Coronavirus: Maybe We Never Needed All That Red Tape

Right now, of course, much of the attention is correctly focused on barriers to work in the health-care industry. Yet here, where the state’s interest in promoting public health and safety is undoubtedly highest, we are seeing some of the most sweeping reforms in decades. While some states have ordered their occupational licensing boards to speed up the licensure of new health-care practitioners, others—such as Indiana—are granting immediate licensing reciprocity to any practitioner licensed in any state. Even Florida, which has long jealously guarded its occupational licensing regime to prevent semi-retired snowbirds from poaching on the locals’ turf, has gotten in on the act, allowing out-of-state health-care providers to practice telemedicine in the state without a license.

Besides these major changes, states have also begun enacting more modest, but no less welcome, changes to regulations that needlessly stand between doctors and the patients who might benefit from their services. Illinois has waived licensure fees for retired medical practitioners who wish to resume practice. Oklahoma and Massachusetts have eliminated restrictions that required doctors to have a preexisting doctor-patient relationship before they could offer telemedicine services. And Florida—no doubt recognizing the stress we’re all under—has waived the requirement of a physical examination before a doctor may issue a certification for the medical use of marijuana.

But occupational licenses aren’t the only long-established healthcare regulations being reconsidered. Also being reexamined are state certificate-of-need, or CON, laws. A product of 1970s-era economic regulation, CON laws require healthcare providers to prove that new services are “needed” before they may purchase certain large equipment, open new or expanded facilities, or—as is critically needed now—offer home health-care services. Often, these laws give an effective veto power to existing medical providers, allowing them to torpedo new competition for their own benefit.

Here again, the needs of our current situation seem to have exceeded the lobbying power of incumbent health-care providers. Governor Kay Ivey of Alabama has issued an emergency order lifting that state’s CON requirements, allowing health-care providers to add new beds and medical services without first convincing the state they are needed. California, Connecticut,

Georgia, Indiana, Michigan, Nebraska, New York, North Carolina, and Virginia have similarly lifted all or part of their states’ CON requirements.

While these changes are all welcome, how they are enacted is as important as their substance. In times of panic, the natural tendency is for government power to expand, and some states have already enacted laws giving state governors near-dictatorial power to waive or suspend legal requirements. But history teaches all too well that such expansions of power are rarely reversed when the crisis that precipitated them abates. So while our current situation requires rapid action, it is both better and safer to make changes through ordinary legislative and rulemaking processes.