Three Prescriptions for Better Health Care

Wednesday, March 18, 2015
Matthew D. Mitchell

The Supreme Court recently heard oral arguments in King v. Burwell, another case involving the Affordable Care Act (a.k.a. "Obamacare"). If the Court decides that the law's words mean what they say, then federal subsidies for individuals will be available only in states that have established insurance exchanges. For those who live in the 36+ states that have chosen not to set up their own exchanges, this presents a problem.

First the ACA makes insurance more costly by imposing mandates on insurers. Then it requires everyone to buy this artificially expensive product. Many believe the subsidies were an attempt to entice states to set up their own exchanges -- if they did so, they could shift some of this artificially high cost from state consumers to federal taxpayers (never mind that they are one and the same). But if the Court rules against the government, consumers in many states will face higher insurance costs without the benefit of taxpayer support. This means that it will fall to state leaders to find new ways to reduce the costs of health care.

Liberals, conservative, and libertarians agree on the goals: Patients should have access to innovative, low-cost, and high-quality care. And though another round of federal reform may be years off, a number of state-level changes can move us closer to a competitive and patient-centered health-care market, making it possible to realize these shared aspirations.

In a new paper published by the Mercatus Center at George Mason University, we identify three areas for reform: States can eliminate certificate-of-need laws, liberalize scope-of-practice regulations, and end the regulatory barriers to telemedicine.

Certificate-of-need (CON) laws, found in 35 states and the District of Columbia, require individuals looking to open a new health-care facility or expand an existing facility to first obtain permission from a regulator. To do so, they must prove to the regulator that their community "needs" this additional service or facility. Although CON laws were originally intended to minimize costs to Medicare and Medicaid by limiting duplicative procedures, the balance of evidence suggests that these laws fail to contain costs and, by restraining competition, may actually increase costs.

The CON approval process is ripe for anti-competitive manipulation. It allows incumbent providers to testify against their would-be competitors, and statutes often direct regulators to explicitly protect the established facilities. CON laws create formidable barriers to entry. In Virginia, one doctor spent five years and $175,000 navigating the CON approval process trying to add a second MRI machine to his office. If CON laws increase costs and are prone to protect entrenched interests, why do they continue?

One reason is that many well-meaning supporters believe CON laws encourage additional care for the needy. But the evidence suggests this isn't true. Recent research by George Mason University economist Thomas Stratmann and Ph.D. student Jacob Russ finds that CON laws are associated with fewer hospital beds and MRI services, and they don't correlate with increased access to care for the needy. Allowing providers to enter and expand their operations without first asking the permission of their competitors' friends would be a first step toward a more competitive and patient-centered health-care market.

States can also reform scope-of-practice laws. These regulations, which differ from state to state, limit the tasks nurses, nurse practitioners, physicians' assistants, and many other health-care providers may undertake when caring for patients. They are said to protect consumers, but evidence suggests they protect certain medical-care providers from competition and fail to improve health quality. Limits on scope-of-practice constrict the supply of health care and contribute to the shortage of primary-care providers in the United States.

A recent National Bureau of Economic Research study analyzed the effects of scope-of-practice regulations on a variety of dimensions including wages, employment, costs, and the quality of medical services. The authors found that restrictive state regulations on nurse practitioners increase the cost of a well-child exam by about 16 percent, and have no discernible effect on outcomes such as infant mortality or malpractice premiums. These findings are consistent with those of previous research. A state that liberalizes its scope-of-practice regulations can expect its citizens to pay lower costs for better access to health care.

A third promising reform would be to remove the regulatory barriers to telemedicine. Telemedicine is an emerging innovation that uses technology to remotely diagnose, treat, and monitor patients. It promises to allow patients better access to high-quality care with greater efficiency. While technology has changed the way many other industries -- from retail to air travel -- deliver their services, our colleague Robert Graboyes shows that such convenient and cost-saving changes largely bypass health care.

Telemedicine may change this, but many states have policies standing in the way. Some, for example, require doctors to perform in-person examinations before writing prescriptions; others won't allow a diagnosis without an in-person visit; and still others discriminate against out-of-state providers. States should remove these barriers and allow the benefits of telemedicine to expand the options for delivering care.

Health-care policy should be about patient needs, not about politics. While federal reform is hopelessly politicized, states have a unique opportunity to make meaningful change to the way health care is provided. We recommend states focus on repealing certificate-of-need laws, easing restrictions on scope-of-practice, and removing barriers to telemedicine. Seizing this opportunity for change will allow competitive forces to bring innovation to health care and put patients first.

