June 18, 2020
By Dr. Murray Feldstein

The COVID-19 pandemic is focusing attention on those regulations that render our healthcare system unaffordable and inaccessible for many Americans. The shortage of competent personnel in critical areas challenges our assumptions about how we should educate and license various healthcare professionals.

Nurse practitioners, Certified Registered Nurse Anesthetists, and pharmacists are being granted temporary “emergency” licenses in order to legally provide skills that are in short supply—skills they’ve known how to do all along. Some medical schools have shortened the time necessary for their graduates to get into the workplace. Never mind that more complex skills are required during the emergency than when things are quiet.

This isn’t the first time these regulations have been relaxed: It’s happened before in times of war and natural disasters. But the when the emergency is over, the regulations are re-imposed, leaving only disadvantaged communities to suffer from the shortages we all experienced during the emergency.

A linchpin of American jurisprudence is that a person accused of a crime should be presumed innocent until proven guilty. Only then does the state have the right to restrict the liberty of the defendant—to restrain or imprison him or her if necessary. But in every one of our states, the opposite is true when it comes to licensing healthcare providers. Unless they are medical doctors, osteopaths, or dentists, all other healthcare providers are presumed to be incompetent. They are prevented from practicing what they have been trained and certified to do.

Less controversial and less harmful systems of licensing regulations are based on a presumption of competence. This is the standard we should adopt for healthcare providers.

Drivers’ licenses and pilots’ licenses are two examples. If an applicant passes tests demonstrating knowledge and skill, the license is granted. These are non-politicized licensing approaches: In the case of drivers’ licenses state legislators approve the standards of competence established by experts in the field. In the case of pilots, the FAA sets the standards. Once an applicant meets those standards of competence, politicians don’t get to decide who drives a car or fly a plane. How would you feel if, after you successfully passed the state drivers’ exam, you were denied driving privileges because an organized group of taxi drivers convinced the legislature that too many new drivers were endangering public safety by working for Uber or Lyft?

Healthcare licensure is politicized. State law establishes the scope of practice which establishes the procedures and processes the healthcare professional is allowed to perform. Unfortunately, this is usually the result of a legislative process where vested interests (would-be competitors) usually seek to limit scope, preventing the professional from practicing at the top of their education and training.

Every state is different, and the regulations are often arbitrary. A nurse practitioner who has been certified competent to examine, diagnose, and treat patients in one state can be fined or imprisoned if he or she tries to practice in another state that refuses to accept their certification.

It doesn’t need to be this way. Healthcare licensure can be de-politicized. There are public agencies, such as the U.S. Department of Education, and private organizations, like the Institute for Credentialing Excellence, that are experts in the field of setting accreditation standards. Any healthcare worker, no matter the degree behind their name, who has been certified competent by a professional organization meeting those accreditation standards should be presumed competent until proven otherwise. They should be permitted to practice freely what they have been trained and certified to do—at the top of their license.

State professional boards need to concentrate their energies weeding out the very few incompetent healthcare workers—be they doctors, nurses, or others—rather than blocking the overwhelming number who are competent. A more diverse workforce would evolve, and patients would have greater access to affordable and competent healthcare.

Dr. Murray Feldstein is a Visiting Fellow in healthcare policy at the Goldwater Institute.

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