Occupational Licensing Requirements in an Emergency

|The Volokh Conspiracy |

Some states are taking actions to relax occupational licensing requirements to address the COVID-19 pandemic. But these are pretty mild changes. A bill in Missouri, for example, would allow for application of a state license by reciprocity. That certainly makes sense for Missouri and may make sense nationally, coronavirus or not, but it does little if anything to increase the supply of health care workers during the emergency. The State of Washington is making it easier for health care professionals to work in the state without an active license. That could increase the supply of workers modestly, if retired professionals want to go back to work. So too could Massachusetts's acceleration of the licensing of medical school graduates. But if worst-case scenarios come to pass, with ICUs many times over capacity and many health care workers ill themselves, such steps could be insufficient. Presumably, some medical specialists will be diverted from other practice areas to care for COVID-19 patients, but their own caseload will not go away, so it's unclear if that will make a sufficient difference.

Much of the discussion of occupational licensing focuses on hairdressers and personal trainers. It makes sense to highlight the professions for which the arguments for rigorous licensing requirements is weakest, but there is nowhere professional licensing has a greater effect than in health care. Some commentators, for example, have called for removing many existing limitations on physician assistants and registered nurses. Whatever the merits of such proposals in the long term, they are separate from the question of what licensing should be required during an emergency if a sufficient number of licensed health care workers are not available.

I would prefer to be treated by someone with just a year of nursing training than to be triaged to my own devices. Indeed, if there were no other alternatives, I would prefer to be taken care of by someone with minimal training, say a couple of weeks of in-class training followed by a couple weeks following around and assisting licensed medical professionals treating COVID-19 patients. Of course, I'm not saying that's adequate, just that it's probably better than nothing. Moreover, if trainees can accomplish some of the simpler tasks, that can free nurses, medical technicians, and doctors to perform some of the more difficult tasks. I imagine that most feel people feel the same way. If so, then it seems likely that should a shortage of health care professionals occur, states will temporarily lessen their licensing requirements. The problem, though, is that if they wait too long, they will not be able to give even the minimal training of the sort that I have described. Conducting minimal training after hospitals are already overwhelmed seems much less desirable than allowing training beforehand.

A sensible legal approach might be for states to pass laws, sooner rather than later, authorizing hospitals to hire anyone that they believe can help them meet their needs temporarily in the event of a labor shortage during the COVID-19 pandemic. If that is seen as likely to lead to abuse, hospitals might be required to propose hiring in an emergency to state administrative agencies, which could then grant or deny exemptions, much as labs wanting to create their own COVID-19 tests can apply for emergency use authorizations from the FDA. Either way, hospitals should be allowed to create their own internal training programs without the need for regulatory authorization. The graduates of such training programs would only be able to work should a state emergency exemption apply, so the state would still have an opportunity to decide that these graduates should not work.

It seems likely that hospitals might be able to find trainees, particularly if they pay them during their training. After all, closing retail establishments means that there is a large unemployed labor force, and states are not equipped even to process their applications for unemployment. Of course, relatively young adults at lower risk from coronavirus will be at lesser risk and thus more likely to apply.

Congress and state legislatures should be hard at work trying to mitigate worst case scenarios. If the relative lack of government actions since COVID-19 first began spreading in China is any sign, they are unlikely to think far in advance. But recent movements to close schools and encourage social distancing suggest some willingness to try to flatten the curve. The challenge now is for legislatures to take actions to reduce deaths if those efforts turn out to be inadequate.

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  1. This article ignores the major disease afflicting the medical profession: lawyers. What are you going to do about malpractice suits? And if there are no iron-clad protections – such that even Hawaiian judges cannot pierce them – this entire fictional edifice collapses.

    1. Exactly. A bad outcome can lead to a suit against the doc who stretched his credentials or experience to do his best under exigent circumstances, and the hospital that gave him privileges without the usual 2-3 month vetting that precedes granting of staff privileges. Under these circumstances, bad outcomes are more likely than baseline. What insurance company would be foolish enough to provide malpractice coverage to the not-quite-fully-trained doc, or the one returning to practice after a year or so of retirement

      1. Conversely, fear of a malpractice suit is often the only thing ensuring patient care, and you’d be amazed/horrified at what licenses get yanked for.

        We already have outright patient abuse, not just neglect and misadventure — the vast majority of patients who could sue (and win) don’t. It’s like how fast would people drive if there were no state troopers….

        1. The funny thing about that example is that there are a few places that don’t have state troopers. In those places, the vast majority of people drive at almost exactly the speed that the engineers designed the road for. The amazing thing is that they do so even when the rated speed is not posted.

          1. Moreover, numerous studies have shown that malpractice suits are simply the result of bad outcomes, not bad treatment.

  2. Any rules, requirements, regulations or laws “relaxed” during this manufactured emergency are demonstrated to be unnecessary.
    How does a certain size of hand sanitizer, previously deadly suddenly become acceptably safe?
    If Suzy is a threat to all humanity without a state license during 2019, what makes her perfectly acceptable in 2020?
    I call shenanigans on all politicians, and 80% of the medical union.

    1. I agree with loosening regulations. However, the argument behind loosening them during emergencies is that during extreme shortages, lack of care is worse than below-regulated-standards care. It’s not that the non-licensed providers become “acceptably safe”. It’s that not allowing them to engage in (relatively less safe) care is unacceptably more dangerous than the temporary alternative.

  3. Certainly the cost of insufficient healthcare workers of certain kind will increase manyfold for a period. So there is opportunity for agile smart adaptations to make a big improvement relative to BAU.

    How many professionals could be freed up and made available for CV work if elective visits & procedures were put on hold? (I realize there are many hurdles between this and the workers actually helping meaningfully w COVID, but the number provides an upper bound for one available mitigation approach)

  4. Why only during an emergency? We hear endlessly that health care is too expensive in the US. Let’s increase the supply of it then.

    It’s life-threatening when someone can’t afford health care, right? We’re supposed to understand that people are going without it and it’s a big problem. If we can adjust standards for a life-threatening pandemic, why can’t we adjust standards for life-threatening unaffordability?

  5. A sensible legal approach might be

    FIFY

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