Occupational Licensing – State COVID-19 Responses

  • The COVID-19 crisis has resulted in shortages of qualified, licensed health care and other related professions that are needed to support state and local responses.
  • States have been enacting measures to modify existing licensing regulations that remove barriers that may prevent an individual to assist in response efforts.
  • Many states have been granting temporary licensure for out-of-state professionals or those that are otherwise retired, still in training, or have lapsed licenses.
  • Certain health care practitioners in some states are being granted expanded scopes of practice.
  • Other states are removing barriers to allow for greater use of telemedicine services.
  • States are also waiving or suspending certain requirements related to the maintenance or attainment of licenses where they might require physical travel, interactions or might otherwise be difficult to achieve during the crisis.

Addressing the Problem

Occupational licensing serves as a way for states to help ensure the protection of public health and safety where there exists the potential for physical, emotional or financial harm. Each state maintains the authority to structure the scope of practice, education and other training requirements necessary for an individual to be granted the right to practice a certain profession. However, given the independent of licensing regulations between states, licensure portability can be particularly difficult to achieve without other supporting policy provisions. Further, achieving and maintain licensure can require significant time and financial investments and thereby decrease the current availability of practitioners.

This issue has been compounded by the recent increased demand in health care related occupations, which are commonly licensed. Increasing the supply of an already spread thin workforce has been one of the primary challenges states are facing. Unlike other disasters which may be more localized, COVID-19 is affecting every state. Even though the severity of cases may vary across the country, states may not be able to safely send health care workers harder hit states in case their own situation may worsen.

How Are States Impacted?

The occupational licensing policy responses by states are centered on how states can meet their health care demands now and relieve regulatory burdens or requirements impacted by COVID-19. Therefore, many of the policy actions involve temporarily waiving, suspending, or modifying licensing requirements or granting temporary licenses during state declarations of emergency.

Action in the States

States have been primarily taking occupational licensing related action through executive orders. Many legislatures have either adjourned or been suspended due to the crisis, however, some had the opportunity to also pass supporting legislation. Other state responses have come from existing provisions and procedures in place such as through the Emergency Management Assistance Compact which provides a process for states to request and allow out-of-state licensed workers.

Below is a sample of state actions related to occupational licensing:

Maryland

  • Executive Order – Allows any person who holds a valid, unexpired license as a health care practitioner that is issued by another state to engage in the activities authorized under that license at a health care facility in Maryland.
  • Executive Order – Allows any inactive practitioner, at a health care facility in Maryland, to engage in activities that would have been authorized under his/her inactive license without first reinstating his/her inactive license
  • Executive Order – Extends expiration date of all licenses, registrations, and other authorizations for 30 days

New York

  • Executive Order – Allows unlicensed non-nursing staff to perform basic nursing tasks including swabs/tests

  • Executive Order – Allows physicians and nurse practitioners to issue non-patient-specific regimens to those authorized by law or exec. order to conduct swabs/tests; allows nurses to order tests.

  • Executive Order – Allows nurses, physicians assistants, physicians, respiratory therapists, and midwives licensed in other states to practice in the state without penalties.

  • Executive Order – Allows physician assistants, specialist assistants, nurse practitioners, professional nurses and practical nurses to exceed their normal practice scope and to operate without a supervising physician

  • Executive Order – Allows nursing/medical students to volunteer at medical centers without any formal arrangement (and to collect educational credit for it); also allows grads of foreign med schools with one year of postgrad training to provide patient care

  • Executive Order – Allowing pharmacists/pharmacy technicians to practice remotely

South Dakota

  • Executive Order – Triggers provisions relating to the Emergency Management Assistance Compact; grants full recognition to emergency licenses of practitioners from compact states.

Utah

  • Executive Order – Declaration of emergency triggers statutory provision allowing licensed out-of-state medical professionals and retired Utah professionals to acquire temporary emergency licenses in Utah; application fees are also waived.

Vermont

  • H.742 –Creates fast tracks for out-of-state licensed healthcare and mental health professionals, retired healthcare and mental health professionals, and new graduates to join or return to the Vermont workforce.

