Azar Urges Governors to Modify Statutes, Regulations to Expand Health Care Workforce

On March 24, 2020, US Department of Health and Human Service Secretary Alex Azar published an open letter to governors seeking state-level policy changes to mitigate the spread of coronavirus and to bolster the nation's ability to respond to the growing number cases.

The letter focuses on eliminating variations in state law that may limit the ability of health care professionals to respond to the increasingly acute need for health care services throughout the country.

The letter addressed 8 substantive areas of requested policy change. They are:

1. Law/regulation modifications: medical students.To the extent deemed appropriate by state health authorities, states should modify laws or regulations to allow medical students to conduct triage, diagnose, and treat patients under the supervision of licensed medical staff members.
2. Law/regulation modifications: signatures.States should modify any laws or regulations that require a signature for deliveries of pharmaceuticals to allow signature-less deliveries, which can help prevent contact between delivery personnel and recipients.
3. Liability protections.States should develop a list of liability protections for in-state and out-of-state health professionals, including volunteers. States should work with their respective insurance commissioners to modify or temporarily rescind provisions in medical malpractice policies that may prevent insurance coverage of a health care professional's work responding to the COVID-19 emergency in another state and work with insurers to have them waive such limitations in their policies. To prevent medical tort liability from deterring volunteer physicians, Congress passed 2 volunteer liability reform laws: the Health Insurance Portability and Accountability Act (HIPAA) and the Volunteer Protection Act (VPA). HIPAA protects physicians who volunteer in free clinics, provided the clinic sponsors the physician by applying to the government. Under the VPA, volunteer health care professionals of a governmental entity or nonprofit organization are not liable for economic damages caused by providing medical care within the scope of their volunteer responsibilities, though this exemption does not extend to non-economic damages. The VPA only protects volunteer health professionals practicing with a license in that state, unless state authorities allow for licensure exceptions. The VPA preempts state laws that are inconsistent with the VPA, unless those state laws provide additional liability protection for volunteers. Azar expressed his strong desire to mitigate variations in liability protections that may confuse or deter health professionals. Each governor should quickly develop a list of the relevant state liability protections and waivers for health professionals during a national or state emergency and provide public guidance for any steps that out-of-state professionals need to take to provide medical care.
4. Multi-state emergency management laws.States should implement policies to allow health professionals certified or licensed in other states to practice in their states, either in person or through telemedicine. During emergencies, many states have regulatory mechanisms that allow health care professionals licensed in 1 state to provide aid in another state without being licensed in that state. These include emergency powers that a governor may use to modify or temporarily suspend state licensing requirements to allow out-of-state professionals to practice and mutual aid compacts, which are multi-state emergency management laws that provide for license reciprocity when a governor has declared an emergency. Azar asked for assistance in activating these and other health care professional licensure exceptions, and that states waive any certification or licensure fees. He also encouraged states to work with their state licensing boards to establish enforcement moratoria for licensure and scope-of-practice issues to ensure that health care professionals can quickly respond without fear of penalty.
5. Physician supervision expansion.States should allow physicians to supervise a greater number of health professionals and to do so using remote or telephonic means. States should eliminate any restrictions on nurse practitioners (NPs), other registered nurses (RNs), physicians, and other caregivers who may furnish care in the homes or other setting, including restrictions for these providers to be aligned with home health agencies.
6. Rapid certification/licensure and recertification/relicensure.States should allow for rapid certification/licensure and recertification/relicensure of certain health care professionals. When possible, states should use their authority to activate these procedures and waive fees to allow for rapid relicensure/recertification of retired health care professionals.
7. Regulatory standards waiver.States should waive certain regulatory standards not necessary for the applicable standards of care to establish a patient-provider relationship and diagnose and deliver treatment recommendations utilizing telehealth technologies.
8. Scope-of-practice requirements.States should relax scope-of-practice requirements for health care professionals, including allowing them to practice in all settings of care. States may be able to modify scope-of-practice requirements through a governor's emergency powers or in accordance with state emergency management laws, including requirements for collaboration agreements or written supervision to avoid significant delays in the provision of services. Alternatively, states may be able to waive geographic restrictions on physicians supervising NPs or physician assistants.

Ned Milenkovich, PharmD, JD, is chairman of the health care law practice at Much Shelist PC in Chicago, Illinois, and is the former vice chairman of the Illinois State Board of Pharmacy.