1

Office of Policy Planning

Bureau of Competition

 Bureau of Economics

January 6, 2021

Beth Taylor

Assistant Under Secretary for Health for Patient Care Services/CNO

Department of Veterans Affairs

810 Vermont Ave., NW

Washington, DC 20420

Re: RIN 2900-AQ94-Authority of VA Professionals to Practice Health Care

The staffs of the Federal Trade Commission’s (“FTC”) Office of Policy Planning, Bureau 

of Economics, and Bureau of Competition1 (collectively, “FTC staff”) appreciate the opportunity 

to respond to your request for comments on the Department of Veterans Affairs’ (“VA”) interim 

final rule entitled Authority of VA Professionals to Practice Health Care (“the Rule”). 2 We write 

in support of the Rule, which “confirms VA’s current practice of allowing VA health care 

professionals to deliver health care services in a State other than the health care professional’s 

State of licensure, registration, certification, or other State requirement, thereby enhancing 

beneficiaries’ access to critical VA health care services.” 3 The Rule also “confirms VA’s 

authority to establish national standards of practice for health care professionals which will 

standardize a health care professional’s practice in all VA medical facilities.” 4 National standards 

of practice determine a professional’s scope of practice by specifying the tasks and duties that a 

VA health professional may perform.

The COVID-19 public health emergency, for which the VA has needed to rapidly deploy 

many health care professionals to locations where they may not be licensed, has highlighted the 

need for the VA to confirm its authority to allow VA health care professionals to practice across 

state lines pursuant to a national standard of practice. This regulatory preemption, which is 

consistent with the VA’s longstanding practice and interpretation of VA statutory authority, 

protects VA health care professionals from potential adverse actions when practicing across state 

lines within the scope of their VA employment. 

We agree with the VA that protecting VA professionals working within the scope of their 

employment pursuant to a VA national standard of practice will help enhance beneficiaries’ 

access to critical VA health care services. Accordingly, FTC staff believes that the Rule is an

improvement in the VA’s medical regulations, facilitating beneficiaries’ access to VA health 

care services, increasing the supply of available VA health care services, and potentially

reducing health care costs. Thus, the Rule would benefit veterans, especially those at 

UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

WASHINGTON, D.C. 20580
2

underserved locations and other locations without sufficient staff to meet veterans’ needs, and 

especially in an emergency.

The VA’s rulemaking also sends an important signal to health care providers, state 

legislatures, employers, patients, and others regarding the need for rapid and effective license 

portability and national standards for licensure and practice. FTC staff has been actively engaged 

in advocacy on these issues, and the VA’s policies in support of these principles provide 

important lessons for health care providers, patients, and policymakers throughout the United 

States.

I. Interest and Experience of the Federal Trade Commission

The FTC is charged under the FTC Act with preventing unfair methods of competition 

and unfair or deceptive acts or practices in or affecting commerce.5 Competition is at the core of 

the U.S. economy,6 and vigorous competition among sellers in an open marketplace gives 

consumers the benefits of lower prices, higher quality products and services, and increased 

innovation. Because of the importance of health care competition to the economy and consumer 

welfare, anticompetitive conduct in health care markets has long been a key focus of FTC law 

enforcement,7 research,8 and advocacy.9

For more than 30 years, the Commission and its staff have focused on occupational 

regulations that may unreasonably impede competition. FTC staff have conducted economic and 

policy studies on occupational licensing10 and focused inquiries into laws and regulations 

relating to licensing for various occupations, including health care professions.11 In the 2004 

report Improving Health Care: A Dose of Competition, the FTC recommended that states 

implement uniform licensure standards and adopt compacts to facilitate telemedicine practice 

across state lines. 12 A 2016 FTC staff comment to the Alaska legislature supported allowing 

Alaska physicians located out-of-state to provide telehealth services to patients in Alaska. 13 In 

2017, a staff comment to the VA supported the agency’s proposed rule confirming the authority 

of VA health care providers acting within the scope of their employment to provide telehealth 

services across state lines, notwithstanding contrary state laws or regulations, regardless of the 

location of the VA employee or patient.14

Building on this work, in 2017 the FTC formed the Economic Liberty Task Force 

(“ELTF”), which examined a broad range of licensing issues, including occupational license 

portability.15 This led to the 2018 FTC staff report Options to Enhance Occupational License 

Portability, which examined legal procedures for providing services across state lines.16

Subsequently, a staff comment supported international portability of occupational licenses.17

In addition, FTC staff comments have addressed scope of practice and supervision 

requirements that may unnecessarily limit the range of procedures or services a practitioner may 

provide, or unnecessarily restrict a particular type of practitioner from competing in the market.18

The FTC staff report, Policy Perspectives: Competition and the Regulation of Advanced Practice 

Nurses, provides an in-depth analysis of the legal and policy bases of these comments.19 With 

respect to the VA, a 2016 staff comment supported the agency’s proposed rule preempting state 

nursing licensure laws that conflict with its grant of full practice authority to VA APRNs acting 

within the scope of their VA employment.20
3

II. Current State Law, VA Law and Practice

As a general matter, states require health care practitioners to be licensed in the state 

where the patient is located,21 and to adhere to the state’s laws and regulations regarding 

practitioners’ scope of practice.22 Practicing without a license is prohibited by state statute and 

subject to civil or criminal penalties.23

By statute, VA health care practitioners must be licensed, registered, or certified by one

state to be eligible to practice within the VA system.24 VA has long interpreted its statutory 

authorities to permit it to authorize VA health care professionals working within the scope of 

their employment to deliver services in any state, under the VA’s national standards of practice

regardless of state licensure or standards of practice. 

Thus, although the VA’s statutory authority does not expressly preempt conflicting state 

licensure and scope of practice laws and regulations with respect to in-person practice, the 

agency has concluded that its authority to do so is inherent in its Congressional mandate to 

establish a complete health care service for the medical care and treatment of veterans. Congress 

authorized the VA to establish a comprehensive personnel system, including requirements for 

minimum qualifications of health care professionals, hours and conditions of employment, a 

disciplinary process, and other regulation of their professional activities.25 This national system 

is necessary for the VA to fulfill its primary function of providing medical care for veterans, 

including deploying its employees where needed and requiring them to work under the VA’s 

standards of practice.26

The VA has previously used its inherent authority to preempt state laws and regulations 

to provide comprehensive medical care to veterans, an important Federal interest. In 2016, it 

issued a rule that preempted “conflicting State and local laws relating to the practice of APRNs 

when such APRNs are working within the scope of their VA employment.”27 And in 2018, the 

VA used regulatory preemption to allow health care professionals to practice telehealth in any 

state regardless of state licensure, certification, or other state requirement.28 Shortly after the 

VA’s regulatory preemption, Congress adopted similar legislation giving the VA express 

statutory authority for preemption of state laws and regulations for telehealth purposes.29

III. The Interim Final Rule

To provide additional legal protection for VA health care employees, who have 

sometimes been subject to adverse actions by states, the VA’s Rule expressly preempts 

conflicting state laws and regulations by allowing them to provide services within the scope of 

their duties to VA beneficiaries, regardless of a state’s licensure or scope of practice 

requirements. This legal protection applies regardless of whether VA health professionals 

provide services via telehealth or in-person.30 While the Rule confirms VA’s authority to allow 

its employees to work pursuant to a national standard of practice, it does not set forth a national 

standard of practice. Rather, such standards will be developed for each health profession as 

subregulatory policy.31

Consistent with Executive Order 13132, which sets forth requirements for preemption of 

state law by federal agencies, including when a federal statute does not expressly preempt state 

law, the rule preempts state law only when state law directly conflicts with the exercise of 

federal authority.32 Thus, the Rule preempts state law to the extent that it unduly interferes with 

the ability of VA health employees to practice health care within the scope of their VA 
4

employment.33 Unlike existing statutory and regulatory preemption of state licensure law for 

telehealth purposes, which applies regardless of whether the practitioner or patient are on federal 

property, the Rule is narrower, and does not address the location of practice.

IV. Likely Effects of the VA’s Interim Final Rule

By ensuring that VA health care professionals can provide in-person services on the basis 

of a single state license and under a national standard of practice, the Rule enhances the VA’s 

ability to rapidly provide services wherever needed, thereby further improving access, potentially 

increasing innovation and quality, and reducing costs. The rule is especially important in 

emergency situations, when the VA must provide services rapidly without subjecting employees

to possible adverse actions by states that could jeopardize their credentials and even result in

fines or imprisonment for the unauthorized practice of the profession.34 But clear preemption of 

conflicting state laws and regulations is important under any circumstance, as it will also help the 

VA implement an efficient, nationwide electronic health record system and enhance the VA’s 

ability to recruit and retain health care professionals.

A. License Portability

The COVID-19 public health emergency has created an acute need for the VA to confirm 

its authority to deploy its health care professionals across state lines quickly and freely, and to 

work under the VA’s national standard of practice. 35 Pursuant to its Fourth Mission, to improve 

the Nation’s preparedness for response to war, terrorism, national emergencies, and natural 

disasters, the VA has shifted its resources to locations with critical shortages of health care 

personnel and other resources. As of mid-2020, the agency had deployed personnel to more than 

45 states to support VA medical facilities and state and community nursing homes. It had 

mobilized 1,893 staff to meet its needs and respond to requests from the Federal Emergency 

Management Agency and others.36 The VA’s use of telehealth services, including delivery of 

services across state lines, also increased greatly due to the pandemic. Delivery of telehealth 

services to the home and across state lines was facilitated by the VA’s express statutory and 

regulatory authority preempting conflicting state law. The Rule will similarly protect VA health 

care professionals who travel to states in which they are not licensed to provide in-person care.37

As the Rule explains, “In light of the rapidly changing landscape of the pandemic, it is crucial for 

VA to be able to move its providers quickly across the country to assist when a new hot spot 

emerges without fear of any adverse action from a State be proposed or taken against a VA 

health care professional.” 38

Although the pandemic has amplified the need for the VA to confirm its authority to send 

staff across state lines regardless of licensure, certification, or other state requirement, the ability 

to do so would provide benefits at any time.39 VA health care professionals routinely travel to 

smaller medical facilities or rural locations in nearby states to provide care that is otherwise 

unavailable or difficult to obtain. Moreover, just before the pandemic, 14% of VA health care 

professionals were not licensed, registered, or certified in the state where their main VA medical 

facility is located, making them vulnerable to adverse actions by states. This vulnerability is 

shared by many of the VA health care professionals who provide services at clinics or mobile 

health units, which are often used in rural and underserved areas where they may not be licensed 

or otherwise credentialed.40
5

The rule will also improve VA’s ability to hire health care professionals, helping to 

alleviate shortages and increase veterans’ access to care. Recruitment and retention of licensed 

health care practitioners is likely to improve because the VA will be able to hire professionals

licensed in any state and protect them from adverse actions by states.41 A clear ability to practice 

across state lines could also enhance recruitment of military spouses, who move to another state

frequently and face substantial burdens if they are required to re-license.42 The Rule could thus 

improve the ability of the VA to compete more effectively to hire qualified providers, expand the 

supply of VA health care professionals, and potentially increase the quality of care. 43

B. Nationwide Mobility Necessitates a National Standard of Practice

A nationwide standard or scope of practice is the natural corollary of nationwide mobility 

in which health professionals licensed in one state can practice freely in “secondary”

jurisdictions (i.e., those where they are not currently licensed). As the VA explains, “a national 

standard of practice means that individuals from the same VA health care profession may 

provide the same types of tasks and duties regardless of the VA medical facility where they are 

located or the State license, registration, certification, or other State requirement they hold.”44 On 

a basic level, a national standard is optimal because it is difficult for professionals shifting from 

one state to another to quickly learn and adhere to unfamiliar standards that may allow certain 

tasks in one jurisdiction but prohibit them in another, and which are not necessary to ensure 

patient health and safety. For example, practitioners who have independent practice or 

prescribing authority in one state may find that they need a signature or supervision in another. 

Fulfilling such oversight requirements takes the time of both supervisors and supervisees, and 

can lead to worse outcomes when time is of the essence and a practitioner is qualified to act

independently.45

Different standards of practice can also reduce the effectiveness of electronic health 

record (“EHR”) systems designed to facilitate availability of veterans’ health records. The VA is 

modernizing its system by implementing a joint EHR with the Department of Defense (“DoD”)

to promote interoperability between the two agencies and provide a complete picture of veterans’ 

health information. The system requires the VA and DoD to use the same set of allowed tasks 

and duties for each health profession and cannot accommodate state-by-state differences. The 

DoD has statutory authority to set a national standard of practice, preempting state law. 46 In the 

absence of such explicit authority for the VA, the agency would either have to expose its 

employees to possible adverse actions by states, or both the VA and DoD would have to adopt 

the standard of the most restrictive state to shield VA employees from potential adverse actions. 

Adopting a more restrictive standard would unnecessarily change the way care is delivered 

safely and effectively in less restrictive states, such as by stripping some practitioners of 

independent practice or prescribing authority; preventing nurses from administering medications 

on the basis of a protocol rather than a co-signature; or eliminating direct access to some 

practitioners, such as physical therapists. 47 Such changes could lead to delayed care, decreased 

access, and lower levels of care.48 Accordingly, the Rule confirms the VA’s authority to 

establish national standards of practice for each health care profession, preempting any state 

restrictions that unduly interfere with such standards. 49

In sum, regulatory preemption of conflicting state licensure requirements and standards 

of practice allows the VA to improve beneficiaries’ access to care, respond to critical shortages 

of health care personnel, and avoid delays in care -- potentially improving outcomes and 

reducing costs. In addition, the VA’s leadership in preempting conflicting state licensure 
6

requirements and standards of practice sends an important signal to U.S. health care stakeholders 

regarding the likely benefits of increased license portability and harmonization of state practice 

standards, and the need for strong actions such as preemption to achieve these goals.

V. Portability and Harmonization Outside the VA System

Many health care professions have recognized the need to improve license portability 

and harmonize standards of practice; some have developed interstate compacts or model laws to 

do so. If these initiatives sufficiently satisfied the needs for portability and harmonization, the 

VA might not have needed the Rule to confirm that its health care employees may work in any 

state pursuant to the VA’s national standard of practice. 

A. The Need to Improve License Portability and Harmonize Practice Standards

FTC staff recognizes that state licensing can serve a beneficial role in the health 

professions by protecting the health and safety of the public.50 However, licensing regulations 

erect barriers to entry, limiting the number of workers who can provide certain services. This 

constraint on the labor supply can restrain competition and potentially result in higher prices and 

reduced access to services,51 especially those provided across state lines. Indeed, a recent study 

shows that occupational licensure requirements limit the interstate mobility of licensed workers

in a variety of occupations, especially those with state-specific licensing requirements.52

Moreover, while licensing increases the wages of licensees at the expense of higher prices paid 

by consumers, most studies show that it does not improve quality.53 Thus, licensing requirements 

should be narrowly tailored to address legitimate health and safety issues.

It is particularly hard to justify licensing-related barriers to entry when a qualified 

practitioner licensed by one state seeks to provide services in another state. Because licensing 

rules are almost always state-based,54 it can be difficult for a person licensed by one state to 

become licensed in another. Even when a profession’s underlying examination and education 

standards are national and state licensing requirements are similar -- as is often the case for 

health professions -- the process of obtaining a license in another state is often slow, 

burdensome, and costly.55

The health care professions, as represented by state boards and professional 

organizations, have developed a number of initiatives to improve license portability. Taken as a 

whole, however, these efforts have not sufficiently streamlined cross-state practice, especially for 

emergency needs. This is in part because of the slow, state-by-state process of adoption of the 

initiatives, and also because most only partially eliminate the burdens of obtaining authorization 

to practice in secondary jurisdictions. If these initiatives had sufficiently reduced the barriers to 

cross-state practice, the VA would not have had to issue a rule preempting conflicting state

licensure law and standards of practice. In 2020, the need for state emergency measures to 

temporarily enable cross-state practice during the public health emergency further revealed the 

inadequacy of the pre-pandemic status of licensure portability.

Most of the health care professions that have developed portability initiatives have 

favored interstate compacts that preserve the existing infrastructure and expertise of state 

licensing boards and rely on states to adopt them. Interstate compacts are constitutionally 

authorized, binding contracts between states that provide long-term, enforceable mechanisms to 

address matters involving multiple states.56 There are seven interstate licensure compacts in the 
7

health professions, including nursing, medicine, psychology, physical therapy, emergency 

medical services, audiology/speech language pathology, and advanced practice registered 

nursing.57 Another portability initiative, for pharmacists, is a noncontractual model law, which 

could be easier to revise in response to changing circumstances than a compact.58 But portability 

initiatives are not available for other health professions, such as physician assistants, dentists, 

and occupational therapists, so the existing initiatives do not eliminate the need for additional 

measures to improve cross-state practice, especially during an emergency such as a pandemic. 

Another reason that portability initiatives have not sufficiently streamlined cross-state 

practice is that variations in state scope of practice have inhibited their adoption. Most interstate 

licensure compacts do not address these standards of practice, harmonizing only criteria related 

to licensure.59 However, if states vary significantly with respect to key standards of practice such 

as supervision or prescribing authority, a compact that does not address these matters may 

subject practitioners to unacceptable variations in authority when they practice in different 

states.60 On the other hand, if a compact attempts to change standards of practice, it may 

encounter opposition from the states with standards that would be changed, and from 

organizations that oppose the changes. For example, the APRN Compact, which would require 

independent practice and prescribing authority in all states, was strongly opposed by the 

American Medical Association (“AMA”) and other physicians’ organizations that support 

collaboration or supervision requirements for APRNs. Thus, the APRN Compact has been 

adopted by only three states, less than the minimum number to become effective.61 To encourage 

widespread adoption and reduce barriers to portability, harmonization of standards of practice, 

preferably at the least restrictive level acceptable to ensure patient health and safety, may be 

necessary.

And, despite the efforts of many stakeholders, few portability initiatives have come close 

to achieving the widespread adoption and reduction of restrictions necessary to support both inperson practice across state lines and the growing use of telehealth that accompanied the 

widespread use of smartphones. Only the Electronic Licensure Transfer Program (“e-LTP”) of 

the National Association of Boards of Pharmacy (“NABP”), a longstanding program dating to 

NABP’s founding in 1904, has been adopted by all U.S. jurisdictions. Stakeholders often work 

for years, even decades, to obtain nationwide acceptance and adoption of portability initiatives, 

but none of the interstate licensure compacts have achieved that goal.62 Of the seven interstate 

licensure compacts, only five, for nursing, medicine, psychology, physical therapy, emergency 

medical services, are in operation. Of these, the number of states that have adopted the 

legislation ranges from 15 to 34, and for several compacts, some states are not fully 

participating.63 Eight states, including some of the most populous, have not enacted any of the 

compacts.64

Another issue that has limited the effectiveness of some of the portability initiatives is 

that they do not fully eliminate the burdens of cross-state practice and licensure. Those that use 

expedited licensure, the Interstate Medical Licensure Compact (“IMLC”) and the NABP’s eLTP, retain at least some of the burdens of licensure because they require practitioners licensed 

by one state to be licensed in all other jurisdictions of practice. Although licensure in secondary 

jurisdictions is expedited, multistate practice under an expedited licensure model is a multistep 
8

process involving actions by the principal/initial state of license, central administrative bodies, 

and the state boards of the secondary jurisdictions; the process may have to be repeated when an 

applicant subsequently seeks licensure in another state.65 Applicants must pay fees to each 

central administrative body and all state boards, renew licenses in all states, and meet continuing 

education requirements for all states of licensure.66 In addition, the IMLC sets the standards for 

expedited licensure higher than any individual state, which exacerbates the inherent potential of 

licensure to exclude qualified applicants and reduce competition between professionals, and is 

not necessary to protect patient health and safety. 67 Only the Nurse Licensure Compact, which 

uses a “mutual recognition model” that gives most nurses licensed in a compact state a privilege 

to practice, without notice, in all other compact states, eliminates licensure barriers to cross-state 

practice.68 Other initiatives have procedures posing hurdles to multistate practice in between 

expedited licensure and mutual recognition, for example by requiring applications, notice, or 

fees.69

B. Limitations Highlighted by the Public Health Emergency

The pandemic has laid bare the limitations of the piecemeal approach of relying on 

initiatives that do not fully streamline multistate practice, and do not cover all health care 

professions or all states. The COVID-19 pandemic has made it necessary to respond quickly to

shortages of health care professionals in hotspot jurisdictions or locations, either in person or by 

telehealth, yet licensing issues presented challenges early on that required emergency action. 70

To maximize the availability of health care professionals during the public health emergency, all 

states have taken action to reduce licensure barriers for out-of-state licensees. These have 

generally been executive orders and/or emergency regulations issued by state boards that provide

waivers or procedures for temporary licensing applicable to all or many health care professions. 71

Each state took a different approach; some states’ waivers applied only to COVID-related 

illnesses, some to telehealth, and some to in-person care. Obtaining a temporary license could 

also be challenging.72

In addition to addressing licensure barriers, both federal and state governments have 

acted to reduce supervision requirements during the pandemic. The Centers for Medicare & 

Medicaid Services temporarily reduced certain Medicare supervision requirements. 73 Because 

these changes in the applicability of federal law and regulation do not affect state-required 

supervision or other standards of practice, the U.S. Department of Health & Human Services 

(“HHS”) recommended that states also take action consistent with the federal changes to avoid

delays in the provision of services.74 HHS also recommended that states “allow health care 

professionals like nurse practitioners (NPs), other registered nurses, and physician assistants 

(PAs) to practice to the fullest extent of their license and without restrictive supervision 

requirements.” 75 Most states took action consistent with these recommendations, but the need 

for federal action and encouragement of corresponding state changes highlights the need for both 

federal and state efforts to permanently reduce restrictive scope of practice requirements 

nationwide.76
9

C. The Rule Suggests that Stronger Portability and Harmonization Measures

Are Necessary

While we continue to encourage the development and state adoption of portability 

initiatives, particularly initiatives that maximize ease of interstate practice, the pandemic has 

highlighted the need for stronger measures that achieve nationwide results more quickly. In that 

respect the approach taken in VA’s Rule—preempting conflicting state licensure and scope of 

practice laws and regulations with respect to in-person practice—provides support for the view 

that some forms of federal encouragement or preemption may be necessary and appropriate to 

achieve nationwide license portability and standards of practice, even outside a closed system 

such as the VA. The VA’s earlier authority regarding telehealth and APRN practice, and similar 

statutory preemption for DoD health care professionals, also support the use of preemption. 

VI. Conclusion

By confirming that VA health care professionals may practice health care consistent with 

the scope and requirements of their VA employment, notwithstanding any state license or 

practice requirements, the Rule is likely to enhance the VA’s supply of health care services and 

improve access to services in rural and underserved locations, expand options for beneficiaries, 

reduce delays in care, improve health outcomes, and reduce costs. For these reasons, we support 

the Rule, which should benefit VA beneficiaries—including many of our nation’s most 

vulnerable veterans—and potentially non-VA health care consumers as well.

We appreciate your consideration.
10

Respectfully submitted,

Bilal Sayyed, Director

Office of Policy Planning

Andrew Sweeting, Director

Bureau of Economics

Ian Conner, Director

Bureau of Competition

 1 This letter expresses the views of staff in the Federal Trade Commission’s Office of Policy Planning, Bureau of 

Economics, and Bureau of Competition. The letter does not necessarily represent the views of the Federal Trade 

Commission or of any individual Commissioner. The Commission, however, has authorized us to submit these 

comments.

2 Authority of VA Professionals to Practice Health Care (“VA Professionals”), 85 Fed. Reg. 71,838 (Nov. 12, 2020) 

(to be codified at 38 CFR § 17.419).

3 Id.

4 Id. at 71,839.

5 Federal Trade Commission Act, 15 U.S.C. § 45.

6 Standard Oil Co. v. FTC, 340 U.S. 231, 248 (1951) (“The heart of our national economic policy long has been faith 

in the value of competition.”).

7 See generally MARKUS H.MEIER ET AL.,FTC,OVERVIEW OF FTC ACTIONS IN HEALTH CARE SERVICES AND 

PRODUCTS, https://www.ftc.gov/tips-advice/competition-guidance/industry-guidance/health-care(most recent 

version under “Core Health Care Competition Documents”).

8 See, e.g.,FTC&U.S. DEP’T OF JUSTICE,IMPROVING HEALTH CARE: A DOSE OF COMPETITION (2004),

http://www.ftc.gov/reports/healthcare/040723healthcarerpt.pdf.

9 FTC and staff advocacy can include letters or comments addressing specific policy issues, Commission or staff 

testimony before legislative or regulatory bodies, amicus briefs, and reports. See, e.g.,Comment from FTC Staff to 

the Centers for Medicare & Medicaid Services(“CMS”), Dep’t of Health & Human Services (May 29, 2020), 

https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-letter-centers-medicare-medicaidservices-regarding-interim-final-rule-policyregulatory/v200009_staff_advocacy_letter_cms_telehealth_comment.pdf(supporting provisions in CMS Interim 

Final Rule that reduce or eliminate restrictive Medicare payment requirements for telehealth during the pandemic, 

and suggesting that CMS consider making some of these changes permanent); Comment from FTC Staff to Thomas 

E. Brinkman, Jr., Representative, Ohio House of Representatives (Jan. 9, 2020), 
11

 

https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-ohio-house-representativesconcerning-ohio-house-bill-177/v200005ohiohb177aprnscomment.pdf(discussing the likely procompetitive effects 

of a Bill that would expand the scope of practice of APRNs in Ohio by ending Ohio’s mandatory written 

collaborative agreement requirement); Brief of Amicus Curiae FTC in Support of No Party, In re Nexium 

(Esomeprazole) Antitrust Litig., No. 15-2005 (1st. Cir. Feb. 12, 2016), 

https://www.ftc.gov/system/files/documents/amicus_briefs/re-nexium-esomeprazole-antitrustlitigation/160212nexiumbrief.pdf(explaining that a reverse payment from a brand-name drugmaker that is used to 

settle patent litigation can violate the antitrust laws if it induces a generic drugmaker to abandon its patent challenge 

and stay out of the market); FTCSTAFF,POLICY PERSPECTIVES:COMPETITION AND THE REGULATION OF ADVANCED 

PRACTICE NURSES (“APRNS”)(2014), https://www.ftc.gov/system/files/documents/reports/policy-perspectivescompetition-regulation-advanced-practice-nurses/140307aprnpolicypaper.pdf[hereinafter COMPETITION AND THE 

REGULATION OF APRNS] (presenting an overview of FTC staff comments regarding APRNs, and an in depth 

analysis of the competitive effects of statutes and rules governing APRN scope of practice and supervision).

10 See, e.g., CAROLYN COX &SUSAN FOSTER,BUREAU OF ECON., FED. TRADE COMM’N, THE COSTS AND BENEFITS 

OF OCCUPATIONAL REGULATION (1990), http://www.ramblemuse.com/articles/cox_foster.pdf. See also Christine S. 

Wilson & Pallavi Guniganti, Deregulating Health Care in a Pandemic—and Beyond, 34 Antitrust14, (2020) 

(describing decades of bipartisan health care competition advocacy at the FTC, including comments on occupational 

licensing, scope of practice, and telemedicine).

11 See FTC Staff Comment to the Hon. Laura Ebke, Nebraska State Senator 2 (Jan. 17, 2018), 

https://www.ftc.gov/system/files/documents/advocacy_documents/federal-trade-commission-staff-commentnebraska-state-senate-regarding-nebraska-lb299-

occupational/v180004_ftc_staff_comment_to_nebraska_state_senate_re_lb_299_jan-18.pdf(referring to FTC 

advocacy comments on nurses, eye doctors and vendors of optical goods, lawyers and other providers of legal 

services, dental hygienists, and real estate brokers). 

12 See FTC&U.S. DEP’T OF JUSTICE,supra note 8, at ch. 2. p. 33. See also id. at Executive Summary, 

Recommendation 2(c) (“States should consider implementing uniform licensing standards or reciprocity compacts to 

reduce barriers to telemedicine and competition from out-of-state providers who wish to move in-state.”).

13 See Comment from FTC Staff to Steve Thompson, Representative, Alaska State Legislature (Mar. 25, 2016), 

https://www.ftc.gov/policy/policy-actions/advocacy-filings/2016/03/ftc-staff-comment-alaska-state-legislatureregarding (regarding telehealth provisions in Senate Bill 74, which would allow licensed Alaska physicians located 

out-of-state to provide telehealth services). 

14 See Comment from FTC Staff to the Director, Regulation Pol’y and Mgmt., Dep’t of Veterans Affairs (Nov. 1, 

2017), https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-department-veteransaffairs-regarding-its-proposed-telehealth-rule/v180001vatelehealth.pdf(supporting the VA’s proposed rule that 

would confirm the authority of VA health care providers to provide telehealth services to or from non-federal sites 

regardless of whether the provider is licensed in the state where the patient is located).

15 See, e.g., Occupational Licensing: Regulation and Competition: Hearing Before the Subcomm. on Regulatory 

Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 115thCong. 1, 3, 6-7 (2017) (statement of 

Maureen K. Ohlhausen, Acting Chairman, Federal Trade Commission), 

https://www.ftc.gov/system/files/documents/public_statements/1253073/house_testimony_licensing_and_rbi_act_se

pt_2017_vote.pdf.

16 See FTCSTAFF,POLICY PERSPECTIVES:OPTIONS TO ENHANCE OCCUPATIONAL LICENSE PORTABILITY (2018), 

https://www.ftc.gov/reports/options-enhance-occupational-license-portability [hereinafter OPTIONS TO ENHANCE 

OCCUPATIONAL LICENSE PORTABILITY].
12

 17 See Comment from FTC Staff to the New York State Education Dep’t (April 6, 2018), 

https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-new-yorks-proposal-allowlicensure-endorsement-canadian-dentallicenses/v180007_ftc_staff_comment_to_nys_ed_dept_re_dental_licensure_requirements.pdf(supporting a 

proposed amendment that would allow experienced, licensed Canadian dentists to use the same procedures that 

established, practicing dentists in other U.S. states follow to become licensed in New York State).

18 See, e.g., Comment from FTC Staff to Daniel R. Hawkins, Rep., Kansas House of Representatives (Jan. 9, 2020), 

https://www.ftc.gov/system/files/documents/advocacy_documents/ftc-staff-comment-kansas-house-representativesconcerning-kansas-house-bill-2412/v200006kansashb2412aprnscomment.pdf(commenting on a bill that would 

eliminate a written collaboration agreement requirement for APRNs, and shift regulatory authority over APRNs 

from the nursing board to the medical board).

19 See COMPETITION AND THE REGULATION OF APRNS, supra note 9.

20 Comment from FTC Staff to the Dep’t of Veterans Affairs (July 25, 2016), 

https://www.ftc.gov/system/files/documents/advocacy_documents/comment-staff-ftc-office-policy-planning-bureaucompetition-bureau-economics-departmentveterans/v160013_staff_comment_department_of_veterans_affairs.pdf(supporting proposed rule allowing APRNs 

to provide VA services required by the VA without the oversight of a physician).

21 See, e.g., OPTIONS TO ENHANCE OCCUPATIONAL LICENSE PORTABILITY ,supra note 16, at 4; NAT’L CONFERENCE 

OF STATE LEGISLATURES,THE STATE OF OCCUPATIONAL LICENSING: RESEARCH,STATE POLICIES AND TRENDS 2

(2017), http://www.ncsl.org/research/labor-and-employment/report-the-state-of-occupational-licensing.aspx(“An 

occupational license is a credential that government—most often states—requires a workerto hold in certain 

occupations.”); Eric M. Fish, Shiri A. Hickman, & Humayun J. Chaudhry, 10 SCITECH LAWYER (2014), 

http://www.americanbar.org/content/dam/aba/publications/scitech_lawyer/2014/spring/state_licensure_regulations_

evolve_to_meet_demands_modern_medical_practice.authcheckdam.pdf(“Fifty-seven state medical and osteopathic 

boards and the District of Columbia Board of Medicine now require physicians engaging in telemedicine to be 

licensed in the state in which the patient is located.”);Dent v. West Virginia, 129 U.S. 114 (1889) (upholding the 

right of the state of West Virginia to license physicians).

22 See, e.g., NAT’L CONF. OF STATE LEGISLATURES &ASS’N OF STATE AND TERRITORIAL HEALTH OFFICIALS,SCOPE 

OF PRACTICE POLICY, NURSE PRACTITIONER OVERVIEW, http://scopeofpracticepolicy.org/practitioners/nursepractitioners/ (last visited Nov. 16, 2020) (showing states with full independent practice authority, those for which a 

transition to independent practice period is required, and those requiring a physician relationship); AM.ASS’N OF 

NURSE PRACTITIONERS, 2019NURSE PRACTITIONER STATE PRACTICE ENVIRONMENT (Dec. 20, 2018), 

https://storage.aanp.org/www/documents/state-leg-reg/stateregulatorymap.pdf; E.KATHLEEN ADAMS &SARA 

MARKOWITZ,THE HAMILTON PROJECT,IMPROVING EFFICIENCY IN THE HEALTH-CARE SYSTEM:REMOVING 

ANTICOMPETITIVE BARRIERS FOR ADVANCED PRACTICE REGISTERED NURSES AND PHYSICIAN ASSISTANTS,POLICY 

PROPOSAL 22-24 (June 2018), https://www.hamiltonproject.org/assets/files/AdamsandMarkowitz_20180611.pdf; 

AM.MED.ASS’N,PHYSICIAN ASSISTANT SCOPE OF PRACTICE 2 (2018), https://www.ama-assn.org/sites/amaassn.org/files/corp/media-browser/public/arc-public/state-law-physician-assistant-scope-practice.pdf(46 states and 

D.C. require physician supervision of PAs, two require collaboration agreements, two allow other arrangements). 

23 AM.MEDICAL ASS’N,COUNCIL ON MEDICAL EDUCATION, REPORT 6-A-10, TELEMEDICINE AND MEDICAL 

LICENSURE 1-2 (2010).

24 See 38 U.S.C. § 7402(b) (setting forth qualifications, including licensure, for physicians, dentists, nurses, 

podiatrists, optometrists, pharmacists, psychologists, social workers, marriage and family therapists, mental health 

counselors, chiropractors, and others). See also VA Professionals, 85 Fed. Reg. at 71,839 (discussing VA authority 

under 38 U.S.C. § 7402(b) to hire health care professionals).

25 See VA Professionals, 85 Fed. Reg. at 71,839.

26 See VA Professionals, 85 Fed. Reg. at 71,838-40 (“Put simply, it is crucial for VA to be able to determine the 

location and practice of its VA health care professionals to carry out its mission without any unduly burdensome 

restrictions imposed by State licensure, registration, certification, or other requirements.”).
13

 27 38 C.F.R. § 17.415(e). See also Advanced Practice Registered Nurses, 81 Fed. Reg. 90,206 (Dec. 14, 2016).

28 See 38 C.F.R. § 17.419(c); Authority of Health Care Providers to Practice Telehealth, 83 Fed. Reg. 21,897, 

21,902-03 (May 11, 2018) (final rule, codified at 38 C.F.R. § 17.419) (explaining the agency’s authority for 

preemption, which “allows agencies to preempt State law so long as the exercise of State authority conflicts with the 

exercise of Federal authority under the Federal statute”); Authority of Health Care Providers to Practice Telehealth, 

82 Fed. Reg. 45,756, 45,757, 45,759-60 (Oct. 2, 2017) (proposed rule, to be codified at 38 C.F.R. § 17.419).

29 See 38 U.S.C. § 1730C (“Notwithstanding any provision of law regarding the licensure of health care 

professionals, a [VA] health care professional may practice the health care profession of the health care professional 

at any location in any State, regardless of where the covered health care professional or the patient is located, if the 

covered health care professional is using telemedicine to provide treatment to” a beneficiary under the VA system).

30 See VA Professionals, 85 Fed. Reg. at 71,846 (38 C.F.R. § 17.419(b), (c)). See also VA Professionals, 85 Fed. 

Reg. at 71,839-41 (discussing practice across state lines, national standard of practice, preemption).

31 See VA Professionals, 85 Fed. Reg. at 71,840-41, -46 (national standard of practice; 38 C.F.R. § 17.419(b)(1)).

32 See VA Professionals, 85 Fed. Reg. at 71,841-42 (preemption); Exec. Order No. 13,132 , 64 Fed. Reg. 43,255, 

43,257 (Aug. 10, 1999) (Federalism; Sec. 4, Special Requirements for Preemption).

33 See VA Professionals, 85 Fed. Reg. at 71,838, 71,839, 71,842, 71,844, 71,846 (38 C.F.R. § 17.419(a)(2)(ii), 

(b)(1)).

34 See VA Professionals, 85 Fed. Reg. at 71,841-42.

35 See VA Professionals, 85 Fed. Reg. at 71,839-40, 71,844.

36 See VA Professionals, 85 Fed. Reg. at 71,839-40 (“As of July 2020, VA has deployed personnel to more than 45 

States. . . . As of June 2020, a total of 1,893 staff have been mobilized to meet the needs of our facilities and Fourth 

Mission requests during the pandemic.”).

37 See VA Professionals, 85 Fed. Reg. at 71,840.

38 Id. 

39 See id.

40 See id. (“As of January 14, 2020, out of 182,100 licensed health care professionals who are employed by VA . . . 

14 percent do not hold a State license, registration, or certification in the same State as their main VA medical 

facility.”).

41 See id.

42 See id.; OPTIONS TO ENHANCE OCCUPATIONAL LICENSE PORTABILITY, supra note 16, at 23-24.

43 See VA Professionals, 85 Fed. Reg. at 71,840; Comment from FTC Staff to the Director, Regulation Pol’y and 

Mgmt., Dep’t of Veterans Affairs, supra note 14, at 5.

44 VA Professionals, 85 Fed. Reg. at 71,840.

45 See VA Professionals, 85 Fed. Reg. at 71,841 (unnecessary supervision or co-signature requirements can delay 

care, leading to deterioration of a patient’s condition); Comment from FTC Staff to the Centers for Medicare & 

Medicaid Services, Dep’t of Health & Human Services, supra note 9, at 8-9 (unnecessary supervision requirements 

result in inefficient duplication of efforts by supervisors and supervisees and delays in the provision of services).

46 See VA Professionals, 85 Fed. Reg. at 71,841 (“DoD has specific authority from Congress to create national 

standards of practice for their health care professionals under 10 U.S.C. § 1094.”).

47 See id. (discussing delays, increased workload, and lower levels of care from co-signature requirements and loss 

of direct access to certain practitioners).
14

 48 See VA Professionals, 85 Fed. Reg. at 71,841 (VA health care professionals could avoid adverse state actions if 

DoD and the VA adopted the standard of the most restrictive state, but adopting the standard of “the most restrictive 

State is not an acceptable option because it will lead to delayed care and consequently decreased access and level of 

health care for VA beneficiaries.”). 

49 See VA Professionals, 85 Fed. Reg. at 71,840-41, -46 (national standard of practice; 38 C.F.R. § 17.419(b)(1)).

50 Such considerations may be especially important in the health professions, where the risk of harm from an 

unqualified provider may be considerable and consumers may have difficulty determining whether a provider is 

qualified. See, e.g., COMPETITION AND THE REGULATION OF ADVANCED PRACTICE NURSES,supra note 9, at 12-13

(describing information asymmetries between professionals and consumers and other reasons supporting the 

importance of licensure in health care). 

51 See, e.g., Maury Gittleman et al., Analyzing the Labor Market Outcomes of Occupational Licensing, 57 INDUS.

RELATIONS 57 (2018) (those with a license earn higher pay andare more likely to be employed); Morris M. Kleiner 

& Evgeny Vorotnikov, Analyzing occupational licensing among the states, 52 J.REG. ECON. 132, 134, 155 (2017)

(the restriction in the supply of labor created by occupational licensing has long been known to increase the price of 

services paid by consumers, which are transferred to licensed workers in the form of higher wages); Morris M. 

Kleiner et al., Relaxing Occupational Licensing Requirements: Analyzing Wages and Prices for a Medical Service, 

59 J.L. ECON 261 (2016) (explaining that “occupational licensing may function as a barrier to entry that drives up 

wages in the licensed profession and increases the price of products and services that are produced by licensed 

workers”).Cf. Beth Redbird, The New Closed Shop? The Economic and Structural Effects of Occupational 

Licensure, 82 AM.SOCIOL. REV. 600 (2017) (contrary to the consensus that licensure creates wage premiums by 

establishing economic monopolies, “licensure does not limit competition, nor does it increase wages.”). 

52 See Janna E. Johnson & Morris M. Kleiner, Is Occupational Licensing a Barrier to Interstate Migration, 12 AM.

ECON. J. 347 (2020) (comparison of licensed occupations that require a national examination with those based on 

state-specific examinations shows that “licensing reduces interstate migration, but the magnitude of the effect can 

only account for a small part of the overall decline in recent decades.”).

53 See, e.g., INDRE BAMBALAITE ET AL.,OCCUPATIONAL ENTRY REGULATIONS AND THEIR EFFECTS ON 

PRODUCTIVITY IN SERVICES:FIRM-LEVEL EVIDENCE 12, ¶ 18, OECD ECONOMICS DEP’T WORKING PAPERS NO. 1605 

(2020) (concluding from a review of the literature that “most of the research in this area failed to demonstrate 

quality improvements resulting from stricter regulatory entry barriers, or a reduction in the quality of goods and 

services following an easing of such barriers.”); MORRIS M.KLEINER,THE HAMILTON PROJECT,REFORMING 

OCCUPATIONAL LICENSING POLICIES 5, 12-13, 15 (2015), 

http://www.hamiltonproject.org/assets/legacy/files/downloads_and_links/reforming_occupational_licensing_morris

_kleiner_final.pdf(a review of studies finds that occupational licensing has little effect on the quality of products or 

services, but it may function “as if the government were granting a monopoly in the market for the service, with the 

long-term impacts being lower-quality services, too few providers, and higher prices”); Sean Nicholson & Carol 

Propper, Medical Workforce, in HANDBOOK OF HEALTH ECONOMICS, Vol. 2, ch. 14, 885 (2012) (empirical studies of 

the effects of licensing in medical labor markets “conclude that licensing is associated with restricted labor supply, 

an increased wage of the licensed occupation, rents, increased output prices, and no measurable effect on output 

quality.”).Studies of the effects of licensure on quality often consider the effects of higher and lower standards of 

licensure, rather than the effects of newly enacted licensing laws that set standards for a health care occupation for 

the first time. However, one study found that requiring midwives to be licensed reduced maternal mortality and led 

to a modest reduction in infant mortality. See D. Mark Anderson et al., The Effect of Occupational Licensing on 

Consumer Welfare: Early Midwifery Laws and Maternal Mortality, 128 J. POLIT.ECON. 4,337 (2020).

