What effects did Gov. Mills’ emergency licensing orders have on Maine’s workforce and public health?
In the initial weeks of what would become a 15-month state of emergency, Governor Janet Mills issued a flurry of executive orders to direct the state government’s response to the ensuing public health crisis. These orders dealt with all sorts of topics related to the pandemic including essential and nonessential activities, gathering limits, workplace safety, schools, elections, and various licensing and regulatory regimes. She had not issued any executive orders since November 2019 before declaring the state of emergency in March 2020.
Maine’s emergency powers law allows the governor, during a declared state of emergency, to suspend or modify state statutes or regulations “if strict compliance with such requirements would in any way prevent, hinder or delay necessary action in dealing with the emergency.”
Among the most notable emergency orders issued by Gov. Mills during the first months of the state of emergency were those dealing with the suspension of occupational licensing regulations. The most notable regulatory suspensions occurred in the healthcare space, regarding the preparedness of the state’s medical workforce.
Executive Order (EO) 16 of Fiscal Year (FY) 19/20, issued on March 20, 2020, was the first of this kind, and only the third order issued by Mills during the pandemic. EO 16 allowed for medical providers (physicians, physician’s assistants (PAs), and nurses) licensed in another state to serve Mainers, either through remote telehealth services or otherwise, as long as that provider had been licensed in good standing with their state for at least 10 years, through an emergency license. Generally, a licensee is in “good standing” if they have not faced any fines or disciplinary action by their regulatory board for a certain amount of time. The temporary suspension of telehealth rules on out-of-state providers meant that Maine patients could seek guidance and care from a larger pool of medical professionals.
The order also waived the requirements for PAs and advanced practice registered nurses (APRNs) to be supervised by a physician in order to practice. It also allowed medical providers who had retired within the last two years to reinstate their license for the duration of the state of emergency, and allowed an extension through July 2021 for those whose licenses would have expired during the pandemic. These orders also waived licensing fees involved in these processes.
On April 6, 2020, Gov. Mills issued EO 35 which similarly loosened various regulations on other medical professions including psychologists, counselors, therapists, pharmacists, dietitians, acupuncturists, interpreters, etc. This order allowed those Mainers licensed under one of these many occupations to utilize telehealth to deliver their services. It also allowed out-of-state licensees to apply for a temporary Maine license valid until 60 days after the state of emergency ends. As Gov. Mills allowed the emergency to lapse on June 30, this would enable these professionals to serve Maine patients until the end of August 2021.
According to the orders, the suspension of medical licensing rules was ordered by Mills because “the escalating COVID-19 public health emergency will produce an extraordinary demand on the State’s healthcare system that will require a degree of flexibility and responsiveness in the staffing of medical facilities that current licensing requirements of physicians, physician assistants, and nurses cannot accommodate.” Mills’ orders also note that “the COVID-19 public health emergency is likely to lead to an increased need for the services of certain health care providers and that temporary regulatory relaxation is “necessary to ensure that Maine patients can obtain necessary health and veterinary care and services during this state of emergency.”
Some of these rules were reinstated earlier this year. Nursing home administrators could renew their expired licenses without satisfying the state’s continuing education requirements until March 20, 2021. Occupational therapists and veterinarians had their licenses extended automatically through March 20 as well. The extensions granted for doctors, nurses, and physicians’ assistants expired at the end of March.
Other rule suspensions were made permanent in law through the work of the Maine Legislature this session. For instance, a bill sponsored by Sen. Heather Sanborn codified some of the telehealth expansions Mills’ initiated in early executive orders, including a provision which prohibited insurance companies from billing different amounts for the same service delivered over telehealth, as long as those medical professionals practicing over telehealth did not overstep the scope of practice allowed under their current license.
These moves by Mills early in the pandemic to accelerate the pace of care for the most vulnerable were crucial. Understanding that the current licensing and certification regime, especially for healthcare professionals, could do more harm than good if they stood in the way of patients and care providers, the governor acted swiftly to correct this imbalance, if only temporarily. If only she had not, at the same time, cancelled so-called “elective” medical procedures like cancer screening and knee replacement surgeries, the effects of Mills’ executive orders on medical practice would be largely positive.
