COVID-19 in the United States is a national health and economic crisis, and it requires an all-hands-on-deck-approach. Our system of federalism of which we are rightly proud is poorly suited to these comprehensive national efforts. The vexing situation of states competing against one another to collect suitable PPE equipment puts this into sharp relief. So, too, does the brute fact that individuals travel across state lines and, for the most part, without serious interference.
One element of this conundrum is the web of regulations operative on doctors and lawyers, regulations that can interfere with the ability of these professionals to provide adequate help to individuals in need. There are two dimensions of the problem: First, restrictions on doctors and lawyers that limit both (1) the ways in which these professionals can provide service and (2) who can provide these services, given the regulatory protections that long protected doctors and lawyers from competition by individuals who are not members of these twin guilds. Yet, the coronavirus crisis puts the access to health care and access to justice dilemmas into especially sharp relief.
Let us start with a short statement of the problem. Our balkanized system of professional regulation makes it much more difficult to match lawyer and physician demand with supply. As to the professionals themselves, the high walls of regulation mean that licensed professionals are ensured rents that they have not necessarily earned, but persist because others cannot provide services that individuals want and need. The access to the health care and justice gap are deep and broad. With respect to law specifically, we face a serious access to justice gap in civil legal services. Upwards of 80% of Americans cannot afford lawyers in civil matters. Therefore, basic needs for legal guidance and redress in areas of fundamental human needs, including housing, family law, benefits, consumer credit and bankruptcy, and so on, are going unmet.
There is good evidence that expanding the scope of representation by paraprofessionals, under carefully designed rules and standards that will protect consumers against fraud and sub-standard advice and representation, will help close the gap. And while there are interesting and important innovations underway in several American states to help close the access to justice gap by liberalizing current protectionist rules, the movement is slow and vigorously opposed by lawyer interest groups.
Moreover, state licensing requirements, beginning with the peculiarly American requirement that a lawyer be admitted to practice in a state after a bar examination and continuing through formal rules of practice, limit the ability of lawyers to move easily from one jurisdiction to another. Where a group of citizens in one state desperately needs lawyers to meet their needs in a crisis, our existing structure of rules are ill-suited to provide the match between supply and demand.
Finally, the disparate rules of professional liability for malpractice, a cherished feature of our scheme of federalism, one in which tort law is more or less state law, create disincentives for professionals to practice outside their jurisdiction even if and insofar as they are permitted to do so. The undersupply and oversupply of doctors and lawyers in certain states is at least in part due to these asymmetries in legal liability standards.
What has our government been doing about this predicament in the weeks since the coronavirus has emerged as an emergency? With respect to health care, there are have been some significant moves. One involves the change in rules governing the use of so-called telemedicine. The standards for reimbursement under Medicaid rules have been adjusted in a number of states – as many as half – in order to facilitate the ability of physicians to address patient needs without seeing them face-to-face. A handful of states, including New York, have loosened requirements significantly, and the result has been a greater availability of medical care to coronavirus patients and others. Others have undertaken more moderate changes. But, as of this writing, many states have adjusted their rules modestly or not at all. There are good reasons to believe that the federal government could not make major changes in any event, given the longstanding commitment to the notion that physician licensing, like lawyer licensing, is a state matter. So, the long and short of it as that we are beholden to the discretionary decisions of state decisionmakers.
To present, there has been little movement in this legal space. State innovations to promote access to justice through reducing barriers to service by paraprofessionals have moved no more quickly as a result of COVID-19. Pause for a moment on this point: Although we can see the coming tsunami of disparate legal claims by individuals, occasioned by the present economic aspects of the coronavirus crisis, state supreme courts have not yet issued a single regulatory change to make it easier for paraprofessionals to provide service. Nor have there been significant changes to the barriers to lawyer mobility.
What should be our approach to the problem? In the legal space, state supreme courts, working with state bar leaders and with the American Bar Association, should crash into motion and address through temporary legal changes the barriers to entry by paraprofessionals in areas of critical civil justice. The playbook exists before us, in the form of ambitious proposals for change irrespective of the coronavirus presently being considered by Utah, Arizona, and California, New Mexico (and other states at a more preliminary stage). Each state in the United States should enact these rules very soon, in a form that is appropriately informed by the special nature and scope of COVID-19. In a similar vein, states should enact temporary changes to their rules restricting lawyer mobility. The concerns about lawyers who are not adequately familiar with local rules, concerns that well-meaning folks can see as not merely masks for protectionism, are outweighed by the imperative of providing legal assistance to those in dire need. Lawyers are an imaginative bunch and we can develop short-term mechanisms to assure that out-of-state lawyers have the adequate skills and knowledge to advise and represent individuals in local courts. Desperate times call for creative solutions.
Much of the same can be tried in the area of health care, including telemedicine. States should adopt common, even if not entirely uniform, mechanisms to ensure that doctors can provide reimbursable and appropriate services to patients, both through telemedicine and in-person. Governor Andrew Cuomo of New York recently put out a call for physicians and nurses to come to his state to meet the urgent need for medical help. Yet this compassionate plea must be coupled with a coherent, constructive set of adjustments to extant regulation. Solutions to this crisis will be elusive otherwise.
As to doctors and lawyers alike, these adjustments must include modifications to professional liability rules. This is tricky stuff. Individuals in need of medical care and legal help cannot be subjected to physicians and lawyers who are ill-trained and greedy. Appropriate protections must remain to protect our citizens against negligence and neglect. And it is unrealistic and unwise to remove these critical protections. The challenges with respect to consumer protection and malpractice are serious ones. Well-intentioned regulators can and should quickly design mechanisms to help close the access to health care and justice gaps while ensuring the protection of vulnerable individuals.
More broadly, this health crisis should cause us to rethink in important ways the fundamental underpinnings of our present scheme of professional regulation, in both the health care and legal fields. Let us see the ways in which the balkanization of professional service has disserved our needs as Americans in this interconnected world. Let us see our protectionist-fueled arrangements for what they are, schemes deserving a reconfiguration that looks squarely at the data, economics, and consequences of current regulation on the availability of decent health care and justice to come up with a better way.