There are two policies that could increase the supply of hospital beds and the supply of healthcare providers in Mississippi. The first policy is certificate of need (CON). The second is telemedicine.

In part 1 of this series, we focused on what the goals of healthcare policy should be during the coronavirus outbreak and reviewed recent federal and state actions aimed at increasing supply and access. In this second part, we recommend five reforms Mississippi policymakers should make to CON laws to immediately increase bed capacity and five reforms they should make to telemed laws to increase access to qualified healthcare professionals.

Certificate of Need

A certificate of need (CON) compels would-be medical providers to demonstrate a community need for a new facility or service. In Mississippi, the Department of Health is the arbiter of this process. The problem with CON laws is that they circumvent the natural interaction between supply and demand, by which providers and consumers determine where new medical services should be offered. In place of the free market, we end up with Soviet-style, bureaucratic planning. This planning tends to be biased toward current providers and is sometimes used to block out-of-state providers from offering their services in Mississippi. The results are well documented: reduced access, lower-quality, and higher mortality rates.

In the context of the coronavirus, certificate of need laws make it more difficult for hospitals to quickly respond to patient needs. States are thus creating pathways for providers to submit emergency CON applications. Mississippi already has an emergency CON application process in place, but the current application could be customized and streamlined so that providers aren’t hindered by red tape during the current pandemic.

As things stand, Mississippi is projected to run out of ICU hospital beds as of May 3. In this respect, we are better off than most states, and for both better and worse, are at the high end of existing hospital beds per capita: 4.0 beds per 1,000 vs. a nationwide average of 2.4. This surplus could serve us well during the current outbreak. But in a nonemergency situation it suggests we are not using healthcare resources efficiently. It is also safe to assume that not every area of the state has equal access to hospital beds. Some hospitals, in an emergency, may need to ramp up supply.

A review of Mississippi’s numerous CON laws raises multiple red flags. These laws need to be suspended, not only to deal with the current coronavirus outbreak, but to create capacity for other emergency services, such as open heart surgery, ambulatory surgical services and diagnostic imaging.  

In particular, Mississippi should suspend the following five CON requirements:

  • Multiple restrictions related to capital expenditures made for the purposes of expanding bed capacity.
  • Restrictions related to relocating and renovating facilities, major medical equipment and, even, medical office buildings (which could be used to provide space for certain patients on a temporary basis).
  • Restrictions on the transfer and relocation of beds.
  • Restrictions on swing bed services, which allow patients to transfer from an acute care setting to a skilled nursing setting.
  • Restrictions related to intermediate care and comprehensive rehabilitation facilities.

This latter requirement is particularly onerous, insofar as the state is currently enforcing a moratorium on the approval of new CONs for the construction or expansion of skilled nursing facilities and intermediate care facilities.

There are likely other policies that hinder hospitals from increasing bed capacity in an emergency. Instead of forcing hospital administrators to operate in a gray area during this and future pandemics, state policymakers should act now to clarify the process by which providers can increase bed supply, especially in critical care situations. 

Telemedicine

Telemedicine has emerged as an important tool for sustaining and supporting healthcare services in the current “shelter-at-home” environment. Telemed allows patients to consult with a doctor over the phone and/or via video. 

In response to the coronavirus, Mississippi’s key licensing boards have taken divergent stands. The Board of Medical Licensure initially (see proclamation dated March 15) encouraged “all physicians to utilize telemedicine so as to avoid unnecessary patient travel, both in-state and out of state.” In order to facilitate this stated goal, the Board waived the requirement for an initial in-person examination and, also, clarified that physicians licensed in another state could treat patients in Mississippi. A few days later, however, the Board walked back from this proclamation, claiming that only out-of-state doctors with a previous patient relationship could practice telemed in Mississippi.  

By contrast, the Board of Nursing is allowing nurses who hold an out-of-state license to practice in Mississippi. The Nursing Board is also allowing recent graduates and retired nurses to practice in appropriate settings.

Mississippi took an early lead in using telemedicine to treat various conditions like diabetes, and the University of Mississippi Medical Center is using telemed in a number of innovative ways. The state is also part of various interstate compacts that make it easier for out-of-state healthcare professionals to see Mississippi patients in a telemed setting. These include the Interstate Medical Licensure Compact, the Nurse Licensure Compact, and the Physical Therapy Compact.

That said, the overall legal and regulatory environment for telemed in Mississippi is mixed. As other states are opening the door wide to telemedicine and many patients are using it for the first time, we are going to see an expansion of telemedicine services across the country both during and after the current health emergency.

Here are five things Mississippi should do to avoid falling behind:

  • Allow doctors licensed in another state, but not Mississippi, to offer telemed to Mississippi patients (§ 73-25-34). This would increase access, especially because so many counties suffer from a primary care physician shortage. 
  • Eliminate the statutory requirement for a prior doctor-patient relationship. 
  • Clarify the current definition of telemed provider so that it includes a wider array of healthcare professionals. This is especially urgent because so many counties have severe shortages of dental and mental health providers.
  • Remove restrictions on store-and-forward services and remote patient monitoring. Mississippi has one of the worst laws in the country in this area, such as requiring that remote patient monitoring be offered only by a Mississippi entity and allowing only FDA Class II hospital-grade medical devices.
  • Eliminate the insurance reimbursement requirement (§ 83-9-351) that excludes audio-only telemed. This would benefit low-income patients, as well as those in situations where video is not accessible.

The coronavirus has demonstrated the U.S. healthcare system is far more fragile than any of us imagined. In spite of spending more per capita than any other country, our healthcare system is suffering from personnel and supply shortages. To meet the current need, some states are cutting red tape to increase supply. Monopolistic practices – embodied by archaic policies like certificate of need requirements and telemedicine restrictions – are not only increasing prices and limiting access during normal times, they are literally crippling our ability to respond to both individual and systemic healthcare emergencies. Mississippi would do well to follow other states in lifting these restrictions during the current outbreak and in repealing them after the crisis passes.