The Value of Codifying a National Approach to Licensing Military-Affiliated Health Care Providers

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Statutory change will ease medical training and health care delivery by the Department of Defense.

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A largely overlooked component of the recently-enacted 2012 National Defense Authorization Act (NDAA) addresses health care administration, arguably making the most significant changes to military health care rules in fourteen years.

In 1998, Congress authorized military health care providers performing their official duties to practice with an out-of-state license in any Department of Defense (DoD) or DoD-affiliated civilian facility “or any location authorized by the Secretary of Defense.”  That authorization has assisted the Military Health System (MHS) in pursuing training affiliation agreements with civilian trauma centers to ensure its uniformed medical personnel are obtaining “real world” experience that best approximates battlefield care. The 2012 law expands this state licensure exception to DoD civilians as well as certain contractors.

The changes codified in the 2012 NDAA had already been authorized by federal regulation and supported by Supreme Court doctrine. But by codifying existing regulatory policy, Congress has enhanced the law’s clarity, easing the ability of the MHS to forge partnerships with non-federal entities for mutually beneficial training, skills maintenance, and other professional activities across the spectrum of DoD’s medical workforce.

Existing DoD regulatory policy requires a current and unrestricted license in any state (or equivalent U.S. licensing authority) for military personnel (active and reserve), federal employees, volunteers, and personal services contractors in the health care field.  Similarly, the Office of Personnel Management (OPM), which sets qualification standards government-wide, requires medical officers with patient care duties to have “a permanent, full, and unrestricted license to practice medicine in a State, District of Columbia, the Commonwealth of Puerto Rico, or a territory of the United States” – regardless of the actual location of federal employment.

As such, most government agencies with health care personnel rely on the preemption doctrine to employ health care practitioners in locales other than where they are licensed. Supreme Court precedent supports preemption for federal personnel.  The Court has, for example, prevented individual states from mandating that postal workers obtain multiple driver’s licenses to transport mail cross-country, and has shielded registered patent agents from a requirement to seek local bar admission in order to practice before the U.S. Patent and Trademark Office.

If federal law already authorized portability of state licensure for government personnel, and if the rationale supporting such policies is sound, why did Congress need to enshrine this approach in the 2012 NDAA?

Federal preemption is ultimately strongest when reinforced by statute.  Such legislative clarity is especially helpful in the health care sector, where authority over the conditions of practice is diffuse and localized.

Not only do states govern the professional licensure of medical practice, but medical facilities are charged with reviewing each prospective provider’s credentials and determining whether to grant practice privileges within the institution and, if so, to decide the extent of such privileges. In a federal facility, the final arbiter of the adequacy of a particular practitioner’s qualifications and licensure is inherently a federal employee (in the case of a military treatment facility, the facility’s commander).  Outside of federal installations, individual medical facilities retain discretion over who can practice under their institutional umbrella.

Thus, one major benefit of explicit statutory authorization for multistate practice is that it enables non-federal hospitals to more readily privilege government personnel, i.e., grant the personnel permission to provide medical services, when assigned there.  This can significantly simplify the process of negotiating training affiliation agreements between federal and non-federal entities.

Most importantly, such statutory clarity can provide peace of mind for covered health care practitioners when their assigned duties take them outside of strictly federal facilities and into the local community.  Providers instinctively tend to worry about the strength of their tort immunity when practicing off the government “reservation” in a state where they are not licensed – despite the fact that coverage under the Federal Tort Claims Act is contingent upon the scope of federal employment rather than physical location.

By alleviating health care professionals’ concerns about practicing in a foreign jurisdiction – whether in a steady-state or disaster-relief context – the new legislation authorizing licensure portability will assist the military and related civilian health care systems in providing essential medical services with confidence and a clear head.

Charles G. Kels

Charles G. Kels is an attorney for the Office of Health Affairs of the Department of Homeland Security and a major in the U.S. Air Force Reserve. Opinions expressed in this essay are those of the author alone and do not necessarily reflect those of the Department of Homeland Security, Air Force, or Defense Department.