Occupational Licensing Is Short-Sighted, Hurts Low-Income Workers

Tuesday, February 17, 2015
Edward J. Timmons

The latest reading of the labor market in the United States from the Bureau of Labor Statistics brings to mind a veteran prize fighter trying to pull himself up from the mat after a dizzying flurry of blows. An easy way to help the U.S. labor market regain its championship form would be a broad reconsideration of occupational licensing. We, along with countless others, applaud the president for including $15 million in his recent budget to study the rationale for occupational licensing in the United States.

The scope of workers directly affected by U.S. occupational licensing laws has steadily increased over the last several decades. Today, nearly 30 percent of the workforce is required to obtain a license to work at their current place of employment. Occupational licensing laws make it illegal to work in a profession without first meeting specific requirements (such as a specific degree or passing a test).

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Bringing the Effects of Occupational Licensing into Focus: Optician Licensing in the United States

February 17, 2015

The scope and scale of occupational licensing in the United States continues to grow. The optician profession provides a typical example: 21 states currently require opticians to be licensed, each according to different rules. Although advocates of licensing suggest that it is important for public safety, licensing legislation mainly tends to benefit practitioners by reducing competition.

In a new study for the Mercatus Center at George Mason University, scholars Anna Mills and Edward J. Timmons examine differences in licensing requirements state-to-state and over time to explore the effect that optician licensing has on practitioner earnings.

The study finds that stricter optician licensing laws and laws that have been in place for longer periods of time result in higher optician earnings. On the other hand, there is little evidence that licensing has affected vision insurance or optician malpractice insurance premiums. Optician licensing increases optician earnings with no measurable benefit to consumers. 


Study Design
This is the first study to estimate the effects of occupational licensing on optician earnings. The study pooled a cross section from 1940 to 2012 to estimate the effects of licensing on an occupation that has been licensed in some states since the early 20th century. Few studies have attempted to capture the effect of licensing on quality. This study uses insurance policy premiums to proxy for quality.

Higher Earnings for Opticians
Difference-in-difference estimates of the licensure earnings premium accruing to opticians suggest that licensed opticians receive 0.3–0.5 percent in extra income multiplied by the number of years the relevant licensing statute has been in effect. The results also suggest that opticians earn approximately 3 percent more per exam required for licensing and 2–3 percent more for every 100 hours of education and experience required.

  • Opticians working in Texas (a state that enacted certification but not licensing) did not bene-fit from a similar increase in earnings. In fact, opticians in Texas generally do not obtain a certification.
  • Opticians working in New York and Rhode Island earned more after the states stiffened licensing requirements.
  • Opticians working in Alaska earned less after licensing requirements were relaxed.

No Observable Increase in Quality for Consumers
Comparing vision insurance and optician malpractice insurance rates across licensed and unli-censed states shows little evidence that optician licensing has improved the quality of optician ser¬vices delivered to consumers.


The unemployment level remains elevated in the United States, but occupational licensing restricts entry into numerous professions. Many licensing laws do not clearly increase public safety and ought to be reexamined by policymakers. Optician licensing is one good candidate. Optician licensing laws potentially raise the cost of vision care without showing any observable change in quality. They restrict competition and increase salaries for opticians, but provide no measurable benefit to consumers.

Three Prescriptions for States to Improve Health Care

January 15, 2015

Well before the advent of the Affordable Care Act (ACA), the US health care system lacked many of the basic elements of consumer choice, price transparency, and efficiency enjoyed by consumers in other industries. The ACA, unfortunately, did not change this.

Most health care transactions take place without any reference to prices. Indeed, a large share of hospitals cannot even tell patients the price of a standard procedure.1 The market is hamstrung by a third-party payer model that divorces the consumer from choice. Moreover, it is limited by a patchwork of constraints that favor risk-averse insiders over innovative disruptors who might transform the system to the consumers’ benefit.2 The result is a system that lacks the sort of dynamic competition that permits other industries to discover innovative ways to improve quality, reduce prices, and enhance the user experience.3

In this paper we discuss three ways that states can benefit patients by making their health care markets more competitive: they can abolish certificate-of-need laws, liberalize scope-of-practice regulations, and remove barriers to telemedicine.

