State Health Workforce Toolkit

Licensing and Regulation

Inventory of DCW Stakeholders Common DCW Roles and Associated Workforce Data Direct Care Workforce Development DCW Wage Assessment
State Health Workforce Stakeholder Inventory State Sources of Health Workforce Data National Sources of State Health Workforce Data A Framework for Health Workforce Assessments State Health Workforce Policy Coordination Strategies
State Governing Models for Occupational Regulation Levels of Occupational Regulation State Policy Options to Support License Portability Compacts 101 States and Telehealth Scope of Practice
Federal and State Workforce Development Strategies States and Career Pathways State Strategies to Enhance Health Workforce Diversity State Strategies to Enhance Health Workforce Retention

Introduction

Many healthcare professionals are required to hold a license to engage in the practice of their profession. States hold the authority to determine regulatory requirements for each profession type, including level of regulation (license, certification, etc.) and what is required to obtain that credential. Regulatory requirements may include background checks, education, examination, experience, and licensing fees. Each of these regulatory variables have an effect  on the supply, quality, and services provided by health professionals; as such, it is a delicate balance to ensure regulatory policy meets its intended outcome (generally, to ensure an adequate number of healthcare professionals to meet state needs). Various considerations are important for Governors and state officials when considering state regulatory policy, including frameworks to better understand the regulatory environment, and various resources related to common state regulatory policy levers (such as licensure compacts, telehealth, and scope of practice).

State Governing Models for Occupational Regulation

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State executive branches are responsible for occupational regulation of healthcare workers. However, there is significant variation in the organization of the executive branch regulatory functions by state. State legislatures provide authority and structure for a state’s health workforce regulatory activities. Most states have licensing boards which serve a role in regulating a profession. However, the authority and responsibilities of licensing boards vary by state. The diagram below demonstrates the breadth of variation in state approaches, outlining which functions are the responsibility of a licensing board and which fall to a more-centralized executive branch regulatory agency.

State Executive Branch Models for Regulatory Functions

Fully autonomous/ independent structure for profession-specific boards

Boards hire their own staff and make administrative, disciplinary, and licensure decisions related to the profession.

Centralized agency to support licensing boards’ in certain functions (typically through shared administrative infrastructure)

Boards generally have decision-making authority related to licensure, but the executive branch agency (sometimes referred to as an umbrella agency) may be responsible for some decisions, such as budgets, personnel, or investigations.

Centralized agency with full decision making authority

An executive branch agency (or director, commission, or council) has full authority over administrative, disciplinary, and licensure decisions. Profession-specific boards generally still exist but serve only in an advisory capacity.

(adopted from the models presented in the CLEAR report)

Of note, the healthcare workforce is broad and includes many professions/occupations. It may be the instance that some professions fall under one regulatory governing model, and another profession falls under a different governing model. Additionally, the governing approaches presented in the diagram above are intended to be illustrative concepts, and may not represent all types of governing models for occupational regulation.

Governors’ Role

Governors should understand their state’s occupational regulation governing model for healthcare professions. The Council on Licensure, Enforcement and Regulation (CLEAR) serves as an excellent resource for states and jurisdictions related to occupational regulation, including providing state level information about how state’s regulatory structures are modeled.

Resource

Professional and Occupational Regulation: U.S. State Regulatory Structure. Council on Licensure, Enforcement, and Regulation. 2020.

Levels of Occupational Regulation

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Occupational regulation refers to a regulatory intervention applied to an occupation that balances individual economic opportunity with ensuring public health and safety. The regulation of an occupation can occur through government or nongovernmental interventions at varying levels. The regulatory options for an occupation are broad and vary from non-regulation (market competition) to licensure (the most restrictive form of regulation that protects occupational title and scope of practice).

