Plan to cover mental health program would create new bureaucracy, raise taxes & costs

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One of the most important drivers of increased health care spending in the United States is the government-created divide between users and payers. Simply put, government mandates, subsidies, tax preferences and regulations have largely separated health care users from payers. That separation has created huge incentives for individuals to over-consume health care services while reducing the incentives to control costs.

A legislative proposal this year to fund a state youth mental health services program (Senate Bill 128) would worsen this divide, eliminating incentives to lower costs and likely pushing up insurance premiums.

Background

The state Department of Health and Human Services administers a program called Families and Systems Together (FAST) Forward. It bundles clinical and functional mental health services in a single package of comprehensive services to Granite Staters between the ages of 5-21 who have emotional or behavioral disorders.

The program is run on behalf of the state by two care management entities. Medicaid covers the costs for almost all FAST Forward enrollees. 

About 20% of FAST Forward enrollees have private health insurance, which, according to the Department of Health and Human Services (DHHS), does not cover the full complement of wrap-around services. Of that 20%, 75-80% qualify for Medicaid because of the severity of their needs and are switched to Medicaid to cover FAST Forward services, according to DHHS. That leaves a relative handful of young people in the program who don’t qualify for Medicaid.

So far, private insurers have not covered the entirety of FAST Forward services, though many of the clinical services would be covered if billed individually, insurers say. 

According to insurers, the problem is solvable through negotiations. They say that the two care management entities are out-of-network, so have no relationship with insurers, and have not reached out to negotiate coverage.

Sabrina Dunlap, senior director of government affairs for Anthem Blue Cross/Blue Shield testified in a February Senate Health and Human Services Committee hearing that building relationships would be the first step in getting the privately insured patients coverage.

“That is a DHHS program administered by DHHS through two care management entities… Neither of those care management entities are in network as far as I know with any commercial carriers,” Dunlap said. “They’re not in-network with Anthem. And so you had two entities administering a program that commercial carriers had nothing to do with and really no knowledge of and no engagement by DHHS. And then we were being told that we were a drain on the program somehow.”

Legislators seeking coverage for the small portion of privately insured patients had considered mandating that insurers cover the program. But an insurance mandate would still leave some people uncovered, as a mandate would not apply to self-insured employers. 

A new tax and a new bureaucracy

Instead of a mandate, lawmakers have proposed taxing private insurers to pay for the services, and creating a new bureaucracy to administer the assessment. 

Senate Bill 128 would levy an “assessment” (tax) on health insurers, health maintenance organizations, third party administrators and health services corporations. It would establish a private non-profit organization called the New Hampshire Children’s Behavioral Health Association to set, collect and administer the assessment. Though a private non-profit group, it would function as a government bureaucracy set up solely to administer this one assessment. It would fund its operations by tacking an administrative fee onto the assessment. 

This would be like using a hammer to fix a hole in a sweater. The issue isn’t that insurers refuse to cover mental health services. It’s that the FAST Forward program bundles clinical treatments (typically covered) with non-clinical services (sometimes not covered), and insurers are given no say in negotiating coverage or costs.  

In testimony before the Senate Health and Human Services Committee in February, lobbyists for Harvard Pilgrim Health Care and Anthem Blue Cross/Blue Shield testified that they do in fact cover many of the clinical services offered in the program. But the program also includes what are called “functional” services that often are not covered. Those might include work on skills that help a person function in the outside world, but which are not classified as clinical mental health services. 

State Insurance Commissioner D.J. Bettencourt testified that “it is incredibly difficult to pull those services apart into their individual components.”

A blank check

SB 128 attempts to settle this dispute over coverage by listing the services insurers would have to cover through the assessment. But instead of defining specific services, it simply lists the broad categories of wrap-around services provided by FAST Forward, and states that covered services shall not be limited to those listed. 

Thus, SB 128 hands FAST Forward a blank check, then forces insurers to pay the portion of the bill they’re handed or face fines.

“One of the issues we see with the bill is that there’s not specificity and it just refers generally to program costs, and it’s not defined just exactly what those program costs are,” Michelle Heaton, director of the life and health division at the state Department of Insurance, told the Senate Health and Human Services Committee during the February 10 hearing.

News reports have put the cost of the small number of uncovered FAST Forward participants at $2 million a year. But DHHS testified that the cost was between $1 million-$1.9 million a year over the last five years. That seems low enough for insurer-provider negotiations to work out. 

Were the provisions of SB 128 to apply, however, there would be no check on future costs. As noted by state Department of Insurance staff, no one really knows how much SB 128 would actually cost insurers going forward because there’s been no thorough analysis of what services would be covered and what that coverage would cost. If costs are significantly larger than the rough estimates, insurers would have a strong incentive to recover them through higher premiums.

If the regulatory scheme in SB 128 becomes law, neither the state nor the care management entities have any incentive to negotiate for lower prices or to limit services to those clinically proven to work. Insurers will have to pay whatever bill they’re given. The bureaucracy that would collect the assessments is even empowered to fine and sue insurers who don’t pay.

Conclusion

SB 128 is premised on the belief that every component of the FAST Forward program is both essential and cost-effective for every individual who enrolls. Private insurers have publicly stated that they cover most of the services but might not cover others and would like to negotiate with providers to solve this coverage gap. That’s reasonable. The state, which covers most of the cost of the program, should also want someone looking at costs and effectiveness. 

Instead, SB 128 would give DHHS and the care management entities total control over all services offered, create a new quasi-state bureaucracy to bill insurers, and allow the quasi-state entity to punish insurers who don’t comply. In sum, it tries to solve a small but important insurance coverage issue through force and intimidation, rather than good-faith negotiation. In so doing, it severs the relationship between users and payers, which would create additional upward pressure on both costs and premiums.

