As the COVID-19 pandemic continues and our health system is pushed to and beyond capacity, lawmakers and stakeholders are assessing different ways to handle the incredible volume of patients suddenly needing care. One approach being examined, largely at the state level although supported at the federal level, is expanding the scope of practice for different types of individual health care providers.

“Scope of practice” is the universe of services a health professional is considered qualified and competent to provide. Scope of practice is regulated by legislature, agencies, and professional boards. A health professional who provides services outside of his/her scope of practice puts his or her license at risk, among other potential sanctions.

However, in response to COVID-19 in this unprecedented time of health care need, states are taking steps to loosen scope of practice restrictions to get people care. For example:

A. Florida: Pharmacists, Advanced Practice Registered Nurses, Certified Nurse Midwives.  On March 12, 2020, Florida enacted two bills to expand scope of practice for pharmacists, advanced practice registered nurses (“APRNs”), and certified nurse midwives. HB 389 authorizes pharmacists to test and treat minor, nonchronic health conditions, including the flu, strep throat, lice, skin conditions, and minor, uncomplicated infections. The bill also allows physicians to enter into agreements with physicians to treat patients for chronic illnesses, including arthritis, asthma, chronic obstructive pulmonary diseases, Type 2 diabetes, HIV/AIDS, obesity, and any other chronic condition adopted in rules. HB 607 authorizes APRNs to provide primary care services independent of physicians and certified nurse midwives to provide services autonomously.

B. Arizona: Certified Registered Nurse Anesthetists (CRNAs)On March 24, 2020, Arizona Governor Doug Doucey exempted his state from a federal regulation requiring CRNAs to be supervised by a physician. The reform aims to expand access to care, especially in rural areas, and free up more physicians to address COVID-19.

C. Colorado: Physician Assistants, NursesOn March 18, 2020, at the direction of Governor Jared Polis, Colorado’s Department of Regulatory Agencies released emergency licensing measures for healthcare professionals. These measures include suspending the Colorado law requiring health care licensees “who are licensed to practice a limited field of the healing arts” to “confine themselves strictly to the field for which they are licensed and to the scope of their respective licenses,” allowing for expanded scope of practice for health care providers such as physician assistants (“PAs”) and nurses.

D. Maine and Iowa: Physician Assistants.  Other states have focused specifically on physician assistants.  For example, on March 18, 2020, Maine passed LD 1660, immediately allowing experienced PAs to practice without a physician agreement as long as a physician is available for consultation. And on March 19, 2020, Iowa passed Senate File 2357, authorizing PAs to prescribe, dispense, order, administer, or procure prescription drugs, controlled substances, or medical devices as necessary to complete a course of therapy.

As the pandemic continues, we should expect to see more states that have not yet loosened restrictions for mid-level practitioners and nursing staff rush to do so, in addition to other strategies for mitigating the impact of COVID-19 on our overwhelmed health system.

Given the speed with which COVID-19 has prompted a wide-range of legal action at the federal, state and local governmental levels, this blog article is not exhaustive.  Things are changing quickly and there is no clear-cut authority or bright line rules.  This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand.  This post does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic.

For more legal insights visit our Coronavirus (COVID-19) page.

*This alert is provided for information purposes only and does not constitute legal advice and is not intended to form an attorney client relationship.  Please contact your Sheppard Mullin attorney contact for additional information.*