Amid the pandemonium of a turbulent election and a resurgent virus, the Department of Veterans Affairs quietly released in mid-November what could be a groundbreaking new policy.
The interim final rule allows VA health providers to “practice their health care profession consistent with the scope and requirements of their VA employment, notwithstanding any … State requirements that unduly interfere with their practice,” such as state licensing, credentialing, and registration.
VA clinicians have for years practiced in states other than the ones in which they were licensed. But they have not been entirely protected, remaining vulnerable to enforcement actions for not having an in-state license or for practicing in ways that aren’t consistent with state regulations, such as a non-physician clinician diagnosing illness or prescribing medications. The new rule would allow VA clinicians to practice across state lines without fearing potential sanctions. It also allows the VA to create national standards of practice for its health providers.
Where VA clinical protocols and state practice requirements conflict — particularly with regard to what non-physician providers can and cannot do — the new rule would protect VA clinicians against punitive action by the state. For example, advanced practice nurses who work for the VA have considerable autonomy, including the ability to prescribe medications under standards of care protocols. Numerous states, though, do not allow advanced practice nurses to prescribe medications. Without the new rule, they could be charged with unlawfully prescribing and face fines, suspensions, or revocations of their licenses.
This policy, which could catalyze a movement to rethink the U.S.’s federalist system of health employment law, comes at an important time.
Throughout the pandemic, health providers at the frontlines — and their families — have borne immense personal risks. Their risk of infection is at least three times higher than in the general population. In Scotland, between March and June 2020, 17% of Covid-19 cases occurred in health care workers or their loved ones. According to a database maintained by Kaiser Health News and The Guardian, as I write this more than 1,400 health care workers have died of Covid-19.
The risks, over months and months, have inevitably produced a combination of sickness, fear, frustration, and burnout in providers, leading some to drop out of the workforce. Medical facilities — hospitals, surgical centers, free clinics, nursing homes, and others — have faced considerable staffing shortages. Those in America’s underserved and rural regions have been hit hardest. Early furloughs and layoffs of health providers due to financial strain have only made things worse.
Facilities have scrambled to fill these staffing vacancies.
Since March, the Department of Veterans Affairs has moved some 3,000 staff across state lines to work in hard-hit VA hospitals and medical centers. Non-VA facilities from coast to coast have relied on thousands of “travelers” — health care staff who are dispatched to areas of acute need in times of crisis. The needs have been particularly pressing in non-urban regions: According to data provided to me by Fastaff, a travel staffing agency, Iowa, Kansas, Nebraska, and North and South Dakota have faced unprecedented demand for clinicians this year. That’s in addition to the tens of thousands of National Guards troops mobilized to support health care operations across the country.
Yet despite this need, credentialing has remained subject to state-specific legislation that is an artifact of a bygone snake-oil era.
The legal precedent for independent state licensure is an 1889 Supreme Court decision prosecuting a West Virginia man who practiced “eclectic medicine,” a credo of medicine based on the use of botanicals such as betony (bishop’s wort), maidenhair (gingko), and sanguinaria (bloodroot). The case’s federalist legacy lives on to this day: License portability — the ability to practice across state lines — is constrained despite the innumerable rigorous checks and balances that ensure physician quality through contemporary training.
Clinicians like E. Hanh Le have encountered these administrative hurdles firsthand.
As she watched Covid-19 consume New York in March, and saw Gov. Andrew Cuomo’s plea for volunteers, the California-licensed primary care physician turned health tech executive sought to lend a hand in the Big Apple. But she didn’t get far. Despite reaching out to friends, colleagues, Facebook groups, specialty societies, the Medical Reserve Corps, and even the American Medical Association, “I just hit a wall,” Le told me. “It felt like a situation where the snake was eating its own tail.”
Trying to join the federal and local Medical Reserve Corps was replete with bureaucratic hurdles. She didn’t have medical malpractice insurance, which she had terminated more than 10 years ago. And she’d be on the hook for New York state sanctions, since she wasn’t licensed there. “I tried every which way. This is the life I signed up for way back when,” Le told me. “Why was it so damn hard?”
Some states have moved in recent years to mitigate such hurdles. Since 2017, 30 states have joined the Interstate Medical Licensure Compact, a consortium that allows providers to practice across borders in member states.
Even so, complexities abound: The compact applies only to physicians, and only physicians licensed in specific states are eligible to participate. They must apply for licenses state by state. And the privileges they are granted may need to be re-applied for every year. Perhaps as a result of these hurdles, as of the last update on Oct. 31, 2020, only 5,080 compact licenses have been approved (less than 0.5% of practicing U.S. physicians).
Analogous compacts exist for nurses and emergency medical technicians but they, too, are complicated and incompletely adopted across the country. Other initiatives exist, like the Uniform Emergency Volunteer Health Practitioner Act, which allows health providers to work in states other than the one in which they are licensed during a declared emergency, but only 19 states have enacted it and advance registration is required to participate.
Myriad other policies addressing staffing issues have been adopted during the time of coronavirus as stop-gap measures but they, too, have been largely uncoordinated and enacted on a state-by-state basis. Meanwhile, scope of practice remains subject to ample cross-state variability: While advanced practice nurses can prescribe medications in Arkansas and physician assistants can prescribe in Alaska, doing so is against the law in many other states.
The time is right for the sort of licensing and practice reform inaugurated by the new VA rule. During the current Covid-19 surge, the VA continues to set daily case records, with its staff and facilities being pushed to the brink.
The new rule faces resistance from individuals and lobbyists concerned that quality of care would be harmed by expanding scope of practice. But these allegations are empirically unjustified. Analyses since the 1980s have illustrated that care rendered by non-physician providers for routine conditions is at least as good as that of physicians, if not better.
Reforms like the VA rule promoting the mobility and autonomy of health providers can provide the foundation to ensure that patients across the country can receive the pandemic care they need and deserve. Such reforms are still more important as the virus emerges in ever-more-under-resourced regions of the country.
The new rule also creates a precedent beyond Covid-19. It lays the groundwork for a health care system better able to serve all Americans, in times of crisis and normalcy alike.
Eli Cahan is a master’s student in health policy at Stanford University as a Knight-Hennessy Scholar, a medical student at New York University School of Medicine, and a freelance journalist.