54 See supra note 21and accompanying text.

55 See, e.g.,AM.MEDICAL ASS’N,MEDICAL LICENSURE (“The process of obtaining a medical license can be 

challenging and time consuming. . . . . Physicians seeking initial licensure or applying for a medical license in 

another state should anticipate delays due to the investigation of credentials and past practice as well as the need to 

comply with licensing standards.”), https://www.ama-assn.org/residents-students/transition-practice/obtainingmedical-license (last visited Nov. 21, 2020); HEALTH RESOURCES &SERVICES ADMIN.,U.S. DEP’T OF HEALTH &

HUMAN SERVICES (“DHHS”),SPECIAL REPORT TO THE SENATE APPROP.COMM.,TELEHEALTH LICENSURE REPORT 9

(2010) (Requested by Senate Rep’t 111-66)(“The basic standards for medical and nursing licensure have become 
15

 

largely uniform in all states. Physicians and nurses must graduate from nationally approved educational programs 

and pass a national medical and nursing licensure examination.”). 

56 See MICHAEL L. BUENGER ET AL.,THE EVOLVING LAW AND USE OF INTERSTATE COMPACTS xxi, 1, § 2.1.2 (2d ed. 

2016) (Interstate compacts are formal, binding contracts between two or more states that are neither purely state nor 

purely federal in nature. States acting in their sovereign capacity enter into these contracts by enacting proposed 

compact legislation.); “No state shall, without the Consent of Congress . . . enter into any Agreement or Compact 

with another State, or with a foreign Power[.]” U.S. Constitution, art. I, § 10, cl. 3. None of the existing occupational 

licensure compacts have required the consent of Congress.

57 See OPTIONS TO ENHANCE OCCUPATIONAL LICENSE PORTABILITY,supra note 16, at 9-11 (discussing 6 health care 

compacts); AUDIOLOGY AND SPEECH-LANGUAGE PATHOLOGY INTERSTATE COMPACT (ASLP-IC), 

https://www.asha.org/Advocacy/state/Audiology-and-Speech-Language-Pathology-Interstate-Compact/ (last visited 

Nov. 20, 2020).

58 See infra note 62and accompanying text; OPTIONS TO ENHANCE OCCUPATIONAL LICENSE PORTABILITY,supra 

note 16, at 14-15 (modifying noncontractual model laws that do not have to be adopted verbatim may be easier than 

modifying interstate compacts for which each state’s legislation must be identical).

59 See supra notes 57-58and accompanying text; OPTIONS TO ENHANCE OCCUPATIONAL LICENSE PORTABILITY,

supra note 16, at n.34 and accompanying text (“compacts generally do not alter the scope of practice provisions of 

state practice acts”); id. at 20-21 (discussing harmonization of licensure requirements). 

60 See supra notes 47-49and accompanying text.

61 See, e.g., Molly Kathleen Bachtel, et al., The push to modernize nursing regulations during the pandemic, 68 

NURSING OUTLOOK 545 (2020) (only Idaho, North Dakota, and Wyoming have adopted the APRN Compact, which 

requires adoption by 10 states to become effective; unnecessary restrictions on APRNs’ scope of practice have 

impeded their mobilization during the pandemic and otherwise); Letter from the AMA and other national and state 

medical organizations to Katherine Thomas, President, National Council of State Boards of Nursing, May 10, 2018, 

https://www.aafp.org/dam/AAFP/documents/advocacy/workforce/scope/LT-NCSBN-APRNCompact-051018.pdf

(“[T]he APRN Compact is the only compact that changes the health professional’s scope of practice. . . . We 

strongly object to the use of interstate licensure compacts as a mechanism through which to expand scope of practice 

laws . . . [and] . . . grant prescriptive authority and allow APRNs to practice independent of a supervisory or 

collaborative relationship with a physician, notwithstanding state law to the contrary”). See also AMA, Allied 

Health Professions, Independent Practice of Medicine by Advanced Practice Registered Nurses H-35.988 (2018) 

(opposing independent practice by APRNs and the APRN Compact “due to the potential of the APRN Compact to 

supersede state laws that require APRNs to practice under physician supervision, collaboration, or oversight.”).

62 See OPTIONS TO ENHANCE OCCUPATIONAL LICENSE PORTABILITY,supra note 16, at 13 nn.67-70 and 

accompanying text; Sandra Evans, The Nurse Licensure Compact: A Historical Perspective, 6 J.NURS.REG. 11 

(2015).

63 See INTERSTATE COMMISSION OF NURSE LICENSURE COMPACT ADMINISTRATORS,NLCMEMBER STATES,

https://www.ncsbn.org/nlcmemberstates.pdf(last visited Nov. 21, 2020) (operational in 2000; currently 34 member 

states; but partial implementation in New Jersey); Interstate Medical Licensure Compact (“IMLC”), 

https://www.imlcc.org/a-faster-pathway-to-physician-licensure/ (adopted by 29 states, DC, and Guam, including 43 

medical and osteopathic licensing boards, but implementation delayed in DC, PA, and LA, and GA, OK, and VT 

issuing expedited licenses but not determining whether state licensees qualify for them); . The IMLC became began 

expediting licenses in 2017. See OPTIONS TO ENHANCE OCCUPATIONAL LICENSE PORTABILITY,supra note 16, at 10. 

See also Psychology Interjurisdictional Compact (“PSYPACT”), Map, https://psypact.org/page/psypactmap (last 

visited Nov. 21, 2020) (15 states have adopted PSYPACT legislation, but the law will not go into effect in Virginia 

and North Carolina until 2021); PSYPACT, FAQS, https://psypact.org/page/faq(last visited Nov. 21, 2020) 

(PSYPACT began accepting applications on July 1, 2020); Physical Therapy Compact, PT Compact Frequently 

Asked Questions (FAQ) 6 (June 12, 2019), (last visited Nov. 21, 2020) 

http://ptcompact.org/Portals/0/images/PTCFrequentlyAskedQuestionsV_20190612.pdf(“First member states began 

issuing compact privileges on July 9, 2018”); PT Compact, PT Compact Map, http://ptcompact.org/ptc-states (last 

visited Nov. 21, 2020) (28 states have enacted PT Compact legislation, but eight are not yet issuing or accepting 

compact privileges); See Interstate Commission for EMS Personnel Practice, Interstate EMS Personnel Licensing 
16

 

Compact Declared Operational to Help Communities Respond to COVID-19 (March 13, 2020), 

https://s3.amazonaws.com/nremt.content/static/documents/13+MAR+2020+EMS+Compact+Declared+Operational.

pdf; Interstate Commission for EMS Personnel Practice, EMS Compact Member States & Commissioners, 

https://www.emscompact.gov/the-commission/member-states/ (last visited Nov. 21, 2020) (21 states have enacted 

the Recognition of EMS Personnel Licensure Interstate Compact (“REPLICA”), but Louisiana’s legislation does not 

become effective until 2021).