In 1889, the U.S. Supreme Court ruled that it was a within a state’s right to regulate healthcare professionals to ensure the welfare of the people and protect them from impaired or incompetent professionals. Since that time, states have grappled with finding appropriate levels of regulation for occupations that protect “the public’s health and safety by increasing the quality of professional’s services through mandatory entry requirements, such as education.” While occupational regulation occurs in many sectors, healthcare occupations experience a greater prevalence of certification or licensure as compared to other sectors as such state regulation commonly serves to ensure individuals have met certain education or training standards before being permitted to provide health-related services to the public.

Note: the Department of Labor defines the categories of “certification” vs. “licensure” as: “Certifications are issued by a non-governmental certification body and convey that an individual has the knowledge or skill to perform a specific job. A license is awarded by a government agency and conveys a legal authority to work in an occupation.”

Unfortunately, variations in terminology make defining and comparing regulatory schema within and across states and territories difficult. The following definitions may be used to describe varying levels of regulation (Note: only the most frequent regulatory options for healthcare occupations are defined here – other occupational types may exist). For example, some states may be using the terminology “certification” but in reality, individuals are required to obtain that credential prior to engaging in a certain scope of services. In these instances, although the term “certification” is used in the title, the type of regulation is licensure.

What is the role of the Governor as it relates to levels of occupational regulation?

Terminology in occupational regulation can be confusing. In many instances, a profession type may be referred to as a “Certified [occupation]” when in reality, it is a required certification in order to provide certain services, and should be considered a License. When it comes to the potential role for governors and administrations, it may be helpful to adopt common language or definition within state code or guidance documents. Standardized language and resources would be helpful to both licensing entities/boards and individual citizens alike.

 LicenseCertificationRegistration
Title ProtectionYesYesNo
Scope Protection/ Required to Engage in PracticeYesNoYes

LICENSE

A form of state governmental regulation that restricts the title and practice of an occupation to only those individuals who receive licensure as set forth by state guidelines. Licensed individuals are held accountable by a state-appointed regulatory body to meet established standards. Protecting the health and safety of consumers and ensuring a sufficient level of service quality is the main rationale for occupational licensing. Licensing has been upheld as a mechanism for administering and enforcing standards among the health professionals within a state. Licensing defines the educational and experiential requirements for entry into the profession and outlines the scope of services/ practice associated with professional practice.

According to Nebraska code, “Licensure is considered the most appropriate form of regulation when four conditions are present:

  • There is sufficient potential harm to the public to justify state restricted entry,
  • When practitioners are highly independent and cannot be closely supervised,
  • When the scope of practice can be clearly and succinctly defined enough so that its action are easily distinguishable from those of other regulated professions, and
  • When the acts constituting the scope of practice are not predominantly functions that are generally considered part of the public domain.”[ii]

Notably, there may be some occupations within states that are given the distinction of “certification” or “certified,” but the regulation of these occupations is licensure. For example, states commonly refer to state-regulated nursing assistants as “certified nurse aide” or a similar title. In reality, individuals must obtain this “certification” in order to provide certain services in a federally regulated setting (generally a nursing facility). Therefore, because of the protection of title (one must obtain this credential in order to be referred to as a “certified nurse aide”) and protection of practice scope (one must obtain this credential in order to provide related services), in the instance of nursing assistants serving in federally regulated settings, individuals are required to obtain a level of regulation that is more synonymous with a license in order to practice in that setting. Therefore, while titled “certified nurse aide,” these individuals are working in licensed occupations.

Additionally, the Supreme Court decision Dent v. West Virginia upheld the State of West Virginia’s authority to require physicians hold a state physician license in order to practice medicine within West Virginia.

Finally, in June of 2020, the Federal Trade Commissioner released remarks which acknowledged the justification of the need for licensure in many instances within the healthcare sector. It is important to note that this report also acknowledges the importance of states and territories ensuring policies that support portability of professionals once entry requirements have been met. (See State Policies Options to Support License Portability for more information).

