COVID-19 providing momentum to telemedicine, expanding scope of practice

The COVID-19 pandemic has created momentum for permanently expanding telemedicine and some medical professions’ scopes of practice, Arkansas state legislators say. Meanwhile, the Arkansas Works program again will be an issue this legislative session, with the pandemic affecting the overall debate.

Certain rules and restrictions have been relaxed during the state of emergency that began last March. As lawmakers gather once again in Little Rock, the question will be whether to make those changes permanent.

Advocates for telemedicine have been among the pandemic’s biggest winners. The state had taken a go-slow approach in the past, but then a highly infectious virus increased the need to provide health care remotely. In March, Gov. Asa Hutchinson issued an executive order allowing doctors and patients to establish a relationship without a face-to-face meeting, and also allowing health care providers to be reimbursed for the service.

Now that patients have grown accustomed to receiving health care without going to the doctor’s office – and providers have grown accustomed to offering these paid-for services – legislators say it’s unlikely the state will revert to the old way of doing things.

Sen. Cecille Bledsoe, R-Rogers, whose husband is a physician and whose son is Arkansas’ surgeon general, had been an advocate of the go-slow approach. She still wants to ensure quality of care doesn’t suffer and says participating physicians must be board-certified and licensed in Arkansas. However, she said her stance has shifted as telemedicine has served many people well during the pandemic, including senior citizens and truck drivers.

“There are just so many ways that telemedicine has been a blessing to people,” she said.

Another major topic to be discussed is expanding medical providers’ scopes of practice, or the types of service they can provide. The issue often results in “turf wars,” as Rep. Jim Dotson, R-Bentonville, described it, and no doubt will again this session. For example, in 2019, a law allowing optometrists to perform minor eye surgeries led to a ballot issue effort by ophthalmologists that failed due to signature collection problems.

This time, however, the discussion will occur in the midst of a pandemic, when the state is seeking ways to expand health care services in harder-to-reach areas. Providers such as nurse practitioners and pharmacists may be able to expand their scopes of practice into areas that traditionally have been reserved for, and fiercely protected by, physicians. As Bledsoe explained, “It seems that especially this session the target is on the backs of physicians in scope of practice.”

Examples of such bills include House Bill 1069 by Rep. Aaron Pilkington, R-Clarksville, which would allow pharmacists to administer birth control pills without a doctor’s prescription.

Rep. Justin Boyd, R-Fort Smith, a pharmacist, has filed House Bill 1134, which would allow pharmacists to administer vaccines to children ages 3-18, including the one for COVID-19. Some states already allow pharmacists to administer vaccines. Under the federal Public Readiness and Emergency Preparedness Act passed in 2005, trained pharmacists temporarily can provide vaccinations during the pandemic. Boyd’s bill would give them that ability to do it permanently in Arkansas. His House Bill 1135 would allow pharmacy technicians to administer vaccines.

Sen. Kim Hammer, R-Benton, said he wants the state to fully assess, perhaps through a consultant, its current scope of practice laws and regulations and compare them to national standards and other states. The process should ensure provider groups have input but not control, he said.

As it has been in the past, funding for the Arkansas Works program will be an issue.

Created in 2013 during Gov. Mike Beebe’s administration, the program now known as Arkansas Works provided health insurance to 300,000 Arkansans on Dec. 1. It ensured 249,000 Arkansans at the beginning of 2020.

The program was created through the Affordable Care Act, otherwise known as Obamacare. The ACA required states to expand their Medicaid populations, but a U.S. Supreme Court decision said states could choose whether or not to participate. Arkansas successfully sought a waiver from the federal government allowing it to purchase private insurance rather than simply expand Medicaid.

Opponents say it’s an unaffordable government intrusion and have tried to use the appropriation process to block the program in past sessions. All state appropriations require a 75% majority in both the House and Senate, so opponents have voted against funding the entire division that administers Arkansas Works. It takes only nine senators or 26 House members to block an appropriation.

Hutchinson has persuaded hesitant lawmakers in the past by instituting a requirement that some beneficiaries engage in work or work-related activities. But that requirement has been struck down by a circuit court decision and now is before the United States Supreme Court.

Complicating the issue is that Arkansas must reapply for a new five-year waiver this year. Regardless of the Supreme Court decision, President Joe Biden’s administration seems unlikely to allow a work requirement. Dotson said it’s not certain it will even grant the waiver.

Legislators said whether or not to continue Arkansas Works will again be a topic of debate this session. As Sen. Jim Hendren, R-Gravette, explained, “When all you have to do is have, what, eight senators, nine senators to shut it down on something that is remotely tied to Obamacare, yeah, we’re not done.”

Hendren said the program ultimately will continue, as it always has in the past.

“I do think when it finally gets down to it, and people are faced with the ramifications to the budget, to the health care of our state in the middle of a pandemic, the likelihood that they actually pull the trigger on blocking the appropriation and shutting down DHS in this environment is pretty thin,” he said.

Instead, the discussion will revolve around what changes should be made – both politically to ensure passage, as well as to meet health care needs. Hendren said language could be included requiring the state to request a work requirement in the waiver. Meanwhile, the Department of Human Services is talking to legislators about changes it is considering to the waiver request. Hutchinson told the Arkansas Democrat-Gazette that his administration is considering changes related to maternal health as well as “helping utilize the critical access to hospitals more in our rural areas to deliver better healthy outcomes and accountability for those that are on the Medicaid program.”

Bledsoe, chair of the Senate Public Health, Welfare and Labor Committee, said she expects legislators will have something to read soon.

Legislators also will discuss issues related to the Department of Health’s authority in various areas, including its authority to mandate a vaccine and its ability to restrict Arkansans’ liberties. Hammer said lawmakers will discuss the requirements that have been placed on businesses to ensure customers comply with Health Department directives.

“I think you’ll see a discussion of why are we putting business owners in a position to be the enforcer of the conduct of the general public,” he said, adding that discussions will be narrowly focused on specific situations.

Another topic of discussion will be liability protections from COVID-related lawsuits. Lawmakers prepared legislation for a possible special session in 2020, but Hutchinson instead expanded them for businesses and health care providers through executive orders. What happens with those protections, and how long they last, will be debated.