As the virus spikes again, here are narrow regulatory reforms that can expand access to care
As the long-awaited COVID-19 vaccine is being transported across the United States, more Americans than ever are suffering from the virus. Despite the best efforts of doctors and nurses, it’s apparent that they need more help and more long-term solutions to treat the sick.
Already, the pandemic has led to countless temporary reforms. But, there are a few more simple regulatory reforms that can ease the burden on our healthcare system, provide regulatory certainty and expand the capacity of doctors and nurses right now––when they need it the most––and down the road.
Allow medical professionals to go where needed—physically and virtually
While states are increasingly embracing the value of occupational licensing reciprocity, recognition and compacts, it is still difficult for medical professionals to work across state lines and go where needed. Earlier in the pandemic, temporary state-level executive orders allowed retired medical professionals, professionals in other states and even foreign medical school graduates to work in these states. These measures are valuable and important, but fail to grant the same regulatory certainty as permanent ones. Many state executive orders have also expired. Permanent measures ought to be the next step for states.
Going where needed can be a virtual matter, too. As 2020 has progressed, we’ve seen major shifts in how both state and federal bodies regulate telemedicine services. In many states, governors issued executive orders allowing for more types of telehealth services. State Medicaid programs also began to cover many more telehealth services to encourage beneficiaries to stay socially distanced and out of brick-and-mortar offices. On the federal level, the Office of Civil Rights (OCR) also announced some relaxations to HIPAA restrictions, meaning that Americans could use services like FaceTime to talk to their doctor, which normally violates HIPAA patient privacy restrictions. We also saw the Centers for Medicare and Medicaid Services (CMS) expand insurance coverage to include more telehealth services, many of which were just made permanent. As the official public health emergency period nears its end and temporary measures wind down, it is time for state and federal lawmakers to enact permanent telehealth expansions.
RECOMMENDATIONS:
- State lawmakers should consider universal license recognition legislation with emergency provisions that allow health professionals to work across state lines quickly during public health emergencies.
Notable reforms: Arizona was the first state to enact universal recognition in 2019, and more states from Idaho to Pennsylvania quickly followed. Nineteen states have special statutes to protect volunteers during emergencies.
- State lawmakers should expand the definition of telehealth to include asynchronous and audio- and video-only methods so that people can take advantage of them permanently.
Notable reforms: New York and Idaho made permanent changes to their telehealth definitions this year to include these methods.
- State lawmakers should eliminate requirements that a patient and doctor must have an in-person relationship before they can engage in telehealth services.
Notable reforms: Maryland, for example, largely did away with the in-person requirement for telehealth services this year.
- Both state and federal lawmakers should review health information laws like those in HIPAA to ensure that doctor discretion is optimized for future public health emergencies.
Notable reforms: State and federal health information privacy laws dictate how doctors can interact with their patients for telehealth services; federal restrictions were relaxed to ensure patients received care during the pandemic. Now, there may be ways to revise these restrictions permanently to accommodate better telehealth access, especially during crises.
Expand medical provider and system capacity
Beyond allowing location flexibility, expanding scope of practice for various medical professionals can ease the strain on doctors and nurses during hard times, and decrease medical costs in good times without compromising the quality of care.
Currently, plenty of states allow advanced practice registered nurses (APRNs) to prescribe medication unilaterally and practice without the oversight of a physician. In many states, governors issued executive orders temporarily expanding APRN scope of practice to ease the burden of COVID-19. Governors also issued executive orders allowing pharmacists to furnish some prescription refills, and substitute medications where appropriate.
As we wrote in April, pharmacists
“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.”
Further, as COVID-19 vaccines are prepared for distribution, states must ensure that pharmacists are able to administer vaccines as broadly as possible. Currently, pharmacist vaccination authority differs vastly from state to state; pharmacists are likely not able to administer vaccines as efficiently as they could due to some arbitrary restrictions on patient age and prescription requirements. In fact, in August, the Department of Health and Human Services issued an emergency directive to override many states’ restrictions on pharmacist-administered vaccines temporarily due to a decrease in adolescent vaccination rates because of the pandemic.
The pandemic also shone a light on barriers for foreign medical school graduates who wished to work with patients. During the early height of the pandemic, at least three states—New York, New Jersey and Massachusetts—allowed foreign medical school graduates and those licensed abroad to work to varying degrees. However, America’s general process for licensing foreign medical school graduates and doctors is abysmal: Foreign-trained doctors have to take the boards and go through the same residency programs as a new medical school graduate. This is made even worse by the fact that American residency programs have more applicants than spots and favor Americans.
Of course, legitimate concerns exist in regards to attracting medical professionals to the United States from countries in need. However, evidence suggests that such attraction may actually have the unintended consequence of increasing medical school graduates in those very places. One study found that, in the Philippines, “nursing enrollment and graduation increased substantially in response to greater U.S. demand for nurses.” Indeed, it found that “for each nurse migrant, 10 additional nurses were licensed.”
Expanding the system’s capacity is about more than expanding the scope of practice for professionals, but also about removing arbitrary limits and barriers. Certificate of Need laws, or “CON laws,” are a particularly pernicious burden on the medical system. They require that approval is sought by competitors before a hospital adds medical beds, a new medical facility is open or new medical technologies are purchased. They function as “competitor’s vetoes” and harm competition while reducing access to care and increasing costs.
Here, too, states paused these laws early in the pandemic. Unfortunately, the full benefit will not be realized if these laws are paused and not repealed. The best time to rid these laws was years ago, and the second-best time is now, as our country continues to struggle with a health care system that is restricted in unnecessary ways.
Congressional legislation introduced earlier this year is worthwhile in order to prevent penalization of states that suspend their CON statutes.
RECOMMENDATIONS:
- State lawmakers should consider permanent scope of practice expansion for advanced medical professionals like APRNs and pharmacists to better address patient needs going forward.
Notable reforms: Florida enacted one such reform earlier this year. A bill was introduced in Georgia to expand the scope of practice for physician assistants.
- To ensure a COVID-19 vaccine is administered quickly, state regulations should allow pharmacists to administer them to as much of the population as possible.
- Foreign medical school graduate licensing in the United States should be reformed to allow more doctors who are trained outside the United States to obtain licenses and work with patients faster. This will also require expanding residences and improving skill-matching.
- The temporary repeal of CON laws should be made permanent so that the full benefits of increased medical system capacity can be realized.
Notable reforms: Many states are narrowing their CON laws permanently, while New Hampshire repealed theirs in 2016. Not all states have these laws.
