The President should further direct FDA to surge its inspector force to ensure that the processes and output of these other manufacturers are in compliance with applicable FDA requirements. The same IP licensing requirement should extend to manufacturers of any other medical supplies expected to be in short supply.
To avoid price gouging – yes, this is one instance where market principles should be suspended – the declaration should cap the prices of future ventilators, including those manufactured by current suppliers, to the price pre-crisis.
Second, to solve the bed shortage problem, some states (such New York) are already investigating the use of existing facilities – schools, university dorms, hotel rooms, and the like. This idea should be mandated immediately, as part of the emergency declaration, nationwide. The President has ordered a Navy hospital ship to help out with extra beds in New York, which is a good idea that should be extended to other coastal cities where this is possible. But he should also order the military, as needed, to assist with the conversion efforts of land-based facilities – which require infection-free environments, special filtration systems and the like – where private contractors are not available.
The costs for all this should be borne by the federal government, using the Disaster Relief Fund, authorized by the Stafford Act. As of year-end FY 2019, the balance in this fund was approximately $30 billion. It is not clear what the balance is expected to be after the outlays that have recently been ordered by the President, as relief for states and localities. If the DRF needs topping up, this should be urgently provided by the Congress, ideally as part of the third round of fiscal stimulus being considered this week.