West Virginia

  • Executive Order – Suspends expiration dates of medical licenses; suspends requirements that boards of certification/registration conduct investigations within a certain timeframe.
  • Executive Order – Allows licensed out-of-state nurses and doctors to practice in in the state (including telemedicine) without any further certification; suspends continuing education requirements; allows retired physicians to return to practice without having to re-certify.
  • Executive Order – Eases requirements for issuance of temporary permits for medical students to practice respiratory care; waives medical license renewal fees for respiratory care practitioners

Expected Outcomes

The COVID-19 state actions related to occupational licensing aim to increase the supply of qualified health care practitioners by removing certain barriers created by regulation. States are also taking action to ensure licensure requirements by non-health or other COVID-19 related response occupations are not adversely impacted by stay at home orders, travel restrictions or other interruptions to normal operations relative to the license.

Wisconsin Considering Sunrise Legislation

Legislation recently introduced in Wisconsin could change the way the state studies proposed occupational licensing regulations. Sponsored by Senator Chris Kapenga and Representative Rob Hutton, Senate Bill 541 calls for the establishment of a sunrise review process that would formally require certain information to be collected and analyzed during the legislative process.

Specifically, SB 541 proposes that the sunrise reviews evaluate the following:

  • The risk to public health, safety, and welfare;
  • Public benefit gained from the requirement for the license;
  • The least restrictive regulation available that will effectively protect the public;
  • Licensure requirements for that occupation in other states;
  • Number of individuals or businesses that would be affected by the requirement.

The legislation serves as another example of how states are taking steps to refine their occupational licensing policy processes. While it is well known by states that occupational licensure can serve as an effective means to protect public health and safety and ensure consumer confidence in a profession, there is wide discretion that can be taken during the policy making process. This can include decisions regarding the form of licensure to implement and its related requirements. With these decisions, there are many factors a state can take in to account, including relevant data on instances of harm, existing protections, other states’ licensing practices, and employment numbers and trends.

Sunrise reviews are a type of policy tool designed to address these questions. The reviews are conducted when there is a proposal to either create new or substantially change occupational licensing regulations. While some of the information typically included in a sunrise review could be identified during the legislative process, some states see these reviews as a way to ensure consistency in the information collected and studied. Further, the reviews can be used as a formal way to consider a proposal against a state’s defined criteria for licensing.

Arizona, Colorado, Georgia, Florida, Hawai’i, Maine, Minnesota, Nebraska, Ohio, Vermont, Virginia, Washington and West Virginia are the states currently with active sunrise review provisions. Though these states may prescribe different processes and requirements for the sunset reviews, there are common elements to their design including descriptions of the review’s contents and the timeline and process for completion,.

With SB 541, Wisconsin is considering becoming one of these states. At a recent public hearing hosted by the Wisconsin Senate Committee on Public Benefits, Licensure, and State-Federal Relations, Sen. Kapenga, who also chairs the committee, and Rep. Hutton presented the bill.

“If somebody comes forward from a profession and wants to create a new type of license, we want to make sure we go through a standard process to identify the lowest form of licensure that would still address public safety risks,” said Sen. Kapenga on the bill.

Numerous other organizations were present at the hearing to provide comment – including The Council of State Governments, which profiled the different state sunrise review structures.

With the Wisconsin legislature convening throughout the year, further deliberations on the proposed bill will serve as additional examples of how states are considering processes like sunrise reviews.

Consortium States Present Occupational Licensure Reform Successes at Washington D.C. Briefing

On November 13th, The Council of State Governments, the National Conference of State Legislatures, the National Governor’s Association, and representatives from the states participating in the Occupational Licensing Policy Learning Consortium were on hand to share some of the successes stemming from the multi-year, Department of Labor funded project. The event saw over 60 individuals in attendance, representing a variety of public and nonprofit policy organizations

Utah Representative Norm Thurston discussed some of the state’s accomplishments during the project, including a very active 2019 legislative session. Rep. Thurston specifically highlighted SB 227 (2017), which provides automatic recognition of occupational licenses held by military spouses, and HB 226 (2019), which authorizes the use of competency-based licensing.  

