Op-Eds

Fighting with one hand tied behind our backs

April 3, 2020

issues: California, Competition Policy, Federal Government Affairs, Occupational Licensing, Regulatory Reform, State Policy

originally published in Washington Examiner

As a part of current efforts to stem the coronavirus pandemic, Washington and state governments have taken the rare step of unraveling burdensome regulations. Along with all of its other disruptions of daily life, the coronavirus outbreak has forced the government to initiate an unprecedented avalanche of much-needed regulatory reforms, from allowing doctors to work easily across state lines to enabling hospitals to add more beds. It’s a shame it took a crisis. Indeed, had such regulatory reforms been undertaken earlier, our initial response to the coronavirus likely would have been more swift, nimble, and effective. As this pandemic shows, there is no shortage of fairly modest policy changes that can better prepare America for what future disasters may come our way.

Access to healthcare is paramount during times of crisis, be it natural disasters or new diseases. Unfortunately, states place excessive regulatory burdens on medical professionals and healthcare providers. In nearly half of states, for example, advanced practice registered nurses are legally required to be overseen by a doctor to prescribe medication. This means that otherwise qualified nurse practitioners are not allowed to provide patients care to the full extent of their training. However, in states where they are allowed greater autonomy, there is evidence that medical costs are reduced and access to care is increased without adverse consequences. Florida Gov. Ron DeSantis recently signed legislation, in the works prior to the pandemic, that expands nurses’ scope of practice. More states should follow suit in order to expand access to care generally, but also to reduce doctor strain during times of emergency.

Pharmacists can similarly help. They are playing a growing role in primary care and can refill basic, existing prescriptions without doctor approval in the majority of states. Evidence shows improved access to medications such as hormonal contraception, smoking cessation products, and drugs for common ailments such as cold sores and eczema when pharmacists can prescribe them. Furthermore, this allows increased capacity for doctors to attend to more pressing cases. In a time of crisis, this dynamic allows patients to get their needed prescriptions more easily (and come in contact with fewer people) and frees up doctors to spend more time treating the ill and infirmed. This policy should be uniformly adopted to ease problems down the road.

Natural disasters, public health crises, and the like often necessarily pull public focus toward some geographical areas over others. A hurricane may spike demand for medical care in Florida, so doctors may be called in from other states to assist. Indeed, New York is eagerly accepting help from out-of-state medical professionals, as New York City hospitals are currently overwhelmed due to the coronavirus, and medical professionals themselves have become sick. That is why, at President Trump’s direction, the Centers for Medicare and Medicaid Services issued regulatory waivers that allow medical professionals to work in states where they are not licensed without violating Medicare rules. A better model would be for states to replicate Arizona’s first-of-its-kind law that allows new residents to transfer their occupational licenses easily when they move. In this way, there would be a model in place to expedite licensing for out-of-state rapid response emergency care. Doctors, states, and patients wouldn’t have to rely on emergency orders in order to allow medical professionals to go where they’re needed.

California also has a law to emulate. SB601 provides that state agencies issuing business or occupational licenses may waive fees if someone has been displaced by a state of emergency. This means that someone who has been uprooted can easily get back to work in their licensed profession, be it cutting hair or plumbing, without having to repeat some or all of the occupational licensing process. States ought to consider expanding upon this and putting in place specific plans to expedite the licensing process so that people won’t be both displaced and out of work.

Telehealth allows doctors to go where needed, virtually. Generally, doctors must be licensed in the state where the patient is situated or where the telehealth web platform itself is located. Over the past three weeks, states including Arizona and Michigan and the federal agency CMS have expanded access to telehealth services. However, doing so permanently and allowing all U.S. licensed doctors in good standing to provide online services would be a wise change. And states ought to allow doctors to prioritize the most important cases on platforms by expanding the use of “store-and-forward” systems, which allow doctors to review case information when possible instead of in real time via a screen. This model has proven successful.

In too many states, occupational licenses can be revoked or suspended if professionals fall behind on student loans. And falling behind on loans is particularly likely during disasters. States are quickly getting rid of these laws that kick people while they’re down and make repayment of loans more difficult, but all remaining states should wipe them from their codes. This is especially true as these laws are regularly used against nurses, whose help is particularly needed in times of crisis.

Adding capacity to our medical system also necessitates suspending certificate-of-need laws. As Reason’s Eric Boehm details, “In 28 states, hospitals must get state regulators’ permission before adding beds.” While states such as North Carolina have suspended their CON laws in order to add hospital beds quickly, this should have been done long ago rather than on-the-fly. These laws make it so “hospitals must get a state agency’s permission before offering new services or installing a new medical technology,” writes Boehm. It is impossible to know just how much medical capacity these competitor’s vetoes are artificially blocking, but it’s time to find out by ending these laws.

The current pandemic has also highlighted an opportunity to expand access to food and alcohol. While governments are urging people to stay inside, allowing take-out alcohol has helped businesses stay afloat in the meantime. Allowing alcohol delivery trucks in Texas to also deliver food, for example, is helping keep grocery stores in the state stocked. Stories of food shelves emptying before big storms of any kind are common. Making this change permanent would allow similar flexibility for a variety of disaster scenarios.

Closed schools and empty shelves can cause more hunger among the homeless and poor. Private businesses, philanthropy, and community and faith-based organizations have a tremendous capacity to help fill this need — if they are allowed to. Last year, health officials in Georgia sought to shut down MUST Ministries’s expansive program to feed hungry children in the state with excessive regulations. Now , MUST is stepping in to help local schools make sure their students don’t go hungry. States ought to stop routine crackdowns on people who feed the hungry. Sometimes, this even includes the government bleaching food intended for the homeless or otherwise banning food donations to them. Rather, governments should partner with any private actor able to feed the hungry safely.

We must also end regulations that prevent people from having home-based businesses. Many localities senselessly require people working from home to jump through wild regulatory hoops in order to work remotely. Those who know about these prohibitions and laws may be hesitant to stay home and work during the coronavirus pandemic or during future storms when officials urge people to stay inside so they won’t be stranded. California’s AB5, which forcibly required many independent contractors in the state to convert to full-scale employee status, has caused an avalanche of harm to those happily working from home. Stories proliferate of people’s struggles after losing their jobs as freelance copywriters, editors, and other professionals who worked from home due to personal diseases or sick family members. Now that Gov. Gavin Newsom has ordered people to shelter in place, they must stay at home without income or even much ability to seek new work. AB5 isn’t working, and the coronavirus has intensified its problems.

There is no shortage of ways to shore up America’s readiness for future disasters. Permanent changes now can help during this pandemic and more so during future ones. Many of these reforms have been overlooked or cast aside as trivial, but they are vital to making sure we are prepared for anything.