Download this policy brief here: Childrens Behavioral Health Assoc Policy Brief.

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The Medicaid alarm is ringing

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Two years ago this week, we warned legislators that a day of reckoning was coming for Medicaid. 

“Any discussion of expanding Medicaid coverage or eligibility should start with the understanding that current spending levels are unsustainable, and increasing those levels just accelerates the date of reckoning,” we wrote.

With Congress looking to make $2 trillion in spending reductions, that day is suddenly closer, if it has not yet arrived.

U.S. House Republicans want to trim $880 billion from funding overseen by the Energy and Commerce Committee, which controls Medicaid and Medicare spending, among other appropriations. Medicaid is the most likely source of most of these savings. As The New York Times put it on Tuesday: “What can House Republicans cut instead of Medicaid? Not much.”

Even if immediate reductions in the rate of growth of Medicaid spending survive the current budget negotiations, changes have to come. The Congressional Budget Office (CBO) projected last year that federal spending on Medicaid and the Children’s Health Insurance Program (CHIP) would increase from $571 billion in 2023 to $858 billion in 2034 despite falling Medicaid enrollments. 

The federal deficit in Fiscal Year 2024 was $1.8 trillion. The federal debt surpasses $36 trillion. Washington’s deficit spending is driven primarily by entitlement programs. Last fiscal year, Washington spent more on interest payments than defense. Congress, at last, is starting to pay attention.

The CBO recommended in December that Congress cap Medicaid spending and reduce federal matching rates as a way of reducing federal deficit spending. House Speaker Mike Johnson this week rejected those options for the current stopgap spending bill, but they remain on the table going forward.

Looming federal reductions, even in just the rate of growth of the program, are not the only reason for legislators seek savings in Medicaid. 

Medicaid now consumes 29.6% of New Hampshire spending, according to the National Association of State Budget Officers. That’s 10 percentage points higher than K-12 education spending (19.6%).

Despite having the lowest poverty rate in the nation, New Hampshire devotes a higher share of its state spending to Medicaid than all other New England states except Maine. To the extent that Medicaid funds health insurance coverage for able-bodied adults who could purchase insurance on the private market or obtain it from an employer, these are wasted dollars that could fund other state priorities or be returned to taxpayers.

Activists and some legislators have expressed alarm that Gov. Kelly Ayotte has proposed a premium payment for some Medicaid recipients. Given the size of the Medicaid spending problem, Ayotte’s proposal is extremely modest and should meet with zero opposition. Maine, Massachusetts, Connecticut and New York charge premiums to some Medicaid recipients. New Hampshire should have been doing this all along. 

Though a premium is a good start, it can’t be the end of the conversation. A more serious reconsideration of Medicaid spending should follow. Long-time assumptions about the federal government’s ability to continue borrowing to pay for this program are no longer operable, and the state’s own contribution is straining other budget priorities. 

It is not financially sustainable for Medicaid to continue consuming more and more of the state budget. If lawmakers are not reconsidering current levels of Medicaid eligibility and spending, particularly for the population that received expanded Medicaid coverage after the Affordable Care Act, they are setting the state up for a nasty fiscal surprise in the not-too-distant future.

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The state says optometrists can’t do surgeries, including ones they’re trained to do

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As part of their doctorate-level education, optometrists learn how to perform minor surgeries, including some laser eye surgeries. Yet New Hampshire law prohibits optometrists from doing any surgeries, even ones they’re trained to do.

Only ophthalmologists (physicians who specialize in medical and surgical eye care) are permitted by law to perform laser procedures in New Hampshire. This restriction reduces the availability of certain eye care procedures and forces patients to go to specialists when they don’t really need one. 

Optometrists are trying to lift this outdated regulation and make some other changes to their state oversight so they can offer Granite Staters additional services they’re qualified to perform. 

Senate Bill 440 would, in a word, modernize the regulation of optometry in New Hampshire. This includes changing what constitutes the practice of optometry and moving scope of practice decisions and rulemaking authority to the state Board of Optometry (as opposed to relying on state statutes), all to treat optometry like other doctorate-level independently practicing professions in New Hampshire.

Currently, optometrists in 12 states can perform laser surgeries, according to the American Optometric Association: Alaska, Arkansas, Colorado, Indiana, Kentucky, Louisiana, Mississippi, Oklahoma, South Dakota, Virginia, Wisconsin, and Wyoming. 

These procedures include YAG (yttrium aluminum garnet) laser capsulotomy to remove clouded tissue on the back of the lens implant after cataract surgery; LPI (laser peripheral iridotomy) and SLT (selective laser trabeculoplasty) for treating some forms of glaucoma; and excision, removal, drainage, or injection of a variety of “lumps and bumps.”

The New Hampshire Medical Society opposes SB 440, saying it would jeopardize the health and safety of patients. Evidence from other states suggests otherwise.

Russell Laverty, OD, executive director of the Oklahoma Board of Examiners in Optometry, wrote to the Senate Executive Departments and Administration Committee that Oklahoma allowed optometrists to do laser eye surgeries starting in 1998. 

“Since 1998 there have been an additional estimated over 50,000 laser surgery procedures in which there were no complaints registered,” he wrote.

Since 2011, optometrists have performed more than 60,000 laser procedures in Kentucky, according to Joe E. Ellis, OD, president of the Kentucky Board of Optometric Examiners. The board hasn’t received any complaints or been notified of any adverse effects related to the surgeries, according to Dr. Ellis.