Wisconsin Representative Robert Brooks also presented at the morning briefing to share news on his state’s occupational licensing reform momentum. Included in the highlights were Wisconsin’s recent major reduction in licensing fees that were in part a result from a recent study on the state’s occupational licensing regulations.

Gauri Rege, a researcher from the American Institutes for Research (AIR), introduced the recently completed case studies on the original 11 consortium states, which include Arkansas, Colorado, Connecticut, Delaware, Indiana, Illinois, Kentucky, Maryland, Nevada, Utah, and Wisconsin. AIR authored the studies which examine policy actions from each consortium state through stakeholder interviews and qualitative analyses of the policy process.

With occupational licensure remaining a major focus for states heading into 2020, the policy accomplishments of the consortium states serve as beneficial examples of how both state peer learning and intra-state engagement can help propel continued policy momentum.

Utah Passes Legislation Allowing Competency-Based Occupational Licensing Requirements

Traditional occupational licensing standards typically require that applicants achieve a certain number of hours of training, education and/or experience and pass a cumulative examination before a license is granted by a state. However, the time-based requirements that states implement can vary widely. For example, aspiring barbers can be required to complete between 1,000 and 2,100 hours of training, depending on the state, before they are eligible for a license. This variance in standards demonstrates the discretion states can take in setting regulations that seek to balance public protection with economic opportunity. While licensing is a means to safeguard public health and safety, overly burdensome regulations can exacerbate the economic costs of licensing such as lower economic outputs and fewer jobs.

Seeking to reduce the regulatory burden on workers, the state of Utah established an alternative to time-based licensing requirements by passing House Bill 226, which grants its Division of Occupational and Professional Licensing the ability to implement competency-based requirements.

Rep. Norm Thurston, the sponsor of HB226, explained that competency-based requirements “involve a person learning skills at their own pace where they are subjected to competency-based examinations along the way to prove that they have attained those skills.”

In other words, competency-based requirements allow an individual to demonstrate their achievement of a certain skill as they obtain it. Instead of an individual having to fulfill the minimum number of hours and take a cumulative examination to receive a license, they can demonstrate competency throughout their training and education. With an individual being allowed to progress at their own pace, inefficiencies and redundancies in the licensing process are lessened and thus, the economic costs of licensing standards are reduced.

Thurston said that the legislation will primarily help individuals who may experience difficulties through the traditional system.

“It advantages two types of people,” he said. “First it helps anyone who can learn the skills quicker, maybe because of prior experience, greater aptitude or better instructors. It also benefits those who struggle in the traditional testing model such as people with test anxiety or individuals with disabilities.”  

The bill provides the director of Utah’s Division of Occupational and Professional Licensing the discretion to implement competency-based requirements for licensure where it is determined that it is “at least as effective as a time-based licensing requirement at demonstrating proficiency and protecting the health and safety of the public.”

Thurston said he imagines the model being used in partnership with traditional training programs through community colleges, apprenticeships programs and specialty schools, which may already be implementing this type of model but could benefit from pairing it with licensing standards.

Thurston further envisions that competency-based requirements could be used to create a licensure continuum where individuals are able receive credentials to perform certain services as they continue their education and training.

“For example, a cosmetologist may be able to pass the competency examinations to cut hair but maybe is not ready to use chemicals or color hair,” he said. “This model could allow the cosmetologist to start working and earn income as they are still learning other skills to receive further certifications.”

As states look to improve time to licensure and reduce its economic effects, competency-based requirements serve as an innovative alternative to the traditional licensing process.

States Explore Occupational Licensure Reform

The consortium of states participating in the U.S. Department of Labor’s Occupational Licensing: Assessing State Policy and Practice project recently began their second round of project meetings to discuss occupational license reform. The 11 states–Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah and Wisconsin–are individually meeting to further review their licensure process, engage with policy experts and develop action plans. The state team meetings will culminate this year in the project’s second multistate learning consortium summit to be held Nov. 28-30 in Clearwater, Florida.

