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.

 

Disciplining practitioners for COVID mis/disinformation

A new and still evolving issue that regulators faced in 2021 is how to handle practitioners who publicly disseminate misinformation or disinformation related to the COVID-19 virus, its treatment, vaccinations, and safety guidance. Discipline of practitioners for off-duty conduct is always a tricky area to tackle, but coupled with a global pandemic, it becomes ever more so a challenging balancing act between public health and safety and practitioners’ rights. In the face of practitioners tweeting that lockdowns and masks are unnecessary (see here, here, here, here, and here, for example), organizing and attending anti-vaccination and COVID-denying rallies, and advertising unapproved alternative treatments, several associations and regulatory organizations have released statements and policies on disciplining such behaviors. 


Following are some representative statements. In July, the Federation of State Medical Boards issued a statement that “physicians who generate and spread COVID-19 vaccine misinformation or disinformation are risking disciplinary action by state medical boards, including the suspension or revocation of their medical license.” The American Medical Association has indicated that spreading misinformation is a violation of the code of ethics. The American Chiropractic Association advised its members to “stay within their scope of practice to provide evidence-informed care.” The College of Physicians and Surgeons of British Columbia published a statement that “those who put the public at risk with misinformation may face an investigation by the College, and if warranted, regulatory action.” The Mississippi Board of Medical Licensure and the Washington Medical Commission issued similar statements.


Some common threads run through such statements: (1) Information that promotes anti-vaccine and anti-mask-wearing stances, COVID denial, or unapproved alternative treatments is not scientifically grounded or supported by widely accepted scientific evidence; (2) When health practitioners identify themselves as members of the profession, even when making comments outside of the medical setting or off-duty, the public places trust in the practitioner’s expertise; (3) It is the ethical and professional responsibility of health practitioners to share factual and scientifically grounded information with patients, and spreading of inaccurate information contradicts that responsibility and falls below the standard of care.


International expert on professional regulation, Harry Cayton, acknowledged the challenge of respecting personal opinion while protecting public safety, but he called on regulators to “put the public interest first and foremost and test whether the legislation will allow action against these professionals.” An article from Lexology uses examples from Australia and Europe to highlight the need for careful review of the scope of codes of practice on disinformation and misinformation, with a focus on whether the conduct is intentional spreading of disinformation or perhaps unintentional spreading of misinformation. An article by Health Affairs Forefront reviews prior United States Supreme Court decisions indicating that statements made without a connection to a specific medical procedure are indeed subject to First Amendment rights of free speech, and in disciplining practitioners, boards must meet the burdens of both having a compelling interest in minimizing the dissemination of medical misinformation and using the least restrictive means to do so. CLEAR will continue to monitor this evolving issue.

 

Mobility

Continuing trends related to mobility got further push in 2021 due to the pandemic. As states faced shortages of healthcare workers, many looked to solutions such as universal licensure laws or mutual recognition, reciprocity/endorsement, or compacts to facilitate workers being able to quickly begin practicing across state lines. In March 2021, the National Conference of State Legislatures reported that eleven states had enacted universal licensure legislation. Oklahoma and Mississippi have since followed. In brief, universal licensing laws allow a state to recognize an occupational or professional license in good standing in another state. Substantial equivalence requirements or similar scope of practice requirements have been included in some of the laws.


In July 2021, Australia began the rollout of a new Automatic Mutual Recognition of Occupational Registrations scheme, allowing an individual who is registered or licensed in good standing in one Australian jurisdiction to practice in another jurisdiction without applying for recognition or paying a fee.


Activity around licensure compacts in the US increased in 2021 as well. Several states joined existing compacts, with the Nurse Licensure Compact seeing participation from Ohio, Guam, and the Virgin Islands (and considered in Alaska) and the Interstate Medical Licensure Compact gaining Ohio as a member.  Several other compacts that have been developed are awaiting the participation requirement of ten states in order to go into effect.  Nine states have enacted the Occupational Therapy Licensure Compact (New Hampshire, Colorado, Maine, Missouri, North Carolina, Georgia, Maryland, Ohio, and Virginia).  Legislation is pending in six states. Two states (Maryland and Georgia) have enacted the Licensed Counselor Interstate Compact, with legislation under consideration in Nebraska, Tennessee, Ohio, North Carolina, and Florida.