Dr. Nate Lighthizer, optometrist and associate dean at the Northeastern State University Oklahoma College of Optometry, testified in writing that more than 30,000 laser procedures in total have been performed by optometrists in Louisiana since 2014, Alaska since 2017, and Arkansas from 2021–22 combined. How many negative outcomes have been reported across all three states? Zero.

The reason for the shortage of complaints is simple. Optometrists are trained to perform minor laser and traditional surgeries. According to Laverty and Lighthizer, laser procedure is taught to every optometry student in every college of optometry in the United States, where students earn Doctor of Optometry (OD) degrees after roughly four years of graduate study. 

By keeping professionally licensed optometrists from doing what they were specially trained to do, Granite Staters’ access to necessary eye care has been severely limited, especially in rural New Hampshire. 

According to data from the American Optometric Association, the U.S. Census Bureau, and the American Medical Association, there are optometrists currently practicing in all 10 New Hampshire counties. In Coos and Sullivan counties, however, optometrists are the only local eye care providers for the 26,163 urban residents and 48,682 rural residents between these two jurisdictions. 

That means that residents of Coos and Sullivan counties have to travel to neighboring counties to find the nearest ophthalmologist to perform some surgeries that could be performed by a resident optometrist.

In Carroll County, which is 90% rural, there are 1.7 optometrists per 10,000 people but only 0.2 ophthalmologists per 10,000. 

Moreover, each of the four New Hampshire counties with more than 100,000 residents (Hillsborough, Merrimack, Rockingham, and Strafford) has at least one optometrist per 10,000 people, but not one has at least one ophthalmologist per 10,000. 

With few ophthalmologists statewide, wait times for these laser procedures, that only they can legally perform, are very long in New Hampshire. 

The average total wait time for YAG, LPI, SLT, and “lumps and bumps” operations, both for the consultation and the actual procedure combined, are 3.8 months, 3.6 months, 4.6 months, and 4.2 months, respectively, per the New Hampshire Optometric Association (NHOA). 

Anecdotes gathered by an NHOA survey of member-owned practices across the state lend credence to these statistics:

“Recently what was a 1–3 month wait for SLT (selective laser trabeculoplasty) has turned into a 10-month wait, a disturbing access problem for my patients.” – Conway Eye Care, North Conway

“As of January 1st this year Mt. Ascutney has 1 cataract surgeon who stopped taking new patients over 1.5 years ago. The one and only cataract surgeon in Montpelier booking 6 months out for the consult. ANY referral to DHMC ophthalmology (which is less than 10 minutes from our office) is a minimum of 4 months but usually longer. But DHMC stopped accepting new patients for ANY glaucoma related issues 2 months ago. The oculoplastics MD left DHMC, hasn’t been replaced yet so patients have to go to Concord or Burlington, VT. DHMC has not been accepting new patients in the retina clinic for ~ 2 years, they now have 1 retina specialist (intravitreal injections).” – Dr. Sheila Hastie, Lebanon

“Patients are frustrated when they cannot see properly to drive, waiting for a YAG procedure that takes 2–4 months to get into the surgeon’s office. I recently had a patient who waited over three months for evaluation and then an additional two months for both eyes to be treated.” – Dr. Chris Daldine and Dr. Pattie Samuel Daldine, Nashua

“We have referred to Dartmouth-Hitchcock for many different types of visits and they are not accepting referrals of any kind and asking us to send patients elsewhere. We have also sent referrals to Concord Eye Center, Medical Eye, and NH Eye and they will run redundant diagnostic tests/visits confirming that the patient needs the referral even though they have received all visit notes and testing data in the referral. This adds unnecessary financial burden on patients and insurance companies.” – Capital Vision Center, Concord 

These problems will only worsen as the supply of ophthalmologists continues to shrink, as it’s projected to do. As Edward Timmons, director of the Knee Center for the Study of Occupational Regulation at West Virginia University, cites, 450 ophthalmologists became eligible to start working in 2022, but 550 ophthalmologists retired that year—a net loss of 100 providers nationwide in 2022 alone.  

Research published in Ophthalmology, the journal of the American Academy of Ophthalmology, estimates “a sizeable shortage of ophthalmology supply relative to demand by the year 2035, with substantial geographic disparities.”

The monopoly that ophthalmologists in New Hampshire have over eye surgeries, including minor ones optometrists are trained to do, has led to limited access to eye care, longer wait times and delayed procedures for Granite Staters. 

When supply of a service is artificially limited, but demand remains constant or increases, costs for that service inevitably increase. 

In the face of these facts, the opposition to SB 440 looks less like concern for patient health, safety and well-being and more like ophthalmologists protecting their turf by limiting competition. 

Simply permitting optometrists to do what they were trained to do would be an obvious way to address many of these problems.



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How not to fix surprise ambulance bills

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How we pay for ambulance service, as with virtually everything else in health care, is messed up. 

When you need a car ride, you can call a taxi or use a ride-sharing service. You know exactly what you’ll be charged, and other consumers’ ratings help you choose a quality service.

When you need an ambulance, you call 911 and hope for the best. You have no idea who will show up or how much it will cost.

The difference is that we have no competitive market in ambulance services. The service is usually contracted or provided by your local government. 

As a consumer, you have zero control over the cost of an ambulance ride (and the medical services provided along the way). Rates are negotiated by local governments and insurers. 

Most ambulance rides are covered by Medicare (older individuals consume more ambulance services). The New Hampshire Insurance Department doesn’t have exact data but reported last month a municipal ambulance provider’s estimate of who pays for ambulance services: Medicaid 12.54%, Medicare 64.33%, commercial insurance 19.05%, TRICARE 0.43%, Veterans Administration 1.72%, and workers compensation 0.43%.

