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Medical Licensure Law Suspensions During COVID-19 Present Opportunity for Change

By Alexa Richardson

As the coronavirus pandemic threatens to overwhelm the health care system, states have responded by broadly suspending licensure laws for health care providers.

The collective rollback of licensure laws is an opportunity for states to reexamine their priorities around provider licensing, and to pursue values like access to care and evidence-based scope of practice over protection of provider interest groups.

Health and Human Services (HHS) has backed the effort to suspend licensure laws, issuing guidance to governors advising them to allow providers licensed in any state to practice, waive certain scope of practice limitations, and relax telehealth licensing standards.

As of April 15, forty-four states had waived certain licensure laws due to the pandemic, including New York, Delaware, Massachusetts, New Jersey, Pennsylvania, Arizona, California, Florida, Louisiana, South Carolina, Georgia, Texas, Mississippi, North Carolina, Tennessee, and Washington.

States have altered a range of provisions to address the need for more providers. Aside from permitting providers licensed in other states to practice without meeting in-state licensure requirements and broadening the practice of telehealth, states are: suspending scope of practice limitations; allowing providers whose licenses lapsed in recent years to practice; extending renewal deadlines; waiving requirements to show proof of medical malpractice coverage; expediting licensure processes; waiving fees and criminal background check requirements; and suspending continuing education requirements for renewals.

These decisions are in line with efforts in past decades to enable easier movement of providers between states, including in emergencies. Existing legislation includes the Uniform Emergency Volunteer Health Practitioner Act (UEVHPA), currently enacted in eighteen states and the District of Columbia, which allows volunteer medical workers licensed in other states to practice during emergencies. There are also several state licensure compacts that entail recognition of member-state licenses on a routine basis, notably the Enhanced Nurse Licensure Compact which allows reciprocal licensure between thirty-two states for nurses.

Waiver of licensure laws during declared emergencies is a standard measure states take to alleviate crises, but this is the first time almost all states have relaxed licensure laws simultaneously.

The pandemic reveals what policy experts have long decried: that the byzantine system of state-specific licensing laws in the U.S. forms a significant barrier to accessing care, and places undue strain on our health care system. Though they were put in place with the important goal of establishing minimum standards for education and training, their effects have expanded over time. Licensure laws can reduce the number of providers available, limit interstate mobility, and constrain provider scope of practice beyond that indicated by medical standards of care. Such laws have historically developed through lobbying efforts by professional associations, particularly the American Medical Association, and continue to be shaped by provider interest groups.

The nature of the pandemic, which is predicted to last in some form over at least the coming year and involve interspersed regional peaks, brings the limitations of state licensure systems into sharp relief.

As the need for flexibility and greater numbers of providers stretches into the next year, it may reveal the benefits of easier access to providers and broader scope of practice in areas of health care outside COVID-19 care. This could lead states to rethink their approach to licensure moving forward.

For example, states are easing restrictions on the scope of practice of providers — for instance, allowing nurses to do patient management in certain routine cases, referring to physicians only where complications arise, or enabling certified nursing assistance to administer more medications without having to call in a nurse. Advocacy groups have pushed for such changes for years, and the novel coronavirus pandemic could hasten the widespread adoption of such policies. These changes may impact the practice of medicine beyond the pandemic response. Once providers and health systems get used to such arrangements over the course of the lengthy pandemic, these changes in the ways that care is administered might stick.

Alexa Richardson

Alexa Richardson is a law student at Harvard Law School and a Certified Professional Midwife. Prior to coming to law school, Alexa cared for families as the Director of a private midwifery practice in Baltimore, and led successful efforts to license and regulate Certified Professional Midwives in Maryland in her roles as President of the Association of Independent Midwives of Maryland (AIMM) and Chair of the Direct-Entry Midwife Committee under the Board of Nursing. Her research interests center on pregnant and birthing people, with particular focus in expanding the legal rights and protections available to this population. At HLS, Alexa serves as an editor of the Harvard Law Review, and as a student attorney in the Prison Legal Assistance Project.

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