How more states can free up emergency health care

State policymakers, like so many of us, want to know how to help health care professionals rise to the extraordinary challenge of fighting COVID-19. Their first task should be to suspend laws that stand in the way of patient care, including certificate-of-need laws, barriers to telemedicine and scope-of-practice rules for health care professionals.

In states with certificate-of-need (CON) laws, health care providers need regulators’ permission to open new facilities, expand existing ones or acquire new equipment. The process doesn’t evaluate qualifications; instead, it attempts to assess whether or not a community “needs” the service in question. Today, we clearly need more of the services that CON laws restrict. 

Controversially, established providers may challenge the CON applications of their would-be competitors. Applicants can expect the process to take months or even years, and it can sometimes cost them hundreds of thousands of dollars.

Academic studies (including several by Mercatus scholars) have found that CON laws are associated with higher costs and lower-quality care. More alarming today is the effect on access to care. CON laws are associated with fewer hospitals, ambulatory surgery centers, rural hospitals and rural ambulatory surgery centers, hospital beds, hospice care facilities, dialysis clinics and hospitals offering MRI, CT and PET scans. They are also associated with longer driving distances and greater racial disparities among those seeking care.

As of a few weeks ago, 28 states required CONs for acute hospital beds. Many even required a CON to transfer a bed between facilities. Controlling for other factors, there are approximately 1.31 fewer hospital beds per 1,000 residents in these states. And at 2.77 hospital beds per 1,000 residents overall, the United States already lags behind hard-hit Italy (3.18 beds per 1,000), China (4.34) and South Korea (12.27).

Providers in states that eliminated their CON programs years or even decades ago not only have more beds but are better able to quickly obtain or reallocate beds. Eighteen states have temporarily suspended or modified their CON laws to allow providers to better-respond to the pandemic. Over the next few weeks, we will learn whether this reprieve is too little, too late.

Telemedicine permits health care professionals to see and even treat patients from long distances. With overcrowded clinics and hospitals and the need to keep our social distance, it is an important front-line tool. This is especially true given the rapid pace at which technologies and treatments are advancing. One company claims to have already developed the first at-home coronavirus test.

Federal telemedicine policy changes are underway, such as new rules that would permit Medicare to cover telemedical consultations and physicians who participate in federal health programs to be paid for offering telemedicine services in states where they do not hold a license.

But in many places, state laws may make these federal moves moot. As of 2015, 36 states still required a face-to-face visit for all prescriptions. Some states also require an assistant (termed a “telepresenter”) to be physically present with the patient. More should follow Arizona’s lead and relax these rules. 

Turning to scope-of-practice, there is approximately one practicing physician for every 500 Americans. If we include physicians assistants, nurse practitioners and other highly trained medical professionals, there are about 1.6 caregivers per 500. But states limit what these highly qualified providers may do for patients.

The National Academy of Medicine recommends that nurse practitioners be permitted “full practice authority.” According to the American Association of Nurse Practitioners (AANP), this means that they be allowed to “evaluate patients; diagnose, order and interpret diagnostic tests; and initiate and manage treatments, including prescribing medications and controlled substances.”

Only 23 states permit this level of authority. Another 17 permit it to a more limited degree. In 11 states, nurse practitioners have little independent authority. In many cases, state law requires career-long direct supervision by another provider such as a physician.

Studies find that when nurse practitioners are limited, patient care is more expensive while quality of care is no higher. Allowing more nurse practitioners and physicians assistants to practice up to their qualifications would mean more providers per patient. More physicians would be free to concentrate on the most-serious cases.

Under the best of circumstances, medical professionals should be able to draw on their considerable expertise and training to offer whatever services their patients need whenever and wherever they are located. This is even more important in the midst of a pandemic. 

Matthew Mitchell is the director of the Equity Initiative at the Mercatus Center at George Mason University and author of a new policy brief, “First, Do No Harm: Three Ways That Policymakers Can Make It Easier for Healthcare Professionals to Do Their Jobs.” His father, William Mitchell, is a physician, board-certified in internal medicine.