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The licensing of healthcare providers and professionals

i Institutional healthcare providersLicensure

The licensing of hospitals and other types of healthcare facilities is regulated at the state level, resulting in at least 51 different sets of licensure requirements for institutional healthcare providers. Notably, even the types of healthcare facilities that require a licence to operate vary from state to state, which can become particularly challenging as more and more healthcare providers move towards consolidation. In general, states will require licensure of hospitals (both general and specialism), nursing homes, ambulatory surgical centres, healthcare clinics (though the specific types of licensure and restricted activities can vary widely from state to state), pharmacies and other similar healthcare facilities.

For hospitals and other health facilities, the licensure laws typically cover issues such as professional and non-professional staffing; physical plant requirements; required clinical services; administrative capabilities; and a vast array of other requirements. In most states, in addition to hospital licensure, full-service hospitals require other licences and permits, such as laboratory permits, permits relating to hazardous wastes, food service permits and transportation licences for hospital-affiliated ambulances. Other residential healthcare facilities, such as nursing homes or behavioural health homes, are typically subject to similar requirements.

States also generally impose sanctions for the provision of healthcare services without a licence by a facility, which often include penalties per violation or per day in operation without a licence. State licensure authorities also have individualised procedures for the issuance, suspension or termination of a facility licence, which typically provide for an appeal by a provider that is refused a licence or has its licence suspended or terminated. As described in Section IX below, many state governments waived certain facility licensure and operational requirements during the covid-19 public health emergency.

Certificate of need laws

There are also a number of other healthcare-related restrictions that may preclude the construction of a hospital or other health facility. In this regard, a small number of states have certificate of need (CON) (sometimes called 'determination of need') laws that regulate the construction and licensing of new hospitals and other types of healthcare facilities and the addition of new beds to existing facilities. These laws are aimed at avoiding excess capacity and inefficiencies in the delivery of healthcare.

A federal law enacted in 1974 provided for the establishment of CONs by the states. That law was repealed in 1986 and, since that time, a number of other states have repealed their CON laws or dialled back the types of healthcare facilities requiring a CON. However, despite the gradual fading of CONs during the 1990s and 2000s, as states seek to find ways to contain costs as Medicaid and private employer spending on healthcare becomes a serious budgetary concern, some states are revisiting their CON laws.

Certification and accreditation

In addition to the licensure requirements administered by the states, Medicare, Medicaid and other government reimbursement programmes rely on the 'power of the purse' in regulating healthcare providers in their delivery of services. These programmes impose 'conditions of participation' and 'conditions of payment', which essentially mandate providers' compliance with specified standards set out in the government programme's regulations and policies in order to be reimbursed. The process of determining compliance by a hospital or other healthcare provider with the programme's rules is known as 'certification', which is a right to participate in the government payment systems, distinct from state 'licensure' and private 'accreditation'. In most cases, hospitals will possess all three: certification, licensure and accreditation, although there are hospitals that do not.

Although they are ultimately responsible for granting certification, the Medicare and Medicaid programmes delegate much of this responsibility to private accreditation agencies and state 'survey agencies'. The two primary private accreditation bodies in the United States are the Joint Commission (TJC) (previously referred to as the Joint Commission on Accreditation of Health Care Organisations, or JCAHO), which surveys most hospitals and other healthcare institutions, and the American Osteopathic Association (AOA), which surveys osteopathic hospitals. Foreign healthcare organisations may be most familiar with Joint Commission International, or JCI, affiliated with TJC. Compliance with TJC or AOA standards affords a hospital 'deemed status', meaning that a hospital has complied with Medicare, and usually Medicaid, requirements. As noted above, accreditation also confers deemed status for state licensure purposes in some jurisdictions.

Hospitals are not required to seek private accreditation. The process of seeking accreditation is lengthy and expensive. Some smaller organisations seeking to reduce their expenses forego accreditation and rely on the surveys by the state survey agencies. The federal Medicare programme has contracted with the state healthcare agency in every state (usually a Department of Public Health) to be the official state survey agency for the CMS.

ii Healthcare professionals

Health practitioners are subject to licensure by their respective state boards. These typically include the medical board for physicians, the nursing board for nurses, and other boards for other types of licentiates. In some states, the state department of health performs this function for some professional categories. These boards establish and enforce the criteria for initial and ongoing licensure, as well as a process for revoking such licensure or taking other disciplinary action, such as the imposition of probation. In response to the covid-19 pandemic, many state medical and nursing boards waived certain licensure requirements, as described in Section IX, below.

Although each state issues its own licence, some states permit reciprocity by honouring each other's licences, such as the practice of medicine across state lines via telemedicine and the Nursing License Compact (NLC), under which 35 member states recognise the nursing licences granted by all the other member states.

In addition to government licensing and certification requirements, 'credentialling' of individual professionals occurs at the facility level. Compliance with standards and requirements established by individual health facilities permits individual licentiates to perform services within those facilities. Health plans, professional associations and licensed outpatient facilities usually also impose such requirements.

State and federal statutes applicable to physicians and certain other licentiates provide hearing and appeals rights when a state agency denies, or proposes to deny or revoke, licensure or certification. Similarly, hospitals, health plans and certain other providers or professional organisations are required by state and federal law to have formal peer review and quality assurance or quality improvement procedures in place whereby they determine whether to permit a new practitioner to provide services to their patients. These procedures also govern any adverse disciplinary actions against practitioners, such as the revocation or restriction of their clinical privileges. Under a federal law called the Health Care Quality Improvement Act (HCQIA), and under state laws in many jurisdictions, these organisations must follow specified procedures in making adverse decisions affecting a practitioner's privileges. In most states, practitioners must go through or 'exhaust' these administrative appeal procedures before they can challenge the denial or revocation of privileges or other adverse action in court. Because failure to follow these rules can result in liability to the organisation, it is incumbent on hospitals and other healthcare organisations that are subject to these rules to have a compliant peer review and appeals process in place prior to commencing operations.

iii Negligence liability

One characteristic of the US healthcare system that is viewed by many as contributing to its high cost is professional liability ('medical malpractice'). Under the US professional liability system, any patient who believes he or she has been hurt or injured by the professional negligence or wilful misconduct of a healthcare provider is entitled to damages if he or she demonstrates that it is more likely than not that the negligence or wilful misconduct caused the patient's hurt or injury. As a result, in a practice called 'defensive medicine', physicians may order tests that are not medically indicated out of fear that the theory or failure to order the test will be second-guessed if the patient has a bad outcome.

In addition to provider liability, medical devices and pharmaceuticals companies experience liability for patient injuries, most notably 'products liability'.

A recent study by Johns Hopkins University found that, despite some calls for reform (code for reducing the ability of injured patients to seek compensation), more than 250,000 patient deaths per year in the United States are a result of medical error, making these types of errors a leading cause of death in the country.8

The covid-19 pandemic led the federal government and many states to pass measures waiving or limiting provider liability for care provided during the public health emergency. These measures are discussed in more detail in Section IX, below.