Silver Linings in State Responses to COVID-19


As Americans endure a pandemic of COVID-19, there is much to criticize regarding the public health orders that authorities at various levels have issued and the way in which they have issued them. However, a wave of deregulation temporarily is transforming some aspects of state health-care policy for the better. Calling attention to these actions can encourage other states to follow suit now—and increase the chance of achieving permanent deregulation later.

Below are five broad areas in which state responses to the COVID-19 crisis have been promising. This is not a comprehensive list, but it illustrates this trend.

Occupational Licensing

Generally, physicians, nurses, pharmacists, and many other health-care professionals must obtain a state license in order to work. Ostensibly, this is to ensure competence, but it greatly constricts the number of people allowed to do these jobs.1

To increase the number of qualified individuals available to care for patients during our current pandemic, many states temporarily have suspended some occupational regulations. For example, California, Colorado, Connecticut, Hawaii, Louisiana, New Hampshire, New York, and Washington all have issued orders allowing health-care professionals licensed in other states to provide care in their states. Maine Governor Janet Mills has called for all physicians, physician assistants, and nurses who have retired in good standing in Maine in the past two years to have their licenses reactivated immediately upon request, with no application fee. Massachusetts Governor Charlie Baker has signed a similar order, allowing automatic licensing renewal for retired physicians, and the state has issued a ninety-day license extension for nurses, pharmacists, and physician assistants so that they are not burdened with renewal applications when their time is better spent providing care.

Scope of Practice Regulation

A qualified health professional’s “scope of practice” refers to the set of services that he or she legally is permitted to perform. Ostensibly, this is to ensure that professionals do not do more than they have been trained to do. However, vesting this power with the state prevents hospitals and clinics—the institutions that employ these professionals—from making their own determinations about who is qualified to do what.

To increase health-care system capacity and responsiveness during this pandemic, several states temporarily have eased their scope of practice regulations. For example, Wisconsin Governor Tony Evers has suspended the state requirement for a written collaborative practice agreement detailing the split of responsibilities between nurse practitioners and their supervising physicians. Tennessee Governor Bill Lee has suspended some regulations in order to allow nurse practitioners to write prescriptions without immediate physician review and without monthly site visits from their supervising physician. Pennsylvania Governor Tom Wolf has suspended certain scope of practice regulations in order to allow certified registered nurse practitioners to prescribe drugs outside the state-defined “preferred drug list.” Michigan Governor Gretchen Whitmer has suspended regulations across a broad spectrum of professions, including physician assistants, advanced practice registered nurses, registered nurses, licensed practical nurses, and pharmacists, allowing institutions more freedom to empower their workforce and delegate responsibilities as they see fit.

Telemedicine and Telehealth Regulation

Telemedicine (and almost synonymously, telehealth) is the use of telecommunications technology for the remote diagnosis and treatment of patients. Ostensibly to control quality and cost, states regulate telemedicine, restricting which technologies can be used, how they can be used, and by whom.

In order to recruit help from out-of-state practitioners, minimize face-to-face interactions, and maximize efficiency, some states temporarily have lifted their telemedicine regulations. For example, Utah Governor Gary Herbert has suspended the state health code “to the extent that it interferes with a medical provider’s ability to offer telehealth services.” In New Jersey, the State Assembly has changed regulations in order to allow out-of-state health-care practitioners in good standing to provide care to COVID-19 patients using telemedicine. Texas Governor Greg Abbott has issued some of the most sweeping changes with regard to telemedicine. Abbott has waived the requirement that physicians establish a doctor-patient relationship in person before they treat a patient using telemedicine, thus allowing physicians to care for more new patients. Also, pharmacists in Texas now can conduct consultations over the phone, which speeds care and helps to reduce the risk of coronavirus exposure for both pharmacists and patients.