Examples of health occupations that fall under this level of regulation: Physicians, nurses, dentists, dental hygienists, nurse practitioners, physician assistants, behavioral health practitioners, and many others.

CERTIFICATION

Certifications are always voluntary and are not required to engage in practice. However, only an individual receiving a certification may use the title of “Certified [occupation title].” Certifications are generally used by states or territories when a state has deemed the services provided by an occupation do not mandate a credential review prior to providing the service, but that a credential review and associated designation may offer certain practitioners a distinction that promotes marketability of the professional’s qualifications to the general public or enable access to certain benefits such as Medicaid reimbursement.

Certification is frequently utilized in one of two forms: state certification and industry certification. These certification options are described below:

STATE CERTIFICATION

A form of state governmental regulation that restricts the title of an occupation but not the practice, enabling entry into this occupation by many professionals but enabling distinction of certain professionals that have met certain criteria that may enable access to certain benefits, such as the ability to reimburse services through Medicaid. State certification is voluntary for individuals to engage in practice associated with this occupation. However, only a state certified practitioner may use the title of “certified” practitioner. This form of regulation is generally appropriate when:

  • There is some level of potential harm to the public (although less serious than the potential harm which results in licensure, as if an individual’s state certification is revoked, he/she would not lose practice privileges).
  • The employer is able to make an informed choice of employee/provider based on certification status. In general, health sector employers are aware of the value of a state certification and set employment standards based on certain credentials.

Of note, a state may defer to a private, non-governmental association to credential individuals on behalf of the state. In this case, the certification would be classified as “state-approved certification.” This may be the case among certain non-licensed behavioral health occupations, such as peer specialists, to enable certified individuals to qualify for Medicaid reimbursement.

Current examples of health occupations that fall under this level of regulation: nursing assistants, direct support professionals, dental assistants..

INDUSTRY CERTIFICATION

A form of non-governmental regulation in which a non-governmental entity offers certification based on education, experience, and/or membership. “Industry” certification is a regulatory option where credentials are driven by the skill needs within an industry/group of employers. Of note, industry certifications may be used in combination with another form of regulation, such as the case of physicians. While physicians generally receive a medical license from the state, they generally also maintain the board certifications associated with their specialty (industry), which are valued by their employer or contracting organization.

Current examples of health occupations that fall under this level of regulation: Certified Medical Assistants (ex. “Certified Medical Assistant” as designated by the American Association of Medical Assistants), Certified Phlebotomy Technicians (ex. “Certified Phlebotomist” as designated by the National Phlebotomy Association), etc.

REGISTRATION

A form of governmental regulation where an individual has to simply notify the state government of their name, address, and services provided before they can work. This creates a list of individuals that provide certain services, but does not require the individual to provide any type of proof of training/credentials in order to be on the list.

Registration is not generally used in healthcare, but is commonly used for some non-health professions, such as construction-related contractors. Other levels of regulation are more common as they include a verification of training (ex. Licensure or state certification) or some other mechanism whereby training is provided (ex. Industry certification).

REGISTRATION VS. REGISTRY

“Registration” is not synonymous with “registry.” “Registration” is a level of occupational regulation that simply requires individuals engaging in a certain practice (or providing certain services) to maintain their name on a list. In contrast, a “registry” simply refers to a list of individuals and does not necessarily have any correlation with the level of occupational regulation. In fact, many levels of regulation require that a registry be maintained for individuals. For example, physicians, while generally regulated at the level of “licensure” are also added to a state’s public facing “look-up” features, where their information is maintained on a registry of active physicians. The same is generally true of state “certified” individuals.

State Policy Options to Support License Portability

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“Portability” refers to the mobility potential of licensed/certified health professionals. Generally, states and territories seek portability policies to support recruitment of healthcare professionals and reduce administrative burdens associated with licensure for qualified healthcare professionals.

