Members of Congress Introduce Legislation to Address Health Professional License Portability During a Public Health Emergency
In the early days of the COVID-19 pandemic, many patients turned to telehealth to continue receiving care from the safety of their homes. At the same time, states that were being hit the hardest by the virus were beginning to experience provider shortages, especially nurses, forcing hospitals and health systems to seek assistance from out of state. The Nurse Licensure Compact (NLC) and other interstate compacts allowed providers in many states to quickly relocate or reach patients using telehealth, however the response was slower in states that had not already joined compacts, a complication that was at least partially due to lack of health provider license portability. As a result, governors across the country used emergency authority to issue executive orders waiving state licensing requirements for health care providers, opening the door for providers to deliver in-person and telehealth services outside of their states of licensure and improving patient access to care under unprecedented circumstances. But these regulatory changes, many stakeholders argue, happened too slowly and were inconsistent from state to state, complicating any telehealth response to patients from out of state. Some healthcare advocates began to argue that the federal government should intervene by preempting state licensing laws and allowing providers to practice across state lines with as long as they have one state license, however, as many discovered for the first time, the federal government does not currently possess the legal authority to do so.
In an effort to address these challenges, members of Congress have introduced pieces of legislation that would temporarily allow providers to practice across state lines when a Public Health Emergency (PHE) has been declared.
Equal Access to Care Act (S.3993)
The Equal Access to Care Act (S.3993), sponsored by Senators Ted Cruz (R-TX) and Marsha Blackburn (R-TN), was introduced on June 17, 2020 and would allow health care providers to deliver telehealth services in any U.S. jurisdiction with only one license. The provider would not need to be licensed in the state where the patient is located to deliver telehealth services. It would move the location of care to the location of the provider, requiring the provider to follow the practice laws and regulations in the state where they are licensed as opposed to the state where the patient is located. By making these changes at the federal level, the bill would legally preempt the Nurse Licensure Compact (NLC) and other compacts as it pertains to location of care during telehealth interactions. If it were to become law, the Equal Access to Care Act would go into effect immediately and expire 180 days after the President declares an end to a federal emergency declaration under National Emergencies Act authority. NCSBN is opposed to the Equal Access to Care Act becoming law.
Temporary Reciprocity to Ensure Access to Treatment (TREAT) Act (S. 4421)
U.S. Senators Chris Murphy (D-CT) and Roy Blunt (R-MO) introduced the Temporary Reciprocity to Ensure Access to Treatment (TREAT) Act (S. 4421) on August 4, 2020. A companion bill (H.R. 8283) was introduced by Reps. Bob Latta (R-OH) and Debbie Dingell (D-MI) in the House of Representatives on September 17, 2020. The bill seeks to provide temporary licensing authority for health care professionals to practice in-person or via telehealth anywhere in the U.S. with a license in good standing in only one jurisdiction during a period where both a Public Health Emergency has been declared by the Secretary of Health and Human Services (HHS) and a national emergency has been declared by the President. The bill would remain in effect for a period of up to 180 days after these emergency periods conclude. When practicing telehealth, health care professionals would be required to follow the practice laws and regulations in their jurisdiction of licensure, not the jurisdiction where the patient is located.
Unlike the Equal Access to Care Act, the TREAT Act addresses concerns related to state-based licensure, discipline, and the Nurse Licensure Compact (NLC) through the addition of three critical provisions in Section 4 of the bill:
Subsection (f) – Investigative and Disciplinary Authority – this provision would allow jurisdictions to investigate and take disciplinary action against a provider by precluding him/her from practicing in their jurisdiction, and then require such as preclusion to be reported to the licensing authority in the provider’s state of licensure.
Subsection (g) – Multiple Jurisdiction Licensure – this provision would require a provider to follow the practice laws and regulations in the jurisdiction where the patient is located if the provider holds a license in that jurisdiction, alleviating legal confusion about which license would apply in these situations.
Subsection (h) – Interstate Licensure Compacts – this provision would exempt providers that hold a multistate license or privilege to practice in multiple jurisdictions through an interstate compact from being subject to this bill.
The inclusion of these provisions seeks to better preserve state-based public protection regulatory models and address the bill’s inherent legal conflicts with the NLC and APRN Compact. In response to the provisions included, NCSBN has decided to remain neutral on this legislation. While NCSBN does not support federal preemption of state licensing under any circumstances, the inclusion of the provisions listed above demonstrate congressional support for interstate compacts and offer states an opportunity to maintain their regulatory authority under emergency circumstances by adopting interstate compacts to facilitate license portability. NCSBN will continue to serve as an educational resource for Congress and the Administration on this bill and other licensure matters.