The COVID-19 pandemic has forced federal and state policymakers, Republicans and Democrats, to acknowledge that clinician‐licensing laws block access to care.
In a March 24, 2020, letter to governors, Secretary of Health and Human Services Alex Azar urged states “to extend the capacity of the health care workforce to address the pandemic.” The recommendations included removing barriers to right‐skilling: “relax scope of practice requirements for health care professionals, including allowing professionals to practice in all settings of care … [and] any requirements for written supervision or collaboration agreements”; “allow physicians to supervise a greater number of health care professionals”; and “modify laws or regulations to allow medical students to conduct triage, diagnose, and treat patients under the supervision of licensed medical staff.”54
In anticipation of a surge of COVID-19 patients, state officials took numerous steps to remove barriers to right‐skilling. Several states allowed medical and nursing students and recent graduates to perform services they are competent to provide and/or made education requirements in those programs less restrictive. Some states expedited the graduation of medical and/or nursing students (e.g., Alaska, Louisiana, Rhode Island). Some granted temporary licenses to medical residents and/or nursing students (e.g., Arkansas, California, Pennsylvania, Rhode Island). Some allowed certain medical and nursing students to provide services without a license (e.g., Delaware, Kentucky, Minnesota, New York).55 (The British National Health Service likewise deployed medical students to cope with the crisis.56) Some U.S. states expedited the licensing process for recent graduates of pharmacy, physician assistant, and respiratory care programs (e.g., Indiana, Iowa) or nurse aide trainees (Oklahoma). Kentucky provided provisional licenses for certain licensing exam applicants. Iowa, Michigan, and other states allowed nursing schools to replace actual clinical experience with simulated clinical interactions.57 Wisconsin allowed nurse aide training programs to reduce the number of required training hours and allowed new RNs to conduct such training.58 At least one state, Wyoming, allowed nursing schools to make sweeping changes to their curricula. “At present there is no need to present substantive changes to the Wyoming State Board of Nursing,” the board wrote to nursing school program directors. “We trust your programs will seek innovative ways to reach student learning outcomes.”59 In addition to allowing nursing students in their senior year to work with a temporary license prior to graduation, Idaho created a new nurse apprentice program to allow “nursing students [to] perform functions as unlicensed assistive personnel” in which their employers would determine their scope of practice based on each apprentice’s training and skills.60
Several states significantly expanded scopes of practice for various clinicians. Of the 28 states that prohibit NPs from practicing independently, 5 (Kentucky, Louisiana, New Jersey, New York, and Wisconsin) completely suspended such barriers, and 16 partially suspended them. Many of these suspensions expanded NPs’ authority to write prescriptions.61 New Jersey Gov. Philip D. Murphy, a Democrat who suspended his state’s restrictions on advanced practice nurses and physician assistants practicing independently, those clinicians prescribing controlled substances, and the tasks physician assistants may perform in operating rooms, wrote:
It is in the public interest to expand the scope of practice of those health care professionals who under current law practice with individualized physician oversight, so that they can be deployed to meet the anticipated needs with more autonomy, greater agility, and with all necessary tools, including independent authority to prescribe controlled dangerous substances when appropriate.62
New York expanded scopes of practice to let nurse anesthetists, physician assistants, and specialist assistants practice independently; to let pharmacy technicians help pharmacists compound, prepare, label, and dispense drugs for home infusion providers; and to increase the number of providers who can supervise emergency medical services personnel.63 Alabama expanded scopes of practice for NPs, nurse midwives, nurse anesthetists, physician assistants, and anesthesia assistants, freeing them to “practice to the full scope of their practice as determined by their education, training, and current national certification(s).”64 Colorado expanded scopes of practice for a host of health professionals (podiatrists, optometrists, chiropractors, veterinarians, dentists, physical therapists, physical therapy assistants, occupational therapists, occupational therapy assistants, speech‐language pathologists, surgical assistants, surgical technologists, volunteer retired nurses, and nurse aides) as well as (unlicensed) nursing students and medical assistants by allowing NPs and nurse anesthetists to delegate tasks to them.65 States including California, Maryland, and North Dakota allowed pharmacists to order and collect specimens for COVID-19 tests.66 States including Florida and Nebraska expanded scopes of practice for emergency medical technicians.67 Massachusetts Gov. Charlie Baker, a Republican, suspended that state’s physician‐supervision requirements and restrictions on prescriptive authority for advanced practice nurses with more than two years of experience.68 Michigan Gov. Gretchen Whitmer, a Democrat, suspended the state’s licensing laws to allow all hospitals, nursing homes, surgical centers, hospice practices and facilities, emergency or other medical transport companies, and other health care facilities to ignore Michigan’s licensing, scope of practice, and physician‐supervision restrictions and decide for themselves how to use every health professional and student, paid or volunteer, that they can find.69 Maryland implemented a similar waiver with respect to health care facilities.70 Whitmer explicitly suspended physician‐supervision requirements for NPs and physician assistants and allowed RNs and licensed practical nurses to order COVID-19 tests.71
