It Shouldn’t Take A Crisis Like Wuhan Virus To Deregulate Health Care

It Shouldn’t Take A Crisis Like Wuhan Virus To Deregulate Health Care

Deregulation is real progress against the virus, but it raises the question of why it took an imminent public health threat to effect commonsense changes.
Christopher Jacobs
By

Over the past several weeks, the media has spent a great deal of time focusing on delays in rolling out and scaling up coronavirus testing across the country. But the understandable frustration over testing delays should not discount the other changes occurring within the federal government to help the virus response.

On Tuesday, the federal Centers for Medicare and Medicaid Services announced its approval of two waivers related to the Wuhan virus outbreak. One allowed Medicare providers to treat more conditions via telehealth, so more seniors can avoid exposure to the virus by having medical exams at home rather than traveling to a doctor’s office. The other gave Florida’s Medicaid program additional flexibility — such as the ability to reimburse claims made by doctors who participate in other state Medicaid or Medicare programs, even if they have not gone through the process of enrolling in Florida’s Medicaid program.

These changes represent real progress against the virus. But they also raise the broader question of why it required an imminent threat to public health to effect common-sense regulatory changes — and why some of these changes may last only for the duration of the Wuhan coronavirus outbreak.

The Emergency Declaration Includes

The regulatory flexibility announced on Tuesday came mere days after President Trump signed a proclamation authorizing the changes. In his remarks in the Rose Garden Friday, the president indicated what kind of changes the declaration would give to the Centers for Medicare and Medicaid Services and its parent agency, the Department of Health and Human Services (HHS):

  • “The ability to waive laws to enable telehealth,” which “gives remote doctors’ visits and hospital check-ins;”
  • “The power to waive certain federal license requirements so that doctors from other states can provide services [in] states with the greatest need;”
  • “The ability to waive requirements that critical-access hospitals limit the number of beds to 25 and the length of stay to 96 hours;”
  • “The ability to waive the requirements of a three-day hospital stay prior to admission to a nursing home;”
  • “The authority to waive rules that hinder hospitals’ ability to bring additional physicians on board or obtain needed office space;” and
  • “The authority to waive rules that severely restrict where hospitals can care for patients within the hospital itself, ensuring that the emergency capacity can be quickly established.”

The emergency authorities given to HHS under Section 1135 of the Social Security Act include all these flexibilities and several others — for instance, the power to waive conditions of participation and certification requirements for providers, modify statutory deadlines and timetables, waive out-of-network requirements for Medicare Advantage plans, and waive penalties for certain comparatively minor HIPAA violations, such as not distributing privacy notices.

In his remarks Friday, Trump summarized the effect of these changes: Hospitals and medical providers “can do what they have to do” to treat virus patients. “They know what they have to do. Now they won’t have any problem getting it done.”

Reform Onerous Regulatory Burdens For Good

These changes, while both necessary and welcome, fail to answer the broader question of why some of these regulations existed in the first place. For instance, why does a doctor who lives just north of the Florida-Georgia line have to go through one set of bureaucratic hoops to treat his Georgia Medicaid patients and another set of hoops to treat Medicaid patients who happen to live a few miles south in Florida?

In addition to federal laws and regulations that bog down the practice of medicine, states’ varying and often conflicting requirements create a patchwork of regulations that makes life miserable for doctors, and can prohibit them from practicing in multiple states. Worse yet, scope-of-practice laws often prevent people like nurse practitioners and nurse anesthetists from using their full complement of skills because physician groups seeking to maintain their monopoly status lobby state legislatures to enact harmful regulatory burdens.

The Mercatus Center has conducted volumes of research showing that these types of state-imposed laws — whether measures limiting the scope of practice or requiring a certificate of need from a government board before hospitals can construct new facilities — do not improve quality of care, and often harm it. In sum, these laws work less to protect patients than they do to protect incumbent doctors and hospitals looking to eliminate potential competitors.

Lawmakers at both the state and federal levels should examine these unnecessary regulatory burdens with an intent toward rolling them back permanently. The hospital industry has already asked for at least $1 billion as part of the next “stimulus” bill. At minimum, Congress should insist on regulatory reform in exchange for any additional federal dollars. Regulatory reform would both improve the system for patients and ensure Congress gets the most bang for its proverbial buck when providing taxpayer funds to the health-care sector.

Chris Jacobs is founder and CEO of Juniper Research Group, and author of the book, "The Case Against Single Payer." He is on Twitter: @chrisjacobsHC.
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