During coronavirus, how to lead on healthcare regulatory flexibility

By | March 19, 2020

As the coronavirus epidemic spreads, interrupting the global economy and causing mass disruption to societies the world over, federal agency officials and governors in the United States are taking some critical steps to loosen healthcare regulations that stand in the way of a robust, effective response. But more must be done. While all eyes are on Washington, some of the most important steps that can be taken are at the state level. Telehealth, license portability, and rules that govern how many health facilities are allowed to operate need and must be the focus for health regulators and can have a massive benefit going forward.

The coronavirus pandemic threatens to strain the supply of hospital beds, pharmaceutical products, medical devices, lab supplies, and more — basically every part of the healthcare system is at risk. Whenever a regulation stands in the way of increasing the supply of items and services and can be relaxed without harming patient health and well-being, policymakers should take a good look at increasing regulatory flexibility.

Both federal and state governments have taken positive steps in this crisis. For example, the Centers for Medicare and Medicaid Services expanded telehealth services available to Medicare beneficiaries. Under prior regulations, these services were often restricted to people in rural or remote areas. Now, Medicare beneficiaries can conduct “common office visits, mental health counseling, and preventive health screenings” through telehealth. These patients are in some of the most at-risk populations for adverse reactions to COVID-19, so expanding their telehealth options is crucial to preventing both the spread of the disease and fatalities from it.

Late last week, CMS also used its authorities during a national emergency to waive a number of Medicare rules and requirements: 1) requiring seniors to have a three-day hospitalization to be covered for a skilled nursing facility stay; 2) requiring critical access hospitals to limit their number of beds to 25; and 3) requiring providers to be licensed “in the state where they are providing services” (this last waiver applies to Medicare and Medicaid). CMS is also making it easier and quicker for providers to sign up for Medicare Part B billing privileges.

The Centers for Disease Control and Prevention recently recommended to providers that they collect only one swab from patients being tested for coronavirus instead of two. The American Society for Microbiology applauded the move, saying it will “cut the amount of testing reagents needed in half, which is a critical measure to take during a public health emergency such as this.”

There are governors across the country who have been leading the way in policy responses at the state level, as well. Maryland Gov. Larry Hogan, a Republican, is reopening closed medical facilities to increase Maryland’s bed capacity by 6,000. He’s also introducing interstate reciprocity for medical professional licensing, meaning medical professionals licensed in another state can practice in Maryland to assist patients. And he’s trying to reactivate inactive practitioners to increase the state’s supply of providers during the pandemic. Hogan is also expanding the scope of practice for healthcare practitioners (such as physician assistants, registered nurses, and nurse practitioners), as long as supervisory personnel (such as doctors) conclude they can competently engage in certain activities.

Massachusetts Gov. Charlie Baker, a Republican, is taking a lot of similar actions in Massachusetts. His administration announced that a physician who retired in the last year in good standing may have his or her license reactivated to assist coronavirus patients. He also introduced interstate license reciprocity and is providing for the continuity of nurse, pharmacist, and physician assistant licenses that lapse for up to 90 days after the state of emergency.

States including New York are setting up drive-through testing sites to test rapidly and safely a higher number of residents for the coronavirus. The first facility set up in New York, in New Rochelle, “includes six drive-through lanes to handle 200 cars a day, [Gov. Andrew] Cuomo said. That’s about 15 minutes per car.”

These are admirable steps that have been taken by federal and state regulators, but even more can and must be done to avoid a deeper and longer health and economic crisis. Federal and state lawmakers should consider additional measures, including:

● Expedited approval of drugs and devices meant to treat the coronavirus via approval reciprocity
Expanding telehealth services at skilled nursing facilities, which care for some of the nation’s most vulnerable patients
● Loosening state certificate of need laws that unduly restrict expansion of hospital beds
● Loosening Obamacare’s restrictions on physician-owned hospitals
● Protecting health savings accounts funds from seizure in bankruptcy proceedings

This is an unprecedented economic and public health emergency, but Trump administration officials and governors from both parties are already stepping up to avoid supply shocks and shortages in the healthcare system. Policymakers can do even more in the coming days and weeks, and their efforts could make the difference between beating the pandemic quickly or facing a long disruption to our daily lives.

Andrew Lautz is a policy and government affairs manager for the National Taxpayers Union.