A certificate-of-need (CON) law requires anyone wanting to open or expand a health care facility to first obtain approval from a regulator by proving that the community “needs” the new or expanded service. As shown in figure 1, 35 states and the District of Columbia currently have CON laws.4 Though they vary from state to state, these laws cover everything from the construction of new hospitals to the purchase of new equipment. North Carolina’s CON law, for example, “prohibits health care providers from acquiring, replacing, or adding to their facilities and equipment, except in specified circumstances, without the prior approval of the Department of Health and Human Services.”5

As is often the case with health care policy, CON laws were devised as a means to overcome the unintended consequences of other government policies. Because Medicare and Medicaid reimburse providers on a fee-for-service basis, it was thought that these laws would prevent health care providers from ordering unnecessary and duplicative procedures.6 By this same logic, Congress enacted legislation in 1975 conditioning federal funds on the enactment of CON laws.7 Every state but Louisiana responded to the incentive and enacted a CON statute. Early studies, however, found that these laws failed to control costs.8 So Congress reversed course, repealing the federal incentive in 1986.9 Since then 14 states have repealed their CON laws.10

Providers were quick to realize that CON laws, which were ostensibly enacted to restrain costs, also restrained competition. In 1968, the American Hospital Association began campaigning for state enactment of CON laws.11 This is consistent with the public choice theory of regulation, which predicts that producers will favor—and often obtain—regulations that shield them from competition.12 During the CON approval process, incumbent providers are often invited to testify against their would-be competitors, and in many cases regulators have an explicit mandate to guard the profits of these incumbents.13 The approval process can be long and expensive. In Virginia, for example, Dr. Mark Monteferrante spent five years and $175,000 navigating the CON process to add a second MRI machine in his office.14

Today, CON laws are often defended as a means to promote care for the needy. Advocates argue that states offer providers this monopoly protection on the condition that the providers use some of their above-normal profits to supply care to those in need. Recent research, however, suggests that CON laws do not work this way.15 Thomas Stratmann and Jacob Russ examine data from 50 states and the District of Columbia and find that, while CON laws are associated with fewer hospital beds, MRI services, CT scanners, and colonoscopies, they do not correlate with any greater access to care among the needy.

One of the first steps a state can take to make its health care market more competitive—that is, more responsive to the needs of practitioners and consumers—is to repeal its CON law.


Scope-of-practice laws are state-specific mandates that determine what tasks nurses, nurse practitioners, physicians’ assistants, and other health care providers may undertake in the course of caring for patients.16 As shown in figure 2, scope-of-practice regulations vary in stringency across states. New Mexico and Vermont, for example, are among the 18 states that allow nurse practitioners (NPs) to operate fully autonomous practices, meaning that they may be primary care providers and may diagnose, treat, and independently prescribe drugs.17 Other states, such as Virginia and North Carolina, only permit restricted practices, allowing NPs to be primary care providers but only under physician supervision.18 By restraining the supply of medical services, scope-of-practice laws have contributed to the shortage in primary care givers, a problem which is particularly acute in rural areas.19

The variability in scope-of-practice laws from state to state allows researchers to estimate the effects of these regulations. One recent study analyzes how these regulations affect wages, employment, costs, and the quality of certain types of medical services.20 The authors find that more stringent regulations limit the hours worked by NPs and that restricting NPs’ ability to write a prescription increases the cost of a well-child medical exam by about $16 (or 16 percent). Furthermore, the authors find that these regulations seem to have no discernable effect on outcomes such as infant mortality or malpractice premiums.21 The authors do find that scope-of-practice laws reduce NP wages while boosting physician wages.22 On balance, it seems that these regulations privilege certain providers under the guise of consumer protection.23

By allowing non-physician providers greater autonomy of practice, states could dramatically reduce the cost of care for their residents and increase access to care, especially for low-income families. If all states allowed NPs to practice autonomously without physician oversight, the total cost savings is estimated to be about $810 million.24

Telemedicine, or telehealth, is the remote diagnosis, treatment, and monitoring of patients by means of telecommunications technology. This form of delivery, which utilizes both current and developing mobile medical technologies, promises patients greater access, improved quality, and enhanced efficiency of care. Indeed, it may be the sort of disruptive technology that has ushered in dramatically lower costs in industries such as retail and air travel but has so far eluded the health care industry.25

Consider in-person dermatological consultations. The typical patient waits 29 days for an appointment.26 And on average these visits cost Medicare around $88.27 New smartphone and computer applications, however, permit patients to snap high-definition pictures of worrisome moles or bothersome rashes and within 24 hours they can get a diagnosis for $40 (or less if covered under a health network membership).28

This technology allows doctors to fill idle time by serving patients thousands of miles away. It can also allow patients in underserved (often rural) communities to access some of the best medical professionals in the country. Doctors and nurse practitioners could diagnose minor illnesses and treat patients with the help of already available mobile-compatible stethoscopes, otoscopes, thermometers, blood pressure monitors, and eye exam diagnostic tools.29

There are a number of mobile-compatible devices that either are on the market or are currently under FDA review that can run disposable diagnostic tests for strep A, Influenza A and B, adenovirus, and RSV using only saliva or a prick of the finger; devices that can test urine for preeclampsia, gestational diabetes, kidney failure, and urinary tