States Loosen Medical Regulations Post-Pandemic

During the COVID-19 health crisis, states suspended limitations on telemedicine and scope of practice. A number are now making those changes permanent.

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The Make-A-Wish Foundation is famous for arranging memorable experiences for sick children, such as trips to Disneyland or meetings with their favorite celebrities. The foundation also offers more mundane services, however. If a child lives miles from a medical center, for example, it might arrange for a local car dealer to provide rides.

While she was running the foundation’s West Virginia chapter, Doug Skaff Jr.’s wife made many calls like that. This year, as minority leader of the West Virginia House, Skaff sponsored a bill to expand the use of telemedicine, extending it to all medical professionals and allowing out-of-state providers to practice.

“Because we’re such a rural state, it can take hours to get to the closest hospital,” Skaff says. “This really helps some of our elderly people get in front of a specialist a lot quicker.”

Skaff’s approach is not unique. Telemedicine expansion bills have been signed into law this year in a half-dozen other states, including Indiana, Kentucky and South Dakota. Meanwhile, Arkansas, Utah and Virginia all enacted multiple laws regarding so-called “scope of practice,” generally making it easier for physician assistants, nurse practitioners and nurse anesthetists to practice without a doctor’s supervision.

“We are not trying to create less quality, we’re just trying to create greater access,” says Arkansas state Sen. Kim Hammer. “A lot of this is just breaking down the barriers that have been created by laws over the years.”

Hammer had been trying to move scope of practice bills throughout his 11 years serving in the Legislature. It’s obvious what made the difference this year. Arkansas, like many states, loosened restrictions in the face of the coronavirus pandemic. Lawmakers there and elsewhere have concluded that if this saved lives during an emergency, it might be time to abolish such restrictions altogether.

“The pandemic has demonstrated the wisdom of removing barriers between patients and their doctors and elevated it to a whole new level,” says Dean Clancy, senior health policy fellow with Americans for Prosperity, a conservative advocacy group. “What it all adds up to is what we hope will be a transformation of American health care that’s permanently freer and better for everyone.”

Not every state is deregulating telemedicine, or medicine in general. Some states that lifted restrictions during the pandemic — including allowing out-of-state providers to come in and practice — are now reversing course. And not everyone believes that alternatives to in-person care involving a physician lead to better care.

“It’s very helpful to see the patient,” says Scott Smith, director of government affairs for the Arkansas Medical Society. “If you’re doing it over the phone, it’s sort of like when you go into your first visit and your doctor stays out in the hallway talking to you and asking you questions.”

Doctors may have been long resistant both to telemedicine and certainly to the idea of having other health-care workers operate without their supervision. At this point, there’s no going back to the status quo.

“Would we go back to the pre-pandemic state? I doubt it very much,” says Rashid Bashur, a health management and policy professor at the University of Michigan. “The genie’s out of the bottle.”

Bashur points out several potential drawbacks regarding the expansion of telemedicine.

Private companies might sign up patients without offering the kind of track record or institutional supervision and safeguards offered by established health institutions. There could also be problems with continuity of care. A patient could Zoom with one doctor during a first visit and some other doctor the second or third time.

“The provider might not have the incentive to dig into the patient’s record and could miss a diagnosis,” Bashur says. “That would not be in the best interest of the patients and not likely to deliver the best quality care there is.”

A survey of physicians during the pandemic found that they preferred conducting follow-up visits via telehealth compared to first encounters, due to concerns about lack of physical exams or missing other information. Doctors were less likely to be satisfied overall with telehealth than patients.

But Judd Hollander, an associate medical college dean at Thomas Jefferson University, says that telemedicine is just a delivery mechanism, not inherently better or worse than treating someone in a building. “There is no data that I have ever seen that the presence of telemedicine in a system reduces the quality of care,” he says.

A doctor treating kidney stones or heart failure through telemedicine won’t be able to run many tests. On the other hand, a doctor physically in an emergency room might also just refer patients elsewhere for testing or procedures.

“Telemedicine is an episode of care, it’s not the entirety of care,” Hollander says. “One should suspect that after you get care with telemedicine that a certain percentage of patients will need subsequent care. That should be the goal.”

The main argument in favor of telemedicine is that it expands access, making it easier for patients to see physicians, including specialists, without having to drive for miles. Telemedicine has been a boon for seniors with mobility issues, as well as members of the Navajo Nation facing serious transportation hurdles, says Arizona state Rep. Regina Cobb.

She notes that one of her constituents is a young girl with disabilities who “constantly” had to make the three-hour drive from Yuma to Phoenix. Telemedicine has since spared her many trips. “What it brought in terms of time and comfort to that child can’t be overstated,” Cobb says.

The argument for allowing more professionals to practice without a physician’s supervision is similar. Des Arc, Ark., is a delta town with about 1,600 residents. It used to be home to a clinic run by a nurse practitioner. Eventually, she had to shut it down. She wasn’t reimbursed by insurance companies because she wasn’t overseen by a physician. “That was a tragedy for that community,” Sen. Hammer says. “She lost her practice for no good reason.”

Doctors and other practitioners — not to mention different kinds of doctors — have been fighting turf wars for years. “What’s the demarcation between the foot (which podiatrists can treat) and the ankle (which they can’t)?” asked the Texas Supreme Court in a 2015 ruling that settled a decade-long fight between the state medical association and its podiatrists’ associations.

Still, Smith, the Arkansas Medical Society lobbyist, says it’s generally overstated that freeing up more practitioners from physician supervision will lead to more care in underserved areas. Nurse practitioners are no more likely to move to rural quarters without much of a potential patient base than doctors. “There are 20-something states that have had more of an independent practice environment for a while now,” he says. “It has not created a substantive difference.”

Proponents of loosening up medical regulations enjoyed fresh advantages during the pandemic, however. Not only did it demonstrate the efficacy of trying new approaches, but it also kept doctors and other defenders of the status quo from being able to flood state capitols whose doors have largely been shut to the public.

“It was really difficult and frustrating when you know that physicians want to come down and testify and show up en masse," says Smith, "but there were these practical limitations.”
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Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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