Medicare’s reimbursement rates are famously low and don’t come close to covering the actual costs of service. So providers are encouraged to bill private parties (individuals or insurers) at higher rates than they might if Medicare covered the cost of its patients’ services. 

If the ambulance that arrives at your door is in network with your insurer, lucky for you. But that isn’t always the case. When it’s out of network, you might be stuck with a bill for the difference between the insurance payment and the ambulance company’s billed rate. 

This is believed to be a big problem. But the Insurance Department reports that it received only 30 complaints statewide about such bills in the past two years. It’s a problem, but probably not as big as is commonly believed. 

If you were to fix this, how would you do it?

Legislators have tried for years to answer this question. It’s tricky because of the market distortions mentioned above. If people had individual ambulance insurance (like travel insurance), that would help. If ambulance providers competed like Uber and Lyft do, that would help. But those options can’t simply be mandated. So what do you do?

This year’s attempted fix is Senate Bill 407. As amended by the Senate, SB 407 sets a price floor, a very high one. 

When insurers do not have a negotiated agreement with an ambulance service provider, the bill would require insurers to pay the lowest of three options:

  • The rate negotiated between the ambulance service provider and the local government;
  • The rate of the provider’s billed charges;
  • The Medicare reimbursement rate multiplied by 325%. 

Can you spot the potential problem?

Medicare rates are low, as we mentioned. But 325% of the Medicare rate is very high. The Insurance Department testified in the House Commerce Committee that insurers typically pay less than 200% of the Medicare rate.

SB 407 would set 325% of the Medicare payment as one of three acceptable reimbursement rates, then tell ambulance service providers that they can get paid this very high sum only if they don’t negotiate or bill a lower one.

What do you think will happen if this price regulation becomes law?

SB 407 creates an obvious and powerful incentive for ambulance service providers to raise their prices. Doing otherwise would leave money on the table. 

The bill also would encourage providers to negotiate for higher in-network rates and refuse to join the networks if they don’t get that higher rate. Why accept a lower in-network payment if you can get a higher, state-mandated payment if you stay out of network?

Surely legislators can find a way to address this issue that won’t drive up rates, insurance costs and local taxes.

Last month we wrote about the problem of lawmakers trying to settle policy disagreements by picking a random number and writing it into law. SB 407 is another example of this form of bad policymaking.

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Medicaid can’t continue expanding forever

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As legislators consider more proposals to expand Medicaid eligibility or services to specific populations, they ought to consider that Medicaid is both like and unlike the universe.

Like the universe, Medicaid is expanding faster than it should be. Unlike the universe, there’s no scientific possibility of Medicaid expanding forever. (Maybe the universe can’t either.)

Two bills moving through the Legislature this session are based on increasingly questionable assumptions about federal spending commitments. House Bill 282 would end the five-year waiting period for Medicaid eligibility for “lawfully residing” children and pregnant immigrants. House Bill 565 would extend Medicaid benefits for new mothers from two months after birth to a full year. 

These expansions come as New Hampshire enjoys a temporary, pandemic-related increase in its Federal Medical Assistance Percentage (FMAP), which is the share of Medicaid spending the federal government covers. For the duration of the federally declared COVID-19 emergency, 56.2% of New Hampshire Medicaid spending is covered by the federal government. When the emergency declaration ends on May 11, New Hampshire’s FMAP rate reverts to its normal level of 50%. 

(Incidentally, the additional 6.2 percentage points of additional federal funding during the pandemic emergency was given on the condition that the state not conduct eligibility determinations. That waiver of eligibility requirements will end when the emergency ends, which will affect an estimated 72,500 current enrollees. The pandemic enrollment increase has been so costly to the state that it has pumped additional federal funds into the Medicaid program.)

Legislators tend to assume that the default 50% rate will continue indefinitely. But the federal budget situation could prompt reductions in the federal contribution, something the Congressional Budget Office (CBO) recently suggested. 

The CBO this month projected that the federal deficit will nearly double from $1.4 trillion to $2.7 trillion in the next decade, and the federal debt held by the public would reach a record 118% of Gross Domestic Product. 

This record debt is driven by historically high federal spending, which is projected to increase from 23.7% of GDP to 24.9% of GDP by 2033. Federal spending has exceeded 24% of GDP only during World War II, the 2008 financial crisis, and the COVID pandemic. The CBO projects it to reach this level again within the next decade simply due to regular budget outlays. 

Federal revenues, meanwhile, are projected to remain around 18% of GDP through 2033. 

That unsustainable course will put pressure on Congress to cut costs or raise taxes or both. Anticipating this, the CBO in December offered suggestions for reducing the federal deficit. In the area of health care spending, the CBO suggested that Congress “establish caps on federal spending for Medicaid” and “reduce federal Medicaid matching rates.” 

Such actions are not out of the question. As the Congressional Research Service puts it, “Medicaid was designed to provide coverage to groups with a wide range of health care needs that historically were excluded from the private health insurance market.” But the program has grown over the years to cover people who could find coverage in the private market. 

By routinely expanding Medicaid benefits and eligibility, lawmakers have grown the program’s outlays from $206.2 billion at the turn of this century to $748 billion in federal fiscal year 2021. Medicaid accounts for 17% of U.S. health care expenditures. 

These expansions are unsustainable for both the state and federal governments. Eventually, some level of financial discipline, however small or limited, will have to be imposed. Clawing back Medicaid spending is politically easier than touching Social Security or Medicare. That is especially true after Medicaid has grown to cover people who could find alternative insurance coverage. Given those realities, current levels of federal Medicaid spending cannot be taken for granted.

