The CMS has temporarily expanded the scopes of practice for several allied health professions in response to the COVID-19 pandemic, but once the crisis ends it will be up to states to make permanent changes.
The CMS issued new waivers on Thursday that will allow providers to practice across state lines and at their top of license.
The new flexibilities permit physicians to treat patients at rural hospitals via telehealth, even if they're out-of-state. Nurse practitioners can perform select medical exams for Medicare patients in skilled nursing facilities, even if they're not related to COVID-19. Occupational therapists can do initial and comprehensive assessments for homebound patients, and hospice nurses no longer have to participate in hospice aide in-service activities, among other waivers.
While the regulatory easing will provide some relief to providers grappling with staffing shortages amid the unprecedented pandemic, individual states will have to craft a more permanent solution, experts said. Although some changes will be difficult to unwind, reverting to the pre-coronavirus norm will be staunchly opposed by stakeholders who will fight to protect their turf, industry observers said.
"If care can be safely administered during the most stressful time in the history of healthcare to high-risk patients and a vulnerable population, I think we have scientific evidence that the pre-pandemic barriers to practitioners working at the top of their license are completely unnecessary," said Maryann Alexander, chief officer of nursing regulation at the National Council of State Boards of Nursing.
The evidence will support telehealth expansion and adoption of the Nurse Licensure Compact across all states, she added.
"I think that's going to give those nurses and their lobby groups a bit more ammunition for top-of-license practice nationally," said Sandra DiVarco, a partner at law firm McDermott Will & Emery.
In addition to providing additional health system capacity, care teams can operate more efficiently and at lower cost when mid-level practitioners practice at their top of license. It also allows practices to see patients more frequently because they don't need to wait until a doctor is available.
After the pandemic, the healthcare system should have gained a lot of experience on expanded coverage, telehealth utilization, a greater degree of independent practice by nurse practitioners, physician assistants and other ancillary personnel. Bill Horton, a partner at the law firm Jones Walker, is hopeful that some of the changes will stick.
"We will perhaps have had a chance to see that some of the artificial and sort of old-fashioned restrictions we have imposed on how we deliver care may be loosened up on a permanent basis," he said. "I would love to think some good will come from this in expanding access to care, especially in rural areas."
But when the dust settles, licensed professionals will revert to their territorial instincts and protect their turf. Still, this could be the start of incremental change, Horton said.
"I think it will reduce some arguments, like the one that we can't have an appropriate telehealth encounter when it hasn't been preceded by an in-person doctor's visit. I don't think we will see a radical sweeping change when the emergency waivers go away, but I do think this is one way we can see incremental change," said Horton, adding that there will likely be some transition from the temporary waivers to prior policy as the pandemic subsides.
Many experts think states should collaborate to share information about their licensing requirements and enable practitioners to move across state lines. Those changes would allow the healthcare system to respond faster to the next crisis and adapt to changing healthcare models.
"A great deal of care is provided by agency nurses or by (temporary) doctors and they move around from place to place," said Peter Urbanowicz, former chief of staff to HHS Secretary Alex Azar, now a managing director and co-head for Alvarez & Marsal's healthcare industry group. "States are going to have to accommodate that if they haven't already."
Many physician groups have pushed backed against proposals to broaden advanced practitioners' scope of practice. Physician groups claim that patient safety is jeopardized when advanced practice practitioners practice without physician oversight. Advanced practice practitioners counter that their care is at least as safe or safer and that full autonomy would plug access gaps and corral costs.
The Federal Trade Commission has also supported expanding advanced practice practitioners' autonomy. Commissioners recently supported two state bills that would broaden APPs' scope of practice, claiming they are as "safe and effective as independent providers of many healthcare services within the scope of their training, licensure, certification and current practice."
Advanced practice RNs play a critical role in alleviating physician shortages and expanding access to the underserved, the FTC said. Physician supervision requirements also create an uneven playing field, giving doctors a competitive edge that harms consumers, commissioners said.
There is no evidence to prove that oversight mandates between physicians and advanced practice practitioners improve outcomes or access, said Sophia Thomas, president of the American Association of Nurse Practitioners.
"While these declarations are written for a designated period of time, we have to look forward and make these changes to outdated guidelines more permanent," she said.
"It seems to me we should have a more uniform, national practice standard," Urbanowicz said.
The CMS can point the way forward by modifying Medicare's conditions of participation and reimbursement policies, but it's up to states to make lasting change.
Even aligning licensure requirements could take time, since some states' policies vary greatly. Some states allow anesthesiologist assistants to practice at their top of license while others like New York don't even recognize them as a type of healthcare professional, said David Matyas, a lawyer for Epstein Becker Green.
"There's a very important function for state boards to oversee the quality of care and discipline physicians," Dr. Janis Orlowski, chief healthcare officer for the Association of American Medical Colleges. "On the other hand, I think that it's archaic. We have to really look at how we allow telehealth and qualified healthcare professionals to go across state lines (because) the system is not up to date."
Health systems are increasingly taking a team-based approach to healthcare that use more nurse practitioners, physician assistants, pharmacists and other health professionals. Though healthcare professionals will probably still be at odds when it comes to state licensure because there's a lot at stake.
"Has that translated to private practices or community practices? Not yet.," Orlowski said. "In some cases, they're seen as competition instead of part of the healthcare team."
Practices like One Medical, ChenMed and Oak Street Health "were ahead of the game and they were showing us how to do it, but everyone caught up in the last six weeks," she added.
As providers deploy their caregivers according to the new waivers, they should verify that the blanket waivers are sufficient, said Harsh Parikh, an associate at the law firm Nixon Peabody.
"In many cases I've advised, the blanket waivers are not sufficient and the provider needs to obtain broader authority," said Parikh, adding that many times it involves the Stark law, which aims to prevent physicians from making referrals that yield personal financial benefit.
Providers should also document their care appropriately so they could prove these scope of practice changes were made in response to the pandemic and were within the waiver's authority, he said.
The waivers make it possible for providers to keep as much expertise on the job at any one time as they can, said Lyndean Brick, president and CEO of Advis.
This experience is laying the groundwork for sweeping changes to our healthcare system, she said.
"The easing of telehealth regulation, coupled with increased payments for those services, will be next to impossible to totally undo," Brick said.
