CLEAR

Legislative and policy trends upcoming in 2022

An article by Venable LLP outlines ten anticipated trends for the 2022 legislative session that could have an impact on occupational licensing boards.

Worker mobility legislation - Given the Biden administration's focus on addressing impediments to worker and economic mobility, the article suggests state regulatory bodies consider the uniformity of licensing requirements across the US.

Antitrust concerns - The article suggests a review of regulatory structures and level of state supervision to address continued antitrust enforcement.

Diversity, Equity and Inclusion  - The article suggests considering whether eligibility rules, education requirements, and other licensing criteria truly serve their purposes or are arbitrary and overly burdensome.

COVID-19 modifications - Licensing boards will need to be prepared for which changes legislatures will roll back or introduce for permanent adoption, particularly around telemedicine.

Read for the rest of the list.

Research: professional regulation and pandemic response - international comparison

A new research paper considers whether "some nations may have been better positioned" to implement needed regulatory policy change during the pandemic "due to their systems of healthcare professional regulation." The article explores three research questions: (1) Did healthcare professional regulators and governments respond differently to the COVID-19 pandemic across the three countries [the UK, Australia, and Canada]? (2) Did national-level professional regulations in the UK and Australia lead to a more effective pandemic response than in Canada, with its system of provincial professional regulation? (3) How did professionals view these pandemic policy responses?

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FSMB tracking legislation to restrict medical board authority

The Federation of State Medical Boards is tracking legislation introduced in fourteen states that would restrict a medical board's authority to discipline doctors for spreading misinformation related to COVID-19. FSMB developed a policy statement that doctors spreading COVID misinformation could face disciplinary action. FSMB maintains that the statement is merely applying COVID-specific language to a rule that has long been in place - doctors who engage in behavior that puts patients at risk can be subject to disciplinary action. 
Legislation in Tennessee was directed at the medical board's COVID policy, making it more difficult to investigate complaints about COVID misinformation.
Pending legislation in Florida would ban the medical board from taking disciplinary action against a doctor for what they say unless "direct physical harm" of a patient occurred.
A survey by FSMB in late 2021 indicated that two-thirds of state medical boards had seen an increase in misinformation complaints.

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UK government to healthcare professionals: "professional responsibility" to get COVID vaccine

The UK's Department of Health and Social Care has written a letter to all unvaccinated NHS healthcare workers informing them of their "professional responsibility" to get the COVID-19 vaccine. Th letter conveys that this professional responsibility is "widely agreed by professional bodies, Colleges, regulators, and others."

The Nursing and Midwifery Council has issued a statement clarifying that they strongly encourage eligible individuals to be vaccinated but that refusal to be vaccinated is not in and of itself a basis for a Fitness to Practice referral.

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Canada: calls for futher action against COVID misinformation

Experts in Canada are calling for more and stricter actions against healthcare professionals who spread COVID misinformation or disinformation. Ontario's Health minister has noted the "extremely concerning" situation and urged the colleges to crack down. A professor in the Department of Politics at Ryerson University has said, "[We need] the government of Ontario to put in place an accountability framework that’s meaningful, substantial and that’s transparent for the various self-regulating professions in this province." A bioethicist at the University of Toronto has indicated that the argument in favor of freedom of speech "is not relevant" in this context: “There’s a difference between freedom of speech as a citizen and freedom of speech as a profession. Physicians have absolutely a highly elevated ethical responsibility to the community, and the very nature of medicine itself is the platform is evidence-based science and research.”

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Year-in-Review: 2021 Regulatory News Trends

CLEAR’s Regulatory News blog strives to bring you news and updates about what’s going on in the professional and occupational regulation arena. What were some of the trends we saw in 2021? The following is not a ranking of importance or an exhaustive list, but here are some of the themes we reported on in 2021:

• Disciplining practitioners for COVID mis/disinformation,
• Mobility,
• DEI and discrimination in regulation,
• Reducing barriers to licensure,
• Licensure issues for veterans and military members, and
• Telepractice.

Read the full year-in-review article

CLEAR will be releasing a podcast episode in February to review trends in professional regulation and hear reactions and further examples from international perspectives.

Survey confirms COVID-19 impact on pharmacy operations

A survey conducted by the American Pharmacists Association shows that high patient demand and staffing shortages are affecting pharmacists' ability to safely administer COVID vaccines. 27% of respondents reported that they had closed or reduced hours due to staffing shortages. 78% of respondents indicated workload exhaustion during the pandemic (up from 22% prior to the pandemic). 40% indicated that they did not have adequate support staff to safely offer COVID vaccinations.

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Challenges of disciplinary action for COVID misinformation

This article by Health Affairs Forefront discusses the challenges licensing boards may encounter when revoking a licenses for professional misconduct on the basis of spreading COVID-19 misinformation or disinformation. Prior Supreme Court decisions in the US has established that boards have considerable discretion to discipline healthcare licensees for speech made in connection with medical procedures (professional conduct), but disciplinary actions based on public statements not connected with a medical procedure would be subject to First Amendment rights of free speech. The article notes that boards would be able to establish that they have a compelling interest in minimizing the dissemination of medical misinformation by licensed physicians. The challenge the article identifies is in convincing that courts that revocation of the license is the least restrictive means to further that interest. The article concludes that boards may be able to successfully argue cases where physicians "disseminate misinformation with knowledge that it is false or with reckless disregard of whether it is true" and "there is a substantial body of evidence that unambiguously refutes the physician's position."

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Update: New Hampshire Executive Order on nursing licensure

Following an executive order to streamline licensure processes for healthcare workers, the New Hampshire Board of Nursing has licensed over 650 nurses from December 1-20, 2021. An emergency rule was enacted for licensed nursing assistants seeking licensure by competency exam to remove the requirement of submitting Program certificates and competency testing results if the LNA Education Program has already provided that information to the Board. Another emergency rule allows for issuance of a restricted license pending receipt of the results of a criminal records check, as long as the applicant meets all other criteria. If the criminal records check satisfies all requirements, the license will be converted to a regular license automatically.

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Vermont considers extension of pandemic health license policies

Act 6 was passed in Vermont in 2020 to allow retired and out-of-state healthcare workers to practice in Vermont without obtaining a Vermont license. The law is set to expire in March. A coalition of hospitals and provider associations is asking for an extension of the law to meet current and continuing healthcare staffing shortages amid COVID-19 surges.

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