States took other steps that did not directly affect right‐skilling but removed other barriers to care that licensing creates. Most states—including New Jersey and New York—suspended prohibitions on clinicians in other states providing care to their residents, whether in person or via telemedicine, either outright or by way of conditional waivers that require registration or an emergency license.72 Several states removed barriers to clinicians providing care after they retired or otherwise allowed their licenses to lapse.73 A few states temporarily reduced the barriers to entry for doctors already licensed in foreign countries. New Jersey’s Gov. Murphy allowed such doctors to practice in that state without a license if they had practiced in other countries within the past five years and worked in clinics or hospitals for at least five years.74 New York and Massachusetts did not suspend their requirements that foreign‐trained doctors obtain licenses from those states. But Massachusetts’s Gov. Baker, a Republican, and New York Gov. Andrew Cuomo, a Democrat, issued executive orders that reduced for such doctors the number of required years of graduate medical education to two years and one year, respectively.75
Incumbent clinicians resisted the removal of barriers to right‐skilling. Virginia Gov. Ralph Northam, a Democrat, temporarily allowed out‐of‐state NPs to practice in Virginia and suspended physician‐supervision requirements for NPs who have more than two years of clinical experience. The Medical Society of Virginia—which lobbies on behalf of Virginia physicians—complained that Northam did not consult them before “needlessly” taking these steps.76 The organization asked Northam to protect physicians from competition by allowing the waivers to expire, to subsidize physicians, and to provide physicians protection from malpractice liability.77
California’s physician lobby loomed large over that state’s pandemic response. The Healthforce Center at the University of California, San Francisco recommended the state expand its health sector capacity by letting NPs and nurse midwives practice independently; allowing hospitals to grant those nurses admitting privileges; and expanding the scopes of practice of certified nursing assistants, licensed vocational nurses, clinical nurse specialists, phlebotomists, medical laboratory technicians, clinical laboratory scientists, and paramedics.78 Instead, California Gov. Gavin Newsom, a Democrat, delegated such questions to executive‐branch agencies. The state’s Department of Consumer Affairs refused to allow NPs to practice independently and instead increased the number of NPs each physician could supervise. Critics argued that the change would have little effect. “It’s unclear how this is helping anybody,” said Garrett Chan, CEO of HealthImpact, which advocates for a broader role for nurses in delivering care.79 Unlike states that took the initiative to expand scopes of practice for emergency medical personnel, California’s Emergency Medical Services Authority merely agreed to entertain such proposals from localities.80 Critics attribute California’s relatively tepid measures to the influence of the state’s physician lobby, which “contributed almost $6 million to candidates, political action committees, and other campaigns since mid‐January 2019.”81
State government responses to COVID-19 mirror temporary removals of barriers to right‐skilling that governments have implemented during past pandemics. During the 1918 influenza epidemic, Spain sent medical students to practice in towns that lacked physicians.82 In 2009, many U.S. states responded to the H1N1 influenza outbreak by removing barriers to pharmacists, emergency medical technicians, dental hygienists, medical and nursing students, veterinarians, and other clinicians administering vaccines.83 Some states have shown an increasing willingness to suspend scope‐of‐practice restrictions to cope with predictable disease outbreaks.84 In response to the 2013 and 2018 flu seasons, for example, New York’s Gov. Cuomo issued executive orders removing barriers to pharmacists administering flu vaccines.85
When public health crises become widespread enough, policymakers readily acknowledge that clinician licensing creates barriers to health care and suspend or discard many of those barriers—sometimes without so much as a nod to the incumbent clinicians who advocate maintaining them. When the public health crises end, however, incumbent clinicians again have their way. The scope‐of‐practice waivers that states implemented in response to Hurricane Katrina, the H1N1 flu outbreak, the 2013 and 2018 flu seasons, and other public health emergencies expired when those emergencies ended.86 The barriers to care returned, even though many individual health crises remained.