CHICAGO — Partly spurred by the COVID-19 pandemic, the VA late last year released an interim final rule clarifying that VA nurses and other healthcare professionals can deliver services in a state other than their state of licensure, registration or certification.
“The COVID-19 pandemic has highlighted VA’s acute need to exercise its statutory authority of allowing VA health care professionals to practice across State lines,” the rule states. “… This rule making will support VA’s authority to do so and will provide an increased level of protection against any adverse State action being proposed or taken against VA health care professionals who practice within the scope of their VA employment.”
In addition, the rule stated in the Nov. 12, 2020, Federal Register that the VA had plans to establish national standards of practice for VA non-MD/DO health care professionals. “The need for national standards of practice have been highlighted by VA’s large scale initiative regarding the new electronic health record,” the rule notes. “… For this endeavor, [the Department of Defense] and VA established a joint governance over the EHR system. In order to be successful, VA must standardize clinical processes with DoD. This means that all healthcare professionals in DoD and VA who practice in a certain health care profession must be able to carry out the same duties and tasks, irrespective of state requirements.”
The actions re-energized a longstanding debate between physicians on one side and other healthcare providers on the other. The American Medical Association (AMA) and 102 other organizations, primarily physician specialty groups, sent a letter in late July to VA Secretary Denis McDonough asking that the agency set aside plans to develop national standards of practice, stating in a press release that those “threaten to undermine confidence in the health care provided to our nation’s veterans by upending state-based licensure and oversight of health care professionals.”
“These back-of-the-envelope standards will have the unintended consequence of reducing the quality of health care for veterans, many of whom suffer from complex symptoms that require expertise from trained medical professionals,” added AMA President Gerald E. Harmon, MD. “These new standards of practice are unlikely to encompass the complexity of modern medicine. They will supersede long-standing state regulations and laws and create confusion. This is a solution in search of a problem.”
The AMA recounted how the process had been Initiated by President Donald Trump’s administration through an interim final rule, arguing, “the standards could lead to patient safety issues and lower quality of veteran care by allowing health care providers to practice above their license and perform procedures for which they are not properly trained.”
The press release pointed out that the proposal would result in a national standard of practice for 48 categories of health professionals. “The VA standards for each category will be independent of one another rather than emphasizing the role of each health care professional in a team-based approach. The VA is developing the standards without transparency and adequate stakeholder input.”
The physician association also maintained that states’ rights issues are involved, stating, “More importantly, these new federal standards will supersede existing state laws. Such a move would prevent state boards from properly supervising the practitioners they license, making it all but impossible to discipline healthcare professionals who deliver inadequate or substandard care.”
It emphasized that healthcare professionals working for the VA would be exempt from state laws that are the result of years of legislative and stakeholder involvement.
“Had we been asked, we would have told the VA to pause and consider the breadth of what it is doing. This is a monumental undertaking, not one to rush through between administrations,” according to Harmon, a former major general in the Air Force. “Physicians want to deliver superior care to veterans. These standards are likely to compromise care. That isn’t what the VA intends, but that’s the probable result.”
Full Practice Authority
Other groups, such as the American Hospital’s Association’s American Organization for Nursing Leadership and other nursing groups have promoted the concept of nurses working to the top of their education and licensure.
Upon publication of the rule, the American Association of Physician Assistants stated in a press release, “This interim final rule serves as a step towards authorizing healthcare professionals working at the VA, including PAs, to be granted full practice authority in order to practice to the full extent of their education and training. PAs provide high-quality care to our nation’s veterans; this interim final rule opens up a pathway to ensure PAs are in the strongest position to continue serving veterans and expand access to care to our nation’s veterans.”
In its response to the proposed rule, the Federal Trade Commission stated, “The COVID-19 public health emergency, for which the VA has needed to rapidly deploy many health care professionals to locations where they may not be licensed, has highlighted the need for the VA to confirm its authority to allow VA health care professionals to practice across state lines pursuant to a national standard of practice. This regulatory preemption, which is consistent with the VA’s longstanding practice and interpretation of VA statutory authority, protects VA health care professionals from potential adverse actions when practicing across state lines within the scope of their VA employment.”
The FTC said it considers the rule to be an “improvement in the VA’s medical regulations, facilitating beneficiaries’ access to VA health care services, increasing the supply of available VA health care services, and potentially reducing health care costs. Thus, the Rule would benefit veterans, especially those at underserved locations and other locations without sufficient staff to meet veterans’ needs, and especially in an emergency.”
The comments went on to add, “The VA’s rule making also sends an important signal to health care providers, state legislatures, employers, patients, and others regarding the need for rapid and effective license portability and national standards for licensure and practice. FTC staff has been actively engaged in advocacy on these issues, and the VA’s policies in support of these principles provide important lessons for health care providers, patients, and policymakers throughout the United States.”