Any discussion of expanding Medicaid coverage or eligibility should start with the understanding that current spending levels are unsustainable, and increasing those levels just accelerates the date of reckoning.

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Temporary licenses offer life support for N.H. health care system as permanent fix proves elusive

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On Feb. 1, amid a critical shortage of health care personnel in New Hampshire, the licenses of 22,328 medical workers were set to expire. That’s 26% of health care workers licensed to practice in the state. 

In January, the state’s Office of Professional Licensure and Certification (OPLC) prevented that disaster by issuing an emergency rule to extend the licenses — for four more months. 

When that rule expires on May 31, all of those licenses will expire with it. 

Unless the Legislature acts before then, Granite Staters will lose access to tens of thousands of medical professionals, including 951 mental health counselors, 1,064 social workers, 1,114 psychologists, 2,104 Advanced Practice Registered Nurses, and 14,920 physicians. 

Many of those, such as psychologists, are offering services remotely. Others, including a lot of physicians, were licensed under bulk applications and might have few New Hampshire patients. Others, such as nurses, fill staff positions in New Hampshire.

All of them were granted temporary emergency licenses during the pandemic. Those licenses were extended through January, then again through May. Legislators so far have refused to pass a law to make these licenses permanent, or to grant permanent recognition of out-of-state health care licenses. 

A health care system in crisis mode

Nearly two years after the first COVID case was documented in New Hampshire, health care in the state is being triaged through a rolling series of emergency professional license extensions. 

“We get calls all day saying, ‘We need you to approve this license right away,’” Lindsey Courtney, executive director of the OPLC said. 

“It’s mostly hospitals or residential or long-term-care facilities. And often it’s because they’re bringing in travelers. They’ll call a staffing agency and they’ll be told, ‘I can get you five people, but they have to be licensed tomorrow.’”

Because obtaining a permanent state license can take months, quickly licensing those new hires is done under a stop-gap fix the Legislature passed last year. It lets the OPLC offer temporary, 120-day licenses to health care workers.

“I would say that’s how the bulk of the traveling nurses get licensed,” Courtney said. “They don’t even seek a permanent license because they’re going to be here less than four months. If they had to seek a regular license, I’m not sure where we’d be.”

In seven health care fields, more than a third of licensed practitioners hold emergency licenses, a review of state licensing data shows. In two fields, the percentage is close to two thirds.

Percentage of licensed health care practitioners who hold an emergency license: 

Licensed Alcohol and Drug Counselors    36%

Advanced Practice Registered Nurse        39%

Licensed Independent Clinical Social Workers     44%

Licensed Clinical Mental Health Counselor           45%

Marriage and Family Therapists         47%

Psychologists        63%

Physicians             65%

Courtney has pressed legislators to provide a permanent fix by simply letting her office recognize out-of-state health care licenses. 

It’s hardly a new idea. The Journal of the American Medical Association published a brief arguing for medical license reciprocity in 1899. But every time it is proposed in New Hampshire, licensing boards object. 

Dominance of state licensing boards

Professional licensing in New Hampshire is conducted by 54 different state licensing boards. Thirty-five of those regulate health care occupations. 

In theory, giving current practitioners the ability to license new entrants into their field raises quality. In reality, it reduces the number of practitioners and gives established license holders the power to restrict competition.

For health care occupations, that is bad for patients, said Morris Kleiner, the AFL-CIO chair in labor policy at the Humphrey School of Public Affairs at the University of Minnesota, and an expert on occupational licensing.

If New Hampshire doesn’t make these licenses permanent, it could harm Granite Staters by suddenly and sharply reducing access to care, he said.

“Not having the licenses, or revoking them, reduces the supply of labor and reduces access of patients to these important, healing occupations,” he said.

Senate Bill 277, sponsored by Sen. Erin Hennessey, R-Littleton, would offer another temporary fix by extending the 22,328 emergency health care licenses, set to expire May 31, for another two years. That would stretch these “emergency” licenses out for four years in total. 

At a Jan. 11 Senate hearing on the bill, the OPLC offered an amendment to have the licenses made permanent. The Board of Psychologists opposed the amendment, saying it would amount to “rubber-stamping the approval of an out-of-state license” and therefore diminish the quality of care offered to patients in New Hampshire. 

Currently, 1,114 psychologists hold a temporary emergency license to practice in New Hampshire. They far outnumber the 645 psychologists who hold a permanent license. If these emergency licenses were to be made permanent, it would increase the number of permanently licensed psychologists by 73%. 

During the state of emergency, New Hampshire granted licenses in bulk to Massachusetts health care providers who accepted Medicare and Medicaid. This ensured that New Hampshire patients could see their caregivers remotely. In some cases, a large health care facility made a bulk application on behalf of its employees who might have New Hampshire patients. Bulk submissions can cover a lot of providers who don’t regularly see New Hampshire patients, or who don’t intend to move to the state. (Many of the emergency-licensed physicians fall into this category.)

About 35% of the emergency licenses for psychologists were part of a bulk submission. The rest of the applications came from individuals. That represents “a significant increase in the number of people who were actually practicing,” Courtney said. “Those were probably people conducting a lot of telehealth services with patients, probably a lot of cross-border care.”

“Mental health is continuing to operate in a largely telehealth platform,” she added.

Another bill, Senate Bill 330, sponsored by Sen. Bob Giuda, R-Warren, would authorize the OPLC to license practitioners who work in other states in which the requirements for licensure are substantially similar to those in New Hampshire. 

Both bills have bipartisan support in the Senate. But hostility to SB 330 from some licensing boards and licensed professionals suggests that a permanent fix to the problem is unlikely this year. 