Under a compact agreement, licensees who hold a license in good standing in one compact member state may practice in other compact member states via a “compact privilege.” Typically, an interstate commission is established to carry out the compact. In March 2021, the US Department of Defense awarded a grant to the Council of State Governments National Center for Interstate Compacts to develop licensure compacts for five professions: cosmetology and barbering, dentistry and dental hygiene, massage therapy, social work, and K-12 teaching.  During May through August, CSG hosted kick-off meetings for each of the compact projects.  Model legislative language is being developed for states to consider.  CLEAR Regulatory News will provide updates on the compacts’ progress.  

 

DEI and discrimination in regulation

Regulators’ journeys on the Diversity, Equity and Inclusion path continued in 2021. News reported on CLEAR’s regulatory news blog focused on a few different areas related to DEI. Several jurisdictions saw changes in laws related to discrimination in delivery of regulated services. The Federation of State Medical Boards launched a task force to “evaluate education and training programs to assist medical and osteopathic boards in identifying opportunities for understanding and addressing systemic racism, implicit bias, and health inequity in medical regulation and patient care.” More states put in place bans on conversion therapy, therapy aimed at changing people’s sexual orientation or gender-identity. Jurisdictions without bans saw an increase in complaints against practitioners using the therapy. Laws banning gender-affirming healthcare for transgender youth were challenged in court and, in some cases, blocked. Some jurisdictions, British Columbia and Michigan for example, developed training requirements and programs for their staff and licensed professionals to address implicit bias and cultural safety in the delivery of care. Across Canada, federally regulated judges must now take social context training to ensure that personal or societal biases do not influence judicial decision-making.


Some jurisdictions took steps to address diversity and inclusion towards their licensees and potential licensees. The Law Society of British Columbia updated their directory to reflect registrants’ gender pronouns and will carry out a directive to use gender-inclusive language during court proceedings. Some jurisdictions and professions looked to increase diversity in their recruitment practices; for example, a pilot programs in Illinois is developing plans and best practices to recruit and retain teachers of color. Another example is the updated Policy on Diversity and Inclusion from the National Council of Architectural Registration Boards, with a commitment to expand diversity at all leadership levels and assess unconscious bias and inequities within NCARB’s programs, policies, and systems.


Regulators are also looking at discrimination in their discipline practices and policies. In the UK, for example, the British Medical Association called for a review of professional regulatory processes in light of reports indicating discrimination against black, Asian, and minority ethnic doctors in the discipline process. The General Medical Council acknowledged the issue as a pressing priority and has set a five-year target for reforming the fitness-to-practice process to eliminate such racial disparities.  


As evidenced by the strong interest in CLEAR presentations, surveys, and conversations around the issue of DEI, regulators are continuing to learn from each other as they navigate their DEI journey.  CLEAR will continue to provide relevant resources to assist the regulatory community.

 

Reducing barriers to licensure

Initiatives to reduce regulatory burden continued to gain momentum over the course of 2021. In some jurisdictions, executive orders mandated review of occupational licensing laws; in Utah, New Mexico, and Ohio, for example, the governors signed executive orders directing reviews of all regulated professions and occupations in order to identify requirements that are no longer necessary and can be eliminated or amended. Such reviews are presented as part of larger economic initiatives to create more streamlined and business-friendly processes. In Mississippi, a Tackle the Tape initiative was launched that allowed citizens to notify the Secretary of State of regulatory statutes or rules they considered harmful for business. Texas, for example, removed licensing requirements for some occupations. Wisconsin and Utah removed requirements for certain hair-styling occupations.


Some specific ways to reduce licensing barriers that governments or regulatory bodies considered or enacted include competency-based assessment, re-evaluation of moral character requirements, and re-evaluation of how prior criminal record affects licensure eligibility. The legislature in Washington considered a competency-based assessment to allow individuals to meet licensing requirements by demonstrating proficiency through training or experience in lieu of a licensing exam. Illinois and Ohio are two examples where states have enacted legislation to reduce licensing barriers for those with a criminal record. Such laws tend to include language prohibiting licensing boards from using a prior criminal conviction as a basis for denying licensure unless the conviction directly relates to the profession for which the license is sought and would prevent the person from safely performing the duties of the profession. Under such laws, licensing boards are directed to make publicly available a list of directly-related offenses that would disqualify an applicant and provide an explanation to applicants whose application is denied. Some boards are also reconsidering the validity of vague or non-specific qualifications such as “moral turpitude” and “moral character.”