It is worth asking: Were public health and safety risks from interacting with the healthcare system greater during this time of regulatory relaxation? As of mid-June 2020, more than 1,600 100-day emergency licenses were granted by the Maine Board of Medical Licensure, the same agency that licenses doctors, nurses, and physicians assistants. New complaints filed with the board of medical licensure and the board of nursing also did not increase over 2020. Monthly new complaints filed to the board of nursing over 2020 were about equal to that of the previous four year monthly average. For the board of medical licensure, new monthly complaints over 2020 were down more than 25%.
It is difficult to know the full extent of factors affecting the flow of consumer and patient complaints over 2020. Many confounding effects hampered medical offices. “Nonessential” procedures were banned for a time and fear of infection and exposure to the new virus kept many people from entering indoor spaces outside of their home. Presumably, this led to an increase in telehealth visits, but without adequate data, understanding the full scope is difficult.
Government-ordered restrictions on the medical profession during the pandemic led to some surprising effects, including the severe financial hit many medical practices took last year, leading to widespread layoffs of healthcare workers. If fewer people interacted with licensed medical providers, for one reason or another, it could skew even the most careful analysis of public complaint data.
Without the presence of significant shifts in public perception of safety of medical providers, it is likely many of these rule suspensions likely helped thousands of Mainers access needed services without taking the added risk of exposure to SARS-CoV-2, especially through virtual telehealth services. The temporary occupational licensing rollbacks also helped many healthcare professionals gain valuable experience in their field by allowing them to care for and interact with patients before they would have legally been able to otherwise.
Governor Mills suspended these licensing rules in late March and early April of 2020 in order for the healthcare sector to respond quicker and more effectively in a time of “increased need.” Curiously, she doubled back on this rationale about a year later, reinstating many licensing rules for healthcare professionals in order “to protect the public by ensuring that healthcare providers are qualified and properly licensed.”
Now, was it truly dangerous for the public to interact with providers who may not have been fully licensed at the time because of some temporarily relaxed medical licensing rules? The answer is most likely no. But, will reinstating these rules, the suspension of which appears to have not raised significant alarm, better protect the safety of patients? Again, the answer is very likely no.
Can one see it both ways? Loosening rules on medical providers may indeed raise risks for patients, and it may also help patients by providing more responsive care. The question is, what is the goal of a policy, and can that goal change significantly over the course of a year or so?
The state of emergency terminated on June 30, with Mills’ opting to let her latest extension expire. Under Maine law, the governor retains some emergency powers for 30 days after the termination of the emergency. Effectively, the state of emergency terminated at the end of July, not June.
Other rules will be in effect up to September or later. For workers who obtained a temporary or emergency license to practice in Maine during the last 16 months, not only doctors and nurses, but psychologists, social workers, counselors, physical therapists, chiropractors, pharmacists and others, will have to file for an extension of their emergency license by August 30. Otherwise, they will have to take their place in line and soldier through the full certification and licensing process to care for the same people they have seen for over a year. For physicians, this process takes anywhere from 45 to 90 days on average, even though in other states within the Interstate Medical Licensing Compact, of which Maine is a member, the average physician license is issued in 15 to 20 days.
Regarding temporary emergency licenses for psychologists, social workers, counselors, physical therapists, chiropractors, pharmacists and others, those professionals must refile for a renewed emergency license by August 30 as well.
Mills’ emergency licensing reform did not just affect direct medical providers. Other professions like teachers, counselors, and some law enforcement officials had their licensing burdens eased somewhat during the pandemic state of emergency as well. For instance, the governor’s orders allowed for granting emergency teacher certifications for those with credentials from another state or country, anyone enrolled in a teacher prep program, or anyone with a 4-year post-grad degree or equivalent in the eyes of the Maine Department of Education. Background checks and fingerprinting are still required, and any of the positions filled with emergency certified teachers were not allowed to replace currently qualified teachers. Mills has set these emergency certifications to expire on August 30.