Continuing Education Requirements

Most states require health-care professionals to satisfy education requirements, usually defined as a certain number of content hours (e.g., specially designed coursework or eligible conference lectures) per year. Ostensibly, this is to ensure that workers stay current with the latest practices in their field. However, the evidence indicates that this approach doesn’t work, and most practitioners already do stay current with best practices via on-the-job learning.2

So as to not burden professionals at this time with requirements that are ineffective or unnecessary, some states have lifted these regulations. For example, Iowa Governor Kim Reynolds has suspended “any provisions of the Iowa Administrative Code . . . to the extent they impose requirements for in-person continuing education as a condition of professional license renewal.” Similarly, Michigan and Tennessee have suspended their continuing education requirements so that professionals can continue working through the pandemic.

Certificate-of-Need (CON) Laws

CON laws are state laws that require health-care and assisted-living facilities (e.g., hospitals, ambulatory surgery centers, nursing homes) to seek permission from the state before they can add new capacity, such as beds; new equipment, such as MRI machines; or new services, such as air ambulance transportation or dialysis. (In some cases, institutions even need to seek permission before they discontinue offering a service.) Thirty-six states have CON laws on their books today.3 Proponents argue that these laws lower supply, which results in lower demand, which in turn results in lower government spending on programs such as Medicare and Medicaid. However, evidence suggests that they do not control costs, and they definitely do limit the ability of health-care and assisted-living facilities to expand capacity and meet patient demand.4

To increase health-care system capacity rapidly in response to the current pandemic, some states temporarily are suspending these laws. For example, South Carolina Governor Henry McMaster has suspended the monetary thresholds that normally would trigger a certificate-of-need review. Michigan has empowered its Department of Licensing and Regulatory Affairs to grant waivers to hospitals “to construct, acquire, or operate a temporary or mobile facility for any health care purpose.” Under Governor Ned Lamont, Connecticut has not suspended any of its CON laws outright, but it did launch a new, streamlined process by which hospitals can request a waiver from CON laws in order to, for instance, increase critical-care capacity.

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The failure of governments to roll back new controls instituted during an emergency sometimes is called “the ratchet effect.”5 In the case of state health policy, in many ways we are witnessing the reverse: an undoing of state regulation amid the COVID-19 crisis. States are, by and large, granting medical institutions and professionals greater freedom to act, not less. If only implicitly, politicians are acknowledging that in order to be most effective, health-care professionals must have the right to act on their own judgment—and that acknowledging and protecting this right will, indeed, save lives.

We do not know exactly when the COVID-19 crisis will subside, but when it does, advocates of reason and freedom will have a brief opportunity to win this battle of ideas and lock into place some of the changes mentioned above. If we can achieve that, then the American health-care system will be stronger for the future, both in emergencies and in normal times.

Michigan’s Executive Order 2020-30 states, “To ensure health care professionals and facilities are fully enabled to provide the critical assistance and care needed by this state and its residents during this unprecedented emergency, it is reasonable and necessary to provide limited and temporary relief from certain restrictions and requirements governing the provision of medical services.” Instead of making such actions across various states limited and temporary, let us make them boundless and permanent.

If only implicitly, politicians are acknowledging that in order to be most effective, health-care professionals must have the right to act on their own judgment—and that acknowledging and protecting this right will, indeed, save lives. Click To Tweet

Endnotes

1. Morris M. Kleiner, “Occupational Licensing: Protecting the Public Interest or Protectionism?,” W. E. Upjohn Institute for Employment Research, Policy Paper No. 2011-009, https://research.upjohn.org/cgi/viewcontent.cgi?article=1008&context=up_policypapers.

2. H. A. Holm, “Quality Issues in Continuing Medical Education.” BMJ (clinical research ed.) vol. 316,7131 (1998): 621–24; Kamran Ahmed et al., “The Effectiveness of Continuing Medical Education for Specialist Recertification,” Canadian Urological Association Journal 7, no. 7–8 (2013): 266–72.

3. Jared Rhoads et al., Healthcare Openness and Access Project 2020: Prerelease (March 25, 2020). Mercatus Working Paper, available at SSRN, https://ssrn.com/abstract=3561732.

4. James Bailey, “Can Health Spending Be Reined in through Supply Restraints? An Evaluation of Certificate-of-Need Laws,” Journal of Public Health 27, no. 6 (2019): 755–60.

5. Robert Higgs, Crisis and Leviathan (New York: Oxford University Press, 1987).

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