The Council of State Governments, along with its project partners the National Conference of State Legislators and the National Governors Association, continues to deliver technical assistance to the states during the project by facilitating meetings, issuing policy reports and collecting state licensing data. The partners recently published four reports that focus on the unique challenges and barriers specific to immigrants with work authorizationpeople with criminal recordslow-income, unemployed & dislocated workers; and veterans and military spouses.

The following is an update on the progress some of the states have made during the second round of meetings.

Kentucky

The Kentucky team’s meeting on Sept. 19 provided the group an opportunity to learn about the differences in state regulatory board structures as well as discuss opportunities for further research including sunrise/sunset review legislation.

“Occupational licensure is a topic that really encompasses a multitude of policy areas including workforce and economic development and veterans’ affairs,” said Brian Houillion, chief of staff and executive director of financial management and administration for the Kentucky Department for Local Government. “The goal is to take a look at what regulatory framework will best serve the needs of the state. For example, during the meeting we explored the different types of state regulatory board structures as part of our ongoing conversation on finding ways to improve our licensure board system.”

Kentucky was also recently awarded an additional $450,000 Department of Labor grant to further help improve the licensure process in the state.

“The grant allowed us to bring on a grant and project administrator to better facilitate the process of licensing reform,” said Houillion. “The additional staff will assist the state’s project team to complete the smaller steps that occur between meetings and stay on objective.”

Utah

During Utah’s Sept. 21 project meeting, the team learned from policy experts about competency-based testing, improving the processes of sunrise/sunset provisions, and licensure burdens specific to immigrants.

Utah state Sen. Todd Weiler, who is a member the state’s Occupational and Professional Licensure Review Committee, said the meeting was a continuation of the team “doing its due diligence by taking deep dives into policy areas and learning from the experts.” He added that one of the team’s primary purposes was to “do the laboring work before the Legislature considers additional reform.”

“Utah is in a transition state as it moves from an older model to a more up to date approach,” he added. “The project team is answering the questions about the health and safety objectives to be achieved through licensure and how to step away from the turf battle of professions and focus on how the customer is best served. The pendulum has swung to decrease regulation wherever it makes sense.”

Utah enacted a number of occupational licensure reform legislation last year that focused on improving licensure mobility, reducing regulation and assisting relocating military families. 

Maryland

Maryland’s Sept. 25 project team meeting centered on ways to expand licensure portability and improve stakeholder messaging. Victoria Wilkins, commissioner of the Division of Occupational and Professional Licensing at the Maryland Department of Labor, Licensing and Regulation commented on the importance of improving the state’s licensure process through the project.

“Anything that decreases regulations to get more people employed while still maintaining public health and safety is something we want to explore,” she said. “The project allows us to hold cross sectional learning meetings with a variety of stakeholders to improve the conversation about licensure.”

The state team is organized in a committee-based structure, which divides the group’s focus areas into the categories: identifying barriers, business needs, community relations, data and research, and addressing the “low hanging fruit” of licensure reform. Wilkins said the “low-hanging fruit” committee could, for example, address some licensure issues outside of the state’s legislative sessions.

“The Legislature only meets once a year, so the committee was established to identify what are some of the simpler changes that could be made in the meantime,” she said. “For instance, the passing score thresholds for plumber licensing exams were recently revised to bring them into uniformity with Maryland’s other licenses.”

The meeting’s guest speaker was Karen Goldman, attorney advisor for the Office of Policy Planning at the Federal Trade Commission, who presented her recently completed FTC policy report on licensure mobility. In the report, Goldman highlighted the important role that CSG’s National Center for Interstate Compacts serves when it comes to how states deal with structuring reciprocity. 

CSG National Conference

The Council of State Governments is providing additional opportunities for states to engage with policy experts and advance the conversation on occupational licensure reform during its annual National Conference, to be held in Greater Cincinnati-Northern Kentucky, Dec. 5-8. The conference will include multiple sessions to foster learning about licensure reciprocity through state compacts, lessons from military members and spouses state licensing policies, and specific case studies of how certain professions have handled reciprocity.

To find out more information about the conference, including how to register, please visit https://www.csg.org/2018nationalconference/Agenda18.aspx