Social workers will have active licenses through August 30. For law enforcement officials like polygraph examiners and investigative assistants, Mills’ extended their licenses for considerably longer: until the 180th day following the termination of the state of emergency or for a period equal to the number of days the emergency was in effect, whichever is longer. Since the 15-and-a-half month state of emergency is longer than 180 days, these licenses will not expire until late next year. Alcohol and drug counselors are allowed to complete their required consultation hours remotely until the end of September 2021.
The governor’s order to allow child care providers to watch one additional child before needing a license will lapse August 30 as well. Lawmakers had an opportunity to codify this commonsense proposal and bring Maine into the national average in this area with LD 1252. Unfortunately, the legislative majority decided not to act on it and instead enact a law which raises the regulatory burden on child care providers even more.
Consequently, the suspension and reinstatement of licensing rules for medical professionals should be contrasted with similar orders to loosen rules for other occupations during the same time. The public should know whether any issues relating to public health were raised during this significant period of a relaxed licensing regime as well.
Maine’s occupational licensing issues are directly related to the state’s ageing workforce and stagnant population growth, as well as the current, acute labor shortage made worse by pandemic-inspired economic shutdowns last year. Clearly, the state is still climbing its way out of that economic shock, with many employers noting the difficulty in encouraging workers to reenter the labor force.
A recent report by WGME highlighted the seemingly absurd reality for skilled electricians who move to Maine: their experience and credentials from their previous state are not recognized when they arrive in Maine. This puts firms and workers in a tight spot, for very little gain to consumers. After all, if an electrician business cannot take on new projects, they will not grow to serve more people. Even if the state has a prevailing interest to ensure safety and quality of work, no one is better served by regulating skilled workers out of their field.
Unfortunately, Gov. Mills and her allies in the legislative majority eschewed nearly all proposals to reform Maine’s onerous occupational licensing regime and attempt to heal the current labor shortage. LD 835, sponsored by Rep. John Andrews of Oxford, would have outlined a clear standard for measuring occupational licensing regulations defined by their effects on public health and safety. The bill would have also allowed citizens to challenge those rules and appeal to the District Court for repeal or modification to bring them under the public health and welfare standard. Another bill by Rep. Andrews, LD 612, would have given skilled workers from a different state or country a much easier path to gaining certification and getting to work in Maine. This bill contained several safeguards to ensure new license applicants are in good standing with their state or origin and passed that state’s licensing exam. Both of these bills were struck down in committee.
Yet another bill, directly tied to the issue of attracting and retaining skilled electricians, was sponsored by Sen. Matt Pouliot. LD 126 would have allowed a journeyman electrician, overseen by a master electrician, to supervise three helper electricians for training. Current law only allows for a journeyman to watch over two other helpers. While this would have only been an incremental change, it would have helped, at least somewhat, the predicament that many electricians and their firms face given the current shortage of skilled workers.
Unfortunately, legislators kept afloat a bill by Senate President Troy Jackson which would inflict even more licensing pain for mechanical tradespeople, including HVAC technicians and pipefitters. Maine Policy Institute in its testimony pointed to the numerous job postings for the mechanical trades in Maine, including more than 100 for HVAC technicians at the time. There is simply no need to further squeeze the labor pool when there aren’t enough workers to fill the open jobs right now.
It is a distinct form of irony to watch the committee tasked with “innovation” and “economic advancement” entertain a bill that would add additional layers of regulation on self-employed tradespeople, but exempt those working for hospitals, schools, public utility companies or “governmental entities.” Yet, this is exactly what Sen. Jackson’s bill would do.
A 2017 study published in the Journal of Regulatory Economics simulating the economic impact of occupational licensing found that Maine lost 29,206 jobs and $276 million in economic output due to occupational licensing. They also found that, based on state-level averages, Maine’s occupational regulatory regime was the cause of $2.6 billion of forgone economic growth.
Maine Policy Institute has been vocal on this issue in the past, but especially in the shadow of the COVID-19 pandemic and the economic turmoil caused by the governor’s response, it is of crucial importance that Maine move to significantly reduce barriers to entry for skilled workers through occupational licensing reform. Lawmakers need only to look at the proposals by Rep. Andrews and Sen. Pouliot from the First Session to chart their path.