It’s an uphill battle, given the political strength of licensing boards, Professor Kleiner said.

“The only state that has extended the temporary licenses and made them permanent is your neighbor in Massachusetts,” he said. “Most other states have let the temporary licenses expire, and that’s unfortunate given the spike in the number of COVID cases we’ve seen.”

An outdated system

State licensing boards typically meet monthly and approve license applications at their meetings. Though modern technology allows instant online application submissions, New Hampshire’s licensing system operates on a 19th century schedule of in-person meetings and infrequent reviews. Getting an application approved through the regular process can take months.

“Vermont’s doing it in 24 hours, and we’re competing for the same licensed person,” Courtney said. “You have to keep up with the times, and people are not going to wait around 60 days.”

Vermont a few years ago overhauled its professional licensure process to make it easier and faster to get a state license. (The reform was funded by a federal grant received in 2018.) 

The Green Mountain state processes all applications online and offers fast-track recognition for professionals who hold out-of-state licenses in many occupations. Under Vermont law, three years of experience practicing a regulated occupation in another state is considered sufficient experience to qualify for licensure.

“Colorado and Vermont are among the most efficient in the country at getting licenses processed,” Professor Kleiner said. “Vermont’s very efficient.”

Arizona passed a universal license reciprocity law in 2019. Since then, 4,000 people have used it to obtain state licenses. 

Such comprehensive reforms have never gotten far in New Hampshire. Some state boards have made improvements, for example by passing rules to allow the OPLC to process license applications between meetings. Others, including the boards for psychologists and licensed alcohol and drug counselors, haven’t. 

“We have a psychologist who lapsed his license,” Courtney said. “He’s been practicing for 30 years. He also practices in another state. It took him a month. If he had had patients, that would’ve been problematic because he would’ve had to choose between cutting them off or committing a violation.”

No serious complaints

Licensing boards often object to automatic reciprocity by arguing that it would jeopardize public health and safety. The record of the last two years suggests otherwise. 

The governor’s emergency order recognizing out-of-state health care licenses in New Hampshire took effect on March 23, 2020. Since then, 22,328 emergency licenses have been issued. Yet the state has received only two complaints about emergency license holders, Sen. Hennessey testified during the Jan. 11 meeting of the Senate Finance Committee. 

Neither of those complaints was serious enough to go to a hearing, Courtney said.

The number of practitioners operating under an emergency license varies by field. They include a single acupuncturist, six midwives, nine optometrists, 25 dietitians, and 92 licensed alcohol and drug counselors. In fields with significant shortages, the numbers can be substantial. Emergency licensees include 1,064 licensed clinical social workers, 2,104 Advance Practice Registered Nurses, and 14,920 physicians.

Far from creating a public health problem, these emergency licensees likely saved numerous lives by providing services that would not have been offered otherwise. Hospitals and nursing homes in particular have relied on emergency licenses to stay staffed during the last two years. 

Even with these additional health care workers, some facilities have had to close rooms and limit services. Were it not for the thousands of additional staff made available through emergency licensure, these closures would have been much worse. 

Despite the stressful conditions and difficult working environment that has prevailed for two years, only a few complaints have been made against emergency licensees, and none was serious enough to bring to a hearing. The tiny number of complaints is powerful evidence that the safety concerns regarding large-scale license reciprocity are unfounded, according to Courtney.

“I think we’ve shown that the world doesn’t end and the sky doesn’t fall when we remove some barriers for licensure,” she said. 

 

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State laws have limited the supply of new hospital beds for decades

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New Hampshire is scrambling to find enough staffed hospital beds to handle the current surge in COVID-19 patients. Suddenly, politicians on the left and the right are deeply concerned about the low number of hospital beds in the state. Which is kind of maddening because they’re the ones who created the shortage in the first place.

For decades, state laws have severely restricted the state’s hospital capacity. They still do. 

Before 2016, New Hampshire was one of many states with a Certificate of Need (CON) law that essentially required businesses to prove that a large medical equipment or facility investment was needed before it could be approved by the state. That law suppressed investment in new facilities and services. 

In 2016, the CON law was repealed, but it was replaced with laws that created additional restrictions on hospital capacity. Senate Bill 481, passed that year, added three major requirements into state law that restrict hospital competition. 

  1. RSA 151:2-g mandates that every hospital “shall operate an emergency department offering emergency services to all individuals regardless of ability to pay 24 hours every day, 7 days a week.” This law prohibits the creation of any competing hospital services that don’t also include a 24/7 emergency room. Conveniently, this law “shall not apply to any hospital licensed and operating prior to July 1, 2016, which does not operate an emergency department.” Incumbent hospitals are protected from this anti-competitive law. 
  2. RSA 151:4-a prohibits the establishment of any “ambulatory surgical center, emergency medical care center, hospital, birthing center, drop-in or walk-in care center, dialysis center, or special health care service” within 15 miles of an existing critical access hospital if the new facility “will have a material adverse impact” on the incumbent hospital. That is, if it would hurt the hospital’s business, it is prohibited from state licensure. A 15-mile radius might sound small, but it equals 706.9 square miles. 
  3. RSA 151:2-f mandates that every hospital, infirmary, “outpatient rehabilitation clinic, ambulatory surgical center, hospice, emergency medical care center, drop-in or walk-in care center, dialysis center, birthing center, or other entity where health care associated with illness, injury, deformity, infirmity, or other physical disability is provided” accept all forms of payment. This law mandates that medical facilities accept Medicare, Medicaid and private insurance — which means that it bans any facility designed to cut costs by accepting only cash payment. This inflates the cost of services and eliminates competition. 

