Biosecurity Laws Are Not the Answer To Living With COVID

Despite the high level of vaccination in the U.S., cases of COVID-19 surged at the end of 2021 and the flu has returned this year. Public health officials have expressed concern that as COVID-19 becomes endemic with annual waves of cases, hospitals will be overwhelmed without constant surveillance and public health measures. A recent Vox article details a potential biosecurity state, but this does not have to be our future. 

The original rationale for non-pharmaceutical interventions, e.g. stay-at-home orders, business closures, and mask mandates, was “14 days to slow the spread.” Hopefully, this would reduce transmission enough to prevent hospital capacity from being overwhelmed. It would also allow us time to expand existing capacity.

Hospital capacity is a serious concern in the U.S. Before COVID-19 entered our vocabulary, virulent flu seasons would threaten to overwhelm ICUs and force the postponement of elective surgeries. During the pandemic, high caseloads would threaten hospitals throughout the year.

Because of the combination of the flu and COVID-19 seasons, public health experts argue that we will never have a normal flu season again. Every year, we should expect hospitals to be overrun with respiratory infections. Their solution is to track all respiratory viruses aiming to keep the total healthcare load at the same level as pre-COVID-19.

In order to meet this goal, we will have to live in a world of constant surveillance and non-pharmaceutical interventions. This will require a “fundamental shift in how U.S. hospitals and all of society approach the winter season.” This is no small task.

It is notable what they do not ask for: increasing healthcare resources. In fact, they explicitly state that adding hospital beds would not help, because we don’t have the healthcare professions to treat the additional patients, and accept we cannot and should not do anything about this.

We can and should do something about this.

The U.S. has one of the fewest physicians per capita in the world, and we have been suffering from a physician shortage for decades. A confluence of bad policies created this shortage and allowed it to persist.

First, our explicit policy from the 1980s through 2000 was to reduce the number of graduating physicians. The federal government withdrew scholarship funding for medical school, made operating a medical facility more costly to discourage hospitals from offering them, and halted the direct funding of residencies. Worse yet, we placed a moratorium on new medical schools and reduced medical school enrollments.

In addition, becoming a physician in the U.S. is more difficult than in other developed countries. We require 8 years of education, including a four-year bachelors’ degree (in any subject). Most other nations require a 6-year consolidated program. American medical students average $200,000 in student loan debt—a serious financial burden. As a result, fewer people become physicians, and the majority of those that do enter specialties instead of primary care.

We also have a growing shortage of nurses. Nurses are an important component of healthcare, often serving as the first contact for patients and providing the bulk of the actual care. The supply of nurses is restricted by the lack of resources for nurse education, which includes faculty, sites, space, and budget. These shortages put pressure on practicing nurses, causing professional burnout that further reduces the number of nurses.

Complicating matters even more, we don’t fully utilize the healthcare professionals we do have. For instance, in many states advanced practice professionals, like NPs and PAs, are restricted by scope of practice laws from practicing to the full extent of their training. We require them to master things, then prevent them from using that knowledge to treat patients. Additionally, these professionals are often required to practice under physician supervision. Requiring oversight restricts the locations that they can work, preventing qualified primary care providers from treating patients suffering from a physician shortage.

Another consequence of scope of practice laws is an inability for professionals to advance as they gain experience. In most professions, you can learn on-the-job and are given more responsibility as your skills grow with experience. Scope of practice laws prevent this natural career progression, forcing nurses to return to school to earn a credential that matches the scope of practice laws, instead of being allowed to perform a task as they are able to learn it. During the pandemic, Maryland suspended all scope of practice laws, allowing practice level to be determined by the hospital and their level of need.

While additional healthcare professionals are necessary to expand hospital capacity, laws still needlessly restrict growth, even as the demand for services continues to grow. Certificate of need laws require that any proposed expansion of services—whether it’s a new hospital, an expansion for an existing hospital, or a new service being offered—must be approved by a state board. The applicant must justify the existence of an unmet need, while their current competitors can argue against them. The result in practice is utterly predictable: applications are routinely denied. It should be no surprise that the total number of hospital beds has fallen since the late 1970s, despite a large growth in the total population and elderly population.

So what should we do? The good news is that the solutions are simple, because we largely created these problems.

We have already ended the moratorium on medical schools and discouraging the growth of medical school class sizes. We can redesign our medical education, shifting to a 6 year model like other OECD nations. The federal government can reduce the stringency of the requirements to operate a medical school to encourage more to be opened and fund more positions in residency programs.

The nursing shortage is a unique problem. Recruiting retiring nurses, or those suffering from burnout, to become faculty at nursing schools would allow them to expand the number of nurses they train. Additionally, increasing recruitment for nurses at all levels, from Certified Nursing Assistants to Nurse Practitioners, would expand the supply of nurses. 

To better use the nurses we already have, we have several potential solutions. Expanding scope of practice to be consistent with their level of training would allow advanced practice professionals to offer more means of care and would free physicians to treat patients where their expertise is needed. Likewise, allowing independent practice of PAs and NPs would allow them to offer primary care in areas suffering from an acute physician shortage.

Reforming scope of practice laws to allow experienced nurses to gain experience and training from their work would further offset the shortage. Hospitals could offer training for certain procedures or specialties, allowing nurses to slowly advance as their experience grows. Finally, reforming electronic record laws and required documentation so that note-taking consumes less of their time will allow them to treat more patients.

Finally, removing certificate of need laws would allow any hospital to expand or anyone to start a hospital, without their competitors being allowed a veto. Today, 11 states have completely removed their certificate of need laws, but 40 states still have some version in place.

The pandemic should have underscored the importance of expanding our healthcare capacity. Before 2020, most Americans lived in healthcare shortage areas. We have had a shortage of physicians and nurses, while the number of hospital beds declined. In many ways, this shortage of resources and professionals was the direct result of policy, which should be immediately reversed. We should not give up on a return to a normal world simply because we have decided to restrict the supply of healthcare.

Conor Norris is a research analyst at the Knee Center for the Study of Occupational Regulation at Saint Francis University. He graduated from George Mason University with an MA in economics.