Instances when a state might desire portability policies:

  • To support gainful employment of military personnel who move frequently
  • Expedited deployment of healthcare professionals in the instance of a public health emergency
  • To create an accessible regulatory environment that support health professions recruitment
  • To enhance access to healthcare services through telehealth services

As states and territories are exploring portability policies, the below strategies may be explored:

License Reciprocity or Endorsement (Sometimes Known as “Licensure by Credential”)

What: These policies enable a health professional with a license or certification from another state to become licensed or certified in a new state without going through the initial license application process. Endorsement is essentially a “stamp of approval” that validates the process of initial licensure that was completed by an external state’s licensing authority, but still requires the individual to become licensed within the state in order to practice within the state. License reciprocity or endorsement is a common regulatory policy within the health sector and many licensing entities have adopted these policies.

Why: Without active endorsement policies, healthcare professionals that are licensed in an external state would have to undergo the process of initial licensure, which generally includes submitting transcripts, validating completion of all training requirements (including educational programs, examinations, and experience if applicable). (Of note, there are some activities that are generally still completed in the cases of endorsement, including background checks, fingerprinting, etc.).

Governors’ Role: Governors could call for license reciprocity or endorsement policies in executive legislative platforms or through legislative proposals.

Example: California has legislated provisions that enables dental hygienists with licenses in other states to become licensed in California if certain state-specific criteria are met (ex. Full review of qualifying education and examination, passage of a state jurisprudence examination, etc.).

Universal License Recognition

What: Laws requiring licensing bodies to grant a license to a practitioner certified in another state, many times without the need for a full review of the individual’s credentials.

Why: Instead of approaching licensing portability profession-by-profession, universal license recognition strategies generally provide reciprocity provisions for a broad swath of profession types.

Governors’ Role: Governors could consider promoting universal license recognition policies to support portability for many professions.

Examples:

  • Colorado established the Occupational Credential Portability Program which enables out-of-state license holders to qualify for a Colorado license, with limited exceptions.
  • Utah has language within the statute of their licensing agency related to recognition for licenses for all professions: “the division shall issue a license to a person who has been licensed in a state, district, or territory of the United States if: a) after being licensed outside of this state, the person has at least one year of experience in the state, district, or territory of the United States where the license was issued; b) the person's license is in good standing in the state, district, or territory of the United States where the license was issued; and c) the division determines that the license issued by the state, district, or territory of the United States encompasses a similar scope of practice as the license sought in this state.” (Utah Code 58-1-302 (1)).

Model Laws and Rules

What: Model laws and rules are standardized language which may include references to licensure entry requirements or portability. Model language has been developed for many professions, generally prepared by the professional association. Adoption of model laws and/or rules is generally less restrictive than adoption of a licensure compact, as it can be modified through legislative or rulemaking processes as opposed to through a compact oversight body.

Why: Adoption of model language supports uniformity of licensure or practice provisions.

Governors’ Role: Licensing boards could explore whether model rules are available for the profession and, if desirable, pursue adoption of those policies through legislative packages or executive branch/licensing board rule promulgation.

Example: Model language exists for nurses as published in the National Council of State Boards of Nursing Model Act.

Licensure Compacts

What: Licensure compacts are formal agreements between states or territories that are enacted through legislation. Language that is adopted in a licensure compact is uniform across all compact participants and can only be modified through agreement between all participating states or territories (or a termination of participation).  Licensure compacts generally follow a recognition model (whereby a compact-holder is offered a license or privilege to practice in another state, such is the case in the Nurse Licensure Compact and Emergency Medical Services Compact), or expedited licensure (made possible by uniform licensing requirements, such is the case in the Interstate Medical Licensure Compact).

Why: Licensure compacts are common state portability solutions, and have been rising in popularity for health related professions in recent years.

Governors’ Role: All licensure compacts are structured differently and each have variations in which states or territories are participants. Governors can learn more about licensure compacts that relate to healthcare professions and determine which, if any, compacts would provide benefit and are feasible for their state. If desirable, governors could include compacts in a legislative platform or proposal.