In addition, RSA 151:2 VI (a.) imposes a moratorium on new beds for nursing and rehab facilities. It states that “there shall be no increase in licensed capacity of, any nursing home, skilled nursing facility, intermediate care facility, or rehabilitation facility, including rehabilitation hospitals and facilities offering comprehensive rehabilitation services.”

State laws ensure that it is much easier for incumbent hospitals and other medical facilities to expand than for new competitors to enter the New Hampshire market. The results are exactly what one would expect. 

Since 1980, New Hampshire’s population has increased by 49.6%. But in that time, only one new acute care hospital, Parkland Medical Center in Derry, has been built, Greg Moore, state director of Americans for Prosperity-NH has pointed out.

The current COVID-induced crunch on hospital capacity has many causes. The media have reported, accurately, that a surge in patients combined with a staffing shortage has put severe strain on the system. 

But that system entered the COVID-19 pandemic with a capacity already artificially constrained by anti-competitive state laws. Going forward, politicians who insist that New Hampshire needs to improve its hospital bed capacity can start by removing unnecessary barriers that make it extremely difficult for new competitors to enter the New Hampshire market. 

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96.5% of NH COVID infections, 93.5% of deaths are among unvaccinated, but state doesn’t publicize the data

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New Hampshire’s official COVID-19 statistics continue to show the efficacy of vaccines in fighting infection, hospitalization and death from the ongoing pandemic. But this information is not included on the state’s COVID-19 dashboard, nor in the daily or weekly COVID press releases, hindering the state’s vaccine promotion efforts. 

New Hampshire recorded its first breakthrough infection (a COVID-19 infection in a fully vaccinated patient) on January 20th of this year, the state Department of Health and Human Services reports. Since that date, only a small fraction of the state’s COVID-19 infections, hospitalizations, and deaths have occurred among fully vaccinated persons, according to data released to the Josiah Bartlett Center from the state Department of Health and Human Services. 

From Jan. 20-Sept. 24, 2021:

  • Only 3.5% of total COVID-19 infections (1,976 of 57,203) have occurred among fully vaccinated individuals;
  • Only 6.4% of initial hospitalizations (37 of 579) have occurred among fully vaccinated individuals;*
  • Only 6.5% of deaths from COVID-19 (28 of 430) have occurred among fully vaccinated individuals.

(*The state records COVID hospitalizations for those who were hospitalized upon the initial report of their infection. If someone is hospitalized after the initial report of infection, that would not be included in the hospitalization statistics. The state has always reported COVID hospitalizations this way.) 

While state data show that 96.5% of New Hampshire’s COVID-19 infections, 93.6% of initial hospitalizations and 93.5% of deaths have occurred among unvaccinated individuals since January 20th, these statistics are created manually within the department and thus are not part of the daily or weekly information released to the public. 

Making these statistics a regular part of the state’s vaccination message might help reduce vaccine hesitancy, polling suggests. 

And higher vaccination rates would improve the state’s economic prospects while accelerating the end of the pandemic. 

New Hampshire ranks 10th in the nation in the percentage of residents who are fully vaccinated (61%), according to the latest tracking data from Becker’s Hospital Review. Yet that percentage is well below all other New England states. The top five most vaccinated states are the five other New England states. 

Vaccine hesitancy has slowed the state’s vaccination efforts. According to a University of New Hampshire poll released Sept. 21, the top two reasons unvaccinated Granite Staters gave for not wanting the vaccine were: 1. They don’t trust it will be safe; and 2. They don’t believe it’s effective. 

Both of those fears run contrary to large amounts of publicly available data.

Regarding vaccine safety, the state could put more resources into promoting research that has shown the vaccines to be safe. A Harvard study of nearly 2 million Israelis, for example, found that not only were vaccine complications extremely rare, but conditions commonly associated with the vaccines — such as inflammation of the heart muscle — occurred more frequently in unvaccinated individuals who were infected with COVID than in individuals who received the vaccine. 

Regarding vaccine effectiveness, the state should make the vaccination statistics listed above part of its daily COVID reporting, as well as part of any public information campaign. 

Data highlighting the effectiveness of the vaccines should be put atop the state’s COVID-19 dashboard and should be made the focus of every press release and briefing.

People are getting a lot of bad information from unreliable sources. The state needs a more rigorous effort to counter misinformation with its own reliable data. 

State officials are aware that the vaccination data would help combat myths about the vaccines, but the statistics were not built into the initial reporting system, and a general manpower shortage has delayed the state’s effort to add them, according to a spokesman for the state Department of Health and Human Services.

“We’re working on it, but it boils down to capacity,” HHS Director of Communications Jake Leon wrote in an email. “As you might imagine, we’re as busy as we’ve ever been but do not have as much access to temp staffing with the National Guard standing down.”

The public health reasons for publishing accurate information about the safety and efficacy of vaccines are obvious. There also are economic reasons. 

COVID-19’s negative economic impact is widely known, and that impact continues to push down economic forecasts. The National Association for Business Economics this week cut its economic growth forecast, largely due to fears over the prolonged presence of COVID-19. 

For those who want to see New Hampshire’s economy reach its maximum potential, a high vaccination rate for COVID-19 is vital. It’s hard to engage in free and open commerce when a potentially fatal communicable disease continues to suppress direct human interaction, reduce labor force participation and otherwise disrupt overall economic activity.  

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The unvaccinated account for 98% of N.H. COVID deaths since Feb. 1, state data show

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Since the beginning of February, unvaccinated individuals have accounted for 99% of New Hampshire’s COVID-19 cases and 98% of deaths, according to state data. The numbers indicate how extremely effective vaccines have been at fighting COVID-19 in the state.