64 Alaska, California, Connecticut, Hawaii, Massachusetts, New York, Ohio, and Rhode Island. See supra note 63

(compact maps or lists of states). Rhode Island was a member of the Nurse Licensure Compact, but left the compact 

as of July 18, 2018. See INTERSTATE COMMISSION OF NURSE LICENSURE COMPACT ADMINISTRATORS,NLC

MEMBER STATES, supra note 63. See also Bachtel et al, supra note 61(regarding the APRN Compact); ASLP-IC, 

Compact Map, https://aslpcompact.com/compact-map/(last visited Nov. 22, 2020) (ASLP-IC has not been enacted 

in AK, CA, CT, HI, MA, NY, or OH). 

65 See Interstate Medical Licensure Compact, A Faster Pathway to Physician Licensure, https://www.imlcc.org/afaster-pathway-to-physician-licensure/(last visited Nov. 22, 2020); Interstate Medical Licensure Compact, 

Frequently Asked Questions, https://www.imlcc.org/faqs/ (last visited Nov. 22, 2020) (FAQs for Physicians); 

NABP, Licensure Transfer, https://nabp.pharmacy/programs/licensure/#eligibility (last visited Nov. 22, 2020). 

Applicants for licensure transfer under the e-LTP also must pass the Multistate Pharmacy Jurisprudence 

Examination for each state of transfer. See NAPLEX/MPJE 2020 Candidate Application Bulletin 2 (2020), 

https://nabp.pharmacy/wp-content/uploads/2019/03/NAPLEX-MPJE-Bulletin_July_2020-1.pdf. See also Anita 

Slomski, Telehealth Success Spurs a Call for Greater Post-COVID-19 License Portability, 324 JAMA 1021-22 

(2020) (“Although the compact expedites multi-state licensure, ‘it functions more like a clearinghouse instead of 

extending true license reciprocity’ across states”).

66 See Interstate Medical Licensure Compact, Frequently Asked Questions, supra note 65; NABP, Licensure 

Transfer, supra note 65. Many states have a post-licensure requirement for pharmacists licensed via the licensure 

transfer process: they must maintain their license by original examination, and pay fees and fulfill continuing 

education requirements for that state indefinitely, even if they do not plan to practice there again. See NABP, State 

Restrictions for Licensure Transfer (Oct. 5, 2020), https://nabp.pharmacy/wp-content/uploads/2020/10/LicensureTransfer-State-Restrictions-October-2020.pdf; Mel Seabright, Advice for Recent Pharmacy School Graduates, 

PHARMACY TIMES, July 22, 2015, https://www.pharmacytimes.com/contributor/mel-seabright-pharmdmba/2015/07/advice-for-recent-pharmacy-school-graduates.

67 See Interstate Medical Licensure Compact § 2(k) (definition of physician), https://www.imlcc.org/wpcontent/uploads/2020/02/IMLC-Compact-Law.pdf; Robert Steinbrook, Interstate Medical Licensure: Major Reform 

of Licensing to Encourage Medical Practice in Multiple States, 312 JAMA 695 (2014) (“Only some physicians, 

such as those with specialty certification or a time-unlimited specialty certification and a full and unrestricted 

medical license for at least 3 years, would be eligible” [to apply for expedited licensure under the IMLC]). 

68 OPTIONS TO ENHANCE OCCUPATIONAL LICENSE PORTABILITY,supra note 16, at 17-18, 20.

69 See, e.g., PSYPACT, Practice Under PSYPACT, 

https://cdn.ymaws.com/psypact.org/resource/resmgr/practice/july_2020_practice_under_psy.pdf(last visited Aug. 

17, 2020) (the procedure avoids applications to individual states and their continuing education requirements, but 

requires applications, annual renewals, and fees to both the Association of State and Provincial Psychology Boards 

and the PSYPACT Commission). The PTCompact requires physical therapists to purchase a “Compact Privilege” 

from the PT Compact Commission for each state of practice and statesmay require a jurisprudence examination. 

Applicants must pay fees to the PT Compact Commission and 20 states; renewal of the privilege may require 

another jurisprudence examination and fees. See PT Compact, Fee and Jurisprudence Table, 

http://ptcompact.org/Compact-Privilege-Fee-Jurisprudence-and-Waiver-Table (last accessed Aug. 13, 2020); PT 

Compact Frequently Asked Questions (FAQs) 2-5 (June 12, 2019), 

http://ptcompact.org/portals/0/images/PTCFrequentlyAskedQuestionsV_20190612.pdf. 

70See, e.g., Bachtel et al, supra note 61(“the lack of a multistate licensure for advanced practice registered nurses, 

combined with unnecessary restrictions on APRNs’ scope of practice, has impeded mobilization of the nursing 

workforce”); Slomski, supra note 65at 1022 (the IMLC does not sufficiently streamline licensure to address the 

increase in telehealth during the pandemic).
17

 71 See, e.g., Federation of State Medical Boards (“FSMB”), U.S. States and Territories Modifying Licensure 

Requirements for Physicians in Response to COVID-19 (June 22, 2020) (50 states, D.C., and four territories had 

waivers; none did not have waivers with respect to out-of-state physicians in-person practice and license renewals). 

The number of states with waivers subsequently decreased; the current document may list fewer states as having 

issued waivers. See id., https://www.fsmb.org/siteassets/advocacy/pdf/state-emergency-declarations-licensuresrequirementscovid-19.pdf(last visited Nov. 22, 2020). See also FSMB, U.S. States and Territories Modifying 

Licensure Requirements for Telehealth in Response to COVID-19 (June 22, 2020) ( 49 states and three territories 

issued waivers and one state, D.C., and one territory did not with respect to out-of-state physicians, preexisting 

provider-patient relationships, audio-only requirements). Current document available at 

https://www.fsmb.org/siteassets/advocacy/pdf/states-waiving-licensure-requirements-for-telehealth-in-response-tocovid-19.pdf. 

72 See, e.g., Slomski, supra note 65at 1021. The FSMB compilation of state actions also has many sources that 

illustrate the variations in state approaches, with many requiring applications and other documentation to obtain 

temporary licensure. See supra note 71.

73 See Interim Final Rule with Comment Period, Medicare and Medicaid Programs; Policy and Regulatory Revisions 

in Response to the COVID-19 Public Health Emergency, 85 Fed. Reg. 19,230, 19,246 (April 6, 2020) (temporarily 

relaxing a requirement for direct supervision requirement of nonphysician practitioners when physicians bill 

Medicare “incident to” their services by allowing supervision using audio/video telecommunications technology).

74 Letter from Alexander M. Azar II, Secretary of Health and Human Services, to Governors 2 (Mar. 24, 2020), 

https://www.ncsbn.org/HHS_Secretary_Letter_to_States_Licensing_Waivers.pdf. (recommending that states 

“[t]emporarily suspend . . . any requirements for written agreements to meet supervision or collaboration 

requirements, in order to avoid significant delays in the provision of services” and that states “temporarily waive any 

requirements that the supervising physician be physically co-located with or within a certain geographic distance to 

the NP or PA who he or she is supervising.”)

75 Guidance to States 2 (Mar. 24, 2020), attachment to Letter from Alexander M. Azar II, supra note 74, 

https://www.ncsbn.org/HHS_Guidence_to_States_on_Regulations_on_Healthcare_Workers.pdf.

76 See Bachtel et al, supra note 61at 546 (within a month, “all but seven . . . of the 28 states that limit NP practice 

have partially or fully waived APRN practice agreement requirements with physicians” and “22 states have achieved 

Full Practice Authority” status for NPs). See also Comment from FTC Staff to CMS, supra note 9, at 7-9.