Examples: There are numerous licensure compacts in healthcare, including:

Resources

Compacts 101

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What are the types of compacts?

Compacts are formal agreements between states and territories that are enacted through legislation. Language that is adopted in a compact is uniform across all compact states and territories and can only be modified through agreement between all participating members (or a termination of a state’s participation).  States can utilize compacts as a legal relationship to address an issue on a variety of topics including health topics. Compacts can be used to address any issue where states have a need to coordinate across state and territory borders. For example, there are compacts in place to achieve activities such as solving boundary disputes, managing shared natural resources, or building resilience to natural disasters. There are also compacts related to higher education, such as the Western Regional Education Compact through the Western Interstate Commission, which supports cooperative delivery of quality higher education in Western states. According to the Council for State Governments (CSG), “every state is a member of at least one compact. There are over 250 active compacts in the U.S., and on average states have enacted about 25.”  Information on this page is focused on health licensure compacts.

What are licensure compacts?

Licensure compacts are formal agreements between states that are enacted through legislation in each member state or territory to support portability of qualified health professionals and reduce barriers to practice between state lines. All compacts are structured differently. Some are structured as a multi-state license, some are considered a privilege to practice model, but each compact category is described below. It is important to note that although the compacts have been organized into these categories, there are additional differences between them as to how a compact impacts the regulation of the profession in the state. For example, a compact’s impact on the state’s ability to monitor workforce supply and a compact’s implications for scope of practice may be of particular interest to states.

Health-related licensure compacts fall into one of three types:

  1. Multi-state License
    • What is it?
      • Professionals obtain a single license in their home state that enables them to practice in all Compact-participating states without additional action.
    • Which professions have this type of compact?
  2. Privilege-to-Practice
    1. What is it?
      • Professionals obtain a single license in their home state then apply for privilege to practice in other Compact participating states.
    2. Which professions have this type of compact?
  3. Expedited License Review
    • Professionals wishing to participate in this Compact would undergo an expedited process for license application/renewal but would be required to obtain separate licenses in all states where they will practice.
    • Which professions have this type of compact?

What is the role of the governor with respect to interstate compacts?

  • Governors play an important role when it comes to authorization of licensure compacts through the ultimate enactment of licensure compact legislation.
  • Governors regularly review health workforce-related compacts and become familiar with those in which their states actively participate.  To explore which health workforce related compacts a state participates in, click here.
  • If considering participation in a compact, governors could also explore complementary workforce data strategies that support a state/jurisdiction’s ability to monitor healthcare professionals practicing within the state (for both compact-participating and non compact-participating professionals).

Resources:

Telehealth and State Health Workforce

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What is telehealth?

HRSA defines telehealth to broadly include the use of electronic information and telecommunication technologies to support long-distance clinical healthcare, patient and professional health-related education, health administration, and public health. Telehealth has been around for decades, but the COVID-19 pandemic accelerated the expansion of telehealth as a means of delivering healthcare to Americans.

It is important to note that telehealth is a mechanism to support the delivery for healthcare services and is not a service itself and as such, there may be instances or services that are not deemed appropriate to be provided via telehealth modalities. Healthcare professionals use telehealth to provide healthcare services for patients remotely. These services may be provided synchronously (professional and patient interacting in real-time) through virtual appointment, or asynchronously (professional and patient interact at separate times) using store and forward technologies. Regardless of the implementation approach, telehealth is dependent upon the availability of health professionals to provide healthcare services. Health professionals can deliver healthcare services across state lines, depending on the statutes and rules set by state policies.

States policies related to the healthcare workforce have an important role in telehealth.