From February 1 through June 23, the state recorded 33,703 COVID-19 cases, according to the state’s Joint Information Center, part of its Emergency Operations Center. Of those, only 349 involved people who had been fully vaccinated. That’s 1.03% of the total.

During the same period, 236 people have died from COVID-19. Only five of those were fully vaccinated. That’s 2.1% of the total.

Only 15 fully vaccinated individuals have been hospitalized for COVID-19 in New Hampshire,  according to the Joint Information Center.

Because of the way the state tracks hospitalizations, an exact percentage breakdown for hospitalized patients is not possible. The state records whether a patient was hospitalized at the time the case was reported to the state, but not whether hospitalization was required later. However, the state does track how many vaccinated people have required hospitalization for COVID-19 at any point. That number has totaled only 15. 

The Joint Information Center sets February 1 as the approximate date by which Granite Staters began to become fully vaccinated. 

A University of New Hampshire poll released Thursday reports that 25% of Granite Staters say they probably or definitely will not get the vaccine. 

Among that group, 56% say they don’t believe it will be effective at stopping them from getting COVID. 

The state data show that, contrary to this view, the vaccines are highly effective at reducing the risk of infection, serious illness and death from the coronavirus. 

The state figures also are similar to national data released last week. An Associated Press analysis of COVID-19 data from May found that 99.2% of COVID-19 deaths in the United States were among unvaccinated people. 

The difference between the 99% and 98% rates for New Hampshire cases and deaths, respectively, is not statistically significant, Beth Daly, chief of the state Bureau of Infectious Disease Control, said. (Dr. Daly’s comment was received after press time and was added to this story after publication.)

“The numbers are not really statistically different because you are comparing a small number (236) to a larger one (33,703).

“This is an issue of small numbers when you compare a denominator of tens of thousands to a denominator of just a few hundred. The confidence interval of 5 divided by 236 is from <1% to 5%, so the 1% observed in the calculation of 349 divided by 33,703 is not statistically nor meaningfully different from the proportion of deaths.

“To say it another way,  the proportion of vaccine breakthrough infections is statistically the same/no different from the proportion of vaccine breakthrough deaths. They are also not substantively different.”

 

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The COVID-19 emergency is over in New Hampshire

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When Gov. Chris Sununu announced the end of the statewide mask mandate on April 15, the seven-day rolling average of positive COVID-19 cases was 411.6, the number of positive cases in the state was 3,763, and 130 people were hospitalized with COVID-19. 

By June 8, the number of known COVID-19 cases had declined by 91% from April 15, hospitalizations had declined by 78%, and the seven-day average of new cases had declined by 88%. 

Only 28 people were hospitalized on June 8, and only 322 known cases existed in the state.

Going back to the height of the pandemic in New Hampshire, the drop is even more dramatic. 

  • The number of new infections has dropped by 97.5% from its December 3 peak.
  • The seven-day rolling average of infections has dropped by 94% from its December 8 peak.
  • Hospitalizations have dropped by 92% from their January 1 peak. 
  • The seven-day rolling average of COVID-19 deaths has dropped by 88% from the peak, which was reached on both December 26 and January 7. 

Vaccinations have changed the state of the pandemic in New Hampshire, dramatically reducing the number of hosts for the virus to infect, and providing protection to the most vulnerable populations. 

Nearly 60% of the state’s population has received at least one vaccine dose and 50.7% have been fully vaccinated, according to the state’s COVID-19 dashboard.

By any measure, the COVID-19 public health emergency in New Hampshire is over. 

Gone with it are the justifications for a state of emergency.   

When Gov. Sununu declared a state of emergency on March 13, 2020, his executive order stipulated the following concern (among others), that “if COVID-19 spreads in New Hampshire at a rate comparable to the rate of spread in other countries, the number of persons requiring medical care may exceed locally available resources, and controlling outbreaks minimizes the risk to the public, maintains the health and safety of the people of New Hampshire, and limits the spread of infection in our communities and within the healthcare delivery system.”

The declaration stated that “under RSA 4:47, III, the Governor has ‘power to make, amend, suspend and rescind necessary orders, rules and regulations’ to carry out emergency management functions in the event of a disaster beyond local control.”

State law does give the governor those powers — when there is a state of emergency. 

RSA 21-P:35 VIII defines “state of emergency” as “that condition, situation, or set of circumstances deemed to be so extremely hazardous or dangerous to life or property that it is necessary and essential to invoke, require, or utilize extraordinary measures, actions, and procedures to lessen or mitigate possible harm.”

Though COVID-19 still exists in the state, its presence no longer presents a situation so extremely dangerous that “it is necessary and essential” to invoke “extraordinary measures” to mitigate the harm. 

Further vaccinations will continue to reduce infections, hospitalizations and deaths. 

When a state of emergency ends, all of the emergency orders end with it. Many of those orders nullified regulations that were never needed and that interfered with both medical and business innovations. Rules limiting pharmacists’ scope of practice, preventing hospitals from hiring unlicensed helpers, preventing telemedicine and the practice of medicine by retired physicians, and preventing businesses from adapting by offering sidewalk dining or alcoholic beverages to go are just a few of the regulations lifted by emergency orders.

Because these and other allowances would disappear as soon as the emergency ends, the governor might have an interest in keeping the state of emergency in place a little longer until pending legislation making such emergency orders permanent is adopted. For example, a bill is pending that would let restaurants continue outdoor dining in common areas such as public sidewalks. If the emergency is lifted before that passes, restaurants would have to close those popular outdoor seating areas immediately. 

But the threat that prompted the emergency declaration last year clearly is gone, and prolonged extensions of the state of emergency no longer can be justified.

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