These efforts complement a report released by the Council of State Governments early in 2021 that provided recommendations of how to “reduce the negative impacts of employment-related collateral consequences”: listing out specific offences that affect licensure eligibility, removing from the list offenses that do not directly relate to the profession or do not have clear public safety implications, developing specific guidance about how boards should consider convictions, providing a means for potential applicants to determine their eligibility before applying, and providing a written explanation to applicants if denied.


CLEAR will continue to provide information on initiatives and reforms aimed at reducing barriers to licensure.

 

Licensure issues for veterans and military members

Another area that saw continued attention from regulators in 2021 was reducing barriers to licensure and mobility for US military members, veterans, and relocating spouses. A sampling of states that enacted legislation this year includes Maine, Illinois, Pennsylvania, and California. Maine’s “Act to Allow Veterans, Active Duty Service Members and their Spouses to Apply for Temporary Occupational Licenses and Certifications” was enacted in June. A bill in Illinois sets a maximum timeframe of 30 days for state agencies to review licensure applications for military service members and their spouses. California’s new law allows expedited temporary authorization to practice for veterans and military spouses moving to California with an occupational license in good standing in another state; such authorization would be valid up to one year while working to meet California-specific requirements. Pennsylvania’s bill (if approved in the Senate) would expedite review of veterans’ and spouses’ licensure applications and guide boards in translating military experience into civilian licensure requirements.


In September 2021, the United States Department of Defense issued a “Support of Military Families 2021” report, grading states on how well they eliminate barriers to license portability for military spouses. Eight states were graded highly supportive, forty-one states moderately supportive, and two states least supportive.


The US Congress considered a military spouse licensing bill. The Military Spouse Licensing Relief Act of 2021 was passed in the US House as an amendment in the National Defense Authorization Act, allowing that “in any case in which a servicemember has a professional license in good standing in a jurisdiction or the spouse of a servicemember has a professional license in good standing in a jurisdiction and such servicemember or spouse relocates his or her residency because of military orders for military service to a location that is not in such jurisdiction, the professional license or certification of such servicemember or spouse shall be considered valid at a similar scope of practice and in the discipline applied for in the jurisdiction of such new residency for the duration of such military orders,” provided they submit documentation and remain in good standing. This amendment was not part of the National Defense Authorization Act of 2022 that ultimately passed the Senate. The passed version does, however, call for the Secretary of Defense to “conduct a study to identify employment barriers affecting military spouses, including state licensing requirements.”  CLEAR Regulatory News will continue to follow this story as news of the study is released.   

 

Telepractice

Under increased demand for healthcare services and restrictions to in-person visits due to the pandemic, telehealth laws saw continued focus in 2021, with jurisdictions providing clearer definitions and guidelines. Such guidance defines the allowable locations for patients and providers and sets out requirements for insurance company reimbursement for telemedicine services. (See Pennsylvania, New York, and Massachusetts as examples.) Some guidance remains only as temporary emergency waivers during the pandemic. But Arizona approved legislation for a permanent law to allow insurance payment for telemedicine services and allow out-of-state healthcare professionals to provide telemedicine to Arizona patients.


In Indiana, a judge struck down a ban on using telemedicine for abortion care, now allowing abortion providers to offer medication abortion via telemedicine without an initial in-person physical exam. New laws in Texas allow telehealth and telemedicine for all programs administered by the Texas Department of Licensing and Regulation. Alaska considered but did not pass a bill to allow out-of-state providers to offer telehealth services to Alaska patients. Florida considered but did not pass a bill to allow veterinary telemedicine. The US Drug Enforcement Agency is considering rulemaking on telepharmacy regulations and invited input from State Regulatory authorities. CLEAR will continue to monitor as states pass bills for telehealth services and which of the temporary waivers may become permanent.

 

Listen to the CLEAR podcast episode to hear reactions and further examples from international perspectives.


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