Occupational Regulation

Licensing

  • Healthcare professionals are required to hold a license or be authorized to practice in the states they practice in, including states that they provide healthcare services through telehealth.
  • In some instances, states have separate telehealth certifications that are required in addition to licensure for professionals geographically located outside the state.
    • Example: Indiana has a Telehealth Provider Certification that is required by Indiana Code 25-1-9.5-9. This certification is to ensure that the practitioner and their employer voluntarily agree to be subject to the jurisdiction of Indiana courts and Indiana substantive and procedural laws concerning the care of an individual who is located in Indiana at the time of service. These certifications must be completed before the provider may establish a provider-patient relationship for an individual in Indiana.

Licensure Portability

  • Telehealth enables healthcare professionals to provide services to patients located in different geographies. State policies regarding licensure portability (provisions related to a licensed individuals ability/authorizations to practice in other states/jurisdictions) may enable states to recruit qualified health professionals to provide telehealth services for their constituents (see State Policy Options to Support License Portability )
    • Licensure Reciprocity and Endorsement
    • Licensure Compacts
    • Universal License Recognition

Medicaid Policy

The specific healthcare professionals that are authorized to deliver and receive reimbursement for healthcare services provided for Medicaid enrollees is defined in each state's State Plan. The State Plan is developed by the State Medicaid agency and approved by the Centers for Medicare & Medicaid Services (CMS). Authorization is required for professionals that provide services through telehealth.

  • Increasing the types of providers that are authorized to deliver services (generally through legislation) also requires a state to submit a State Plan Amendment to CMS in order for providers to be reimbursed for telehealth services. Increases in the types of authorized providers must be considered in relation to broader regulatory policies (scope of practice) to ensure alignment. For example, if a state desired to allow behavioral health counselors to be reimbursed through Medicaid for services provided via telehealth, a state would need to ensure this is supported by both Medicaid service policies (generally under the authority of state Medicaid agencies that would have authority to submit a plan amendment) and through professional practice policy alignment (generally through a state legislature or through authority given by Legislature to a behavioral health licensing board).  
  • The health of school-aged children is an important indicator of the health of a community. The delivery of health services at schools is a strategy to enhance access for children, especially those who face barriers to accessing healthcare services. States have opportunities to support access to health services for school aged children by developing policies for Medicaid to reimburse for school-based telehealth services. As of May 2021, 24 states had Medicaid reimbursement policy for School-Based Telehealth services.

Additional Considerations

Broadband policies - Certain modalities associated with telehealth services require access to broadband internet. Such access can be especially challenging for rural communities. Governors have the opportunity to support telehealth services through policy initiatives which seek to expand broadband access. For more information see NGA commentary: Governors Lead on Expanding Access to Affordable Broadband for Telehealth Services.

Resources

Scope of Practice

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Scope of practice policies are regulatory provisions which specify the activities and conditions under which a licensed health professional may practice. These policies are determined for licensed health professions at the state level through laws and regulations (see Level of Occupational Regulation for additional details).

Because they define the specific activities and conditions under which a licensed healthcare professional may practice, scope of practice policies have a significant influence on a state's health workforce and healthcare delivery system.

What is the role of the Governor in the scope of practice for health professionals?

  1. State licensing entities/boards develop and implement rules, including those related to scope of practice, as authorized through legislation. Governors are able to influence rules through appointment of licensing agency leadership or licensing board members.
  2. Governors may issue Executive Orders to modify scope of practice for health professionals. This was common during the COVID-19 pandemic, and many Governors issued orders which directly impacted the scope of practice for health professionals. Orders included authorizing reinstatement of licenses for retired health professionals, enabling health professionals to administer immunizations, permitting expanded telehealth services, and recognizing out-of-state licenses. For example, Indiana Executive Order 20-05 permitted out of state healthcare providers to practice in Indiana without an Indiana license. There are numerous instances where temporary orders related to health professional scope of practice issued by the Governor have been made permanent through legislation.
  3. Governors may include scope of practice related initiatives in executive legislative platforms or through legislative proposals.

Resources