Health Care Scope of Practice Laws Reveal Another Weakness in Response to COVID-19 Pandemic

Jeffrey A. Singer

On March 24 Arizona Governor Doug Ducey issued an executive order allowing CRNA’s (Certified Registered Nurse Anesthetists) to practice independently of physicians or surgeons, thus adding needed personnel to the health care work force during this public health emergency. Guidelines issued by the Centers for Medicare and Medicaid Services state that nurse anesthetists should be “supervised” by a physician, thus preventing these well‐​trained specialized nurses from providing anesthesia independently while freeing up physician anesthesiologists so more patients can receive care. Because these CMS guidelines are listed as “optional,” the Governor decided that Arizona will opt out. The press release from the Governor’s office stated:

“Arizona’s hospitals and medical professionals need all the help and resources they can get right now,” said Governor Ducey. “I am confident that this exemption will enhance access to high quality care, provide additional options to our rural hospitals, and is in the best interest of the citizens of Arizona.”

Arizona joined 17 other states that have already opted out of these federal guidelines.

As we are seeing so frequently as the COVID-19 pandemic unfolds, regulations on the state and federal level stand in the way of needed care, equipment, drugs, and tests. In our federal system states have power over occupational licensing and determining the scope of work in which a licensee may engage. In the matter of the licensed health care professions, this is referred to as “scope of practice.”

For decades state legislators have witnessed turf battles among the various health care professions. Nurse practitioners and physicians’ assistants, for example, seek to practice independently of physicians and to expand their scope of practice to meet their level of training. This is usually met with resistance from medical doctors who argue NPs and PAs lack the necessary training to safely provide care beyond a narrowly‐​defined scope. The degree to which the scope of practice of NPs and PAs has been widened varies from state to state. Broadening their scope would help address the current health care crisis. But once the crisis passes, maintaining the broadened scope would give people more health care options and access, particularly in underserved rural areas.

Similarly, state capitals witness battles between optometrists, who seek to expand their scope to include prescriptive authority and simple surgical authority, and ophthalmologists who believe such expansions are dangerous.

In most states doctorate‐​level clinical psychologists are not allowed to prescribe psychiatric medications to their patients, even if their graduate degree program included extensive training in psychopharmacology. Therefore, patients who need medication to assist in their psychotherapy must go through the added expense in time and money to see a physician—usually a psychiatrist—for a prescription while continuing to see their psychologist. Guam was the first U.S. territory to permit psychologists with psychopharmacology training to prescribe to their patients. Currently five states—Idaho, Illinois, Iowa, New Mexico, and Louisiana—also allow appropriately trained psychologists to prescribe.

Pharmacists are another health care profession seeing its scope gradually expanded. All 50 states currently allow pharmacists to vaccinate patients, with states differing on age limitations and types of vaccinations allowed. Rhode Island and Oregon allow pharmacy technicians to perform vaccinations. Several states now allow pharmacists to prescribe oral contraceptives, and last fall California became the first state to allow pharmacists to prescribe HIV pre‐​exposure prophylaxis (PreP) and post‐​exposure prophylaxis (PEP). Pharmacists’ scope of practice can be expanded to include a host of services, including tuberculosis skin testing and interpretation; testing and administering prescription meds for patients with influenza and other viral illnesses or common bacterial infections like strep throat; non‐​sedating or low‐​sedating antihistamines, corticosteroids, and decongestants; and extending routine non‐​controlled chronic medication prescriptions for an additional 30–60 days.

Modern technology lets pharmacist provide many of these services remotely using vending machines in kiosks. In some states, regulations stunt the growth of this option.

Most states now allow direct‐​to‐​consumer lab testing, saving patients the time and inconvenience of a doctor visit and promoting self‐​care and health awareness. Unfortunately, New York, New Jersey, Massachusetts, Rhode Island, and Maryland prohibit or restrict such activity.

On the dentistry side, dental therapists are an emerging profession analogous to physician’s assistants or nurse practitioners. These trained professionals serve underserved communities today in Alaska, Minnesota, Washington State, Arizona, Maine, Vermont and others. Unsurprisingly, lawmakers considering dental therapy legislation receive pushback from the dental profession, which claims to be concerned about patient safety.

In every one of the examples above—and the list is not exhaustive—resistance to reform usually comes from incumbent professions that would lose market share when health care consumers are given more choices. Every example also provides greater health care choice and access to patients. And the added competition that results should help drive down prices.

This unfortunate pandemic provides us with many lessons on how to streamline and improve the provision of goods and services to the public, and how regulations stand in the way. Many regulatory obstacles are being temporarily set aside on all levels of government. When this crisis passes, policymakers should not rush to put those obstacles back in place, only to wait until the next crisis to remove them again. Rather, they should use these lessons as a springboard to regulatory reform.