Polis Loosens Provider Restrictions to Expand Health Care Workforce
Temporary suspension has default expiration time of 30 days

by Julia Cardi

Gov. Jared Polis on April 15 issued an executive order temporarily loosening laws and regulations on health care provider licensing in an effort to expand the workforce available to treat the new coronavirus in the state.

The executive order covers a few broad areas of provider licensing: Allowing not-yet-licensed providers to temporarily practice with supervision, and loosening practice restrictions for some types of specialized health care to allow providers to be trained and supervised by other providers. The order also temporarily suspends practice limitations for retired volunteer nurses.

The order suspends some scope-of-practice limitations for specialty doctors. By doing so, it allows advanced practice nurses, nurse anesthetists, nurses, physicians, physician assistants, and respiratory therapists to train, supervise and delegate responsibilities to medical professionals in a variety of fields not normally directly related to infectious disease specialty. Some practice areas included in the order are chiropractors, optometrists and podiatrists.

According to Polis’ order, it also “suspends certain statutory and regulatory requirements to make more professionals available to the healthcare workforce as soon as possible and ensures that hospital pharmacies are able to meet the needs of expanding inpatient and emergency department bed counts through hospital pharmacy satellites.” That includes suspending a law that bars nurse aid students from practicing for more than four months unless they are certified to allow them to continue working during the crisis. The order also temporarily suspends some State Board of Nursing rules to allow nurse and nurse aide students to complete their studies more quickly and join the workforce.

The order will be in effect for 30 days unless Polis renews it.

Wakaba Tessier, a partner in Husch Blackwell’s Kansas City office, said executive orders such as the one issued by Polis don’t substantively change the obligations of providers to delegate care responsibly and supervise the other providers they hand off work to. She said even in circumstances outside the novel coronavirus pandemic, health care regulators have rules about how providers can delegate care. She said one example of delegation that could happen under the expansion might be a physician handing off care to a nurse anesthetist, whose practice is typically limited to anesthesia.

“It’s not like this delegation and supervision is something new. It’s just that they’re broadening the scope of what you can delegate and to whom,” she said. “Within these executive orders, when you’re expanding what tasks to delegate and to whom, physicians still need to be mindful of what that person is capable of doing and to not over-delegate certain tasks.”

Erica Ash, an associate also in Husch Blackwell’s Kansas City office, said health care providers in a specialized practice area whose scope of practice has been expanded in emergency executive actions like Colorado’s may have roles akin to a resident or advanced practice provider: They may have some autonomy, but will have a lot of support and supervision.

She said the inclusion in Polis’ order of suspending scope-of-practice limitations on veterinarians stood out to her. Its inclusion is distinctive in the U.S., but she said it seems akin to instances in Europe where vets have helped provide COVID-19 care, because some equipment used, such as ventilators, is similar to what ICU’s need.

“I hadn’t seen that in any of the orders in the United States I had looked at thus far,” Ash said. “I think overall it shows they know what’s going on in Europe.”

Colorado is one of about a third of states that have adopted the Uniform Emergency Volunteer Health Practitioner Act. It allows states to recognize out-of-state licenses for a variety of volunteer health care providers during a declared emergency. The state Department of Regulatory Agencies also has the authority to use reciprocal licensing, which allows out-of-state pharmacists, nurses and doctors licensed in other states to get immediately licensed in Colorado.

Craig Konnoth, an associate professor at the University of Colorado Law School and director of the Silicon Flatirons Health Data and Technology Initiative, said he doesn’t believe the loosened licensing laws and regulations under the order create new liability exposure for health care providers. He added the state government is also probably shielded from liability for easing them as long as the action is tied to the emergency circumstances.

“The emergency statute under which Polis is acting requires him to do so pursuant to an emergency declaration after making certain findings,” he said. “But if you read the executive order, he makes the findings, and he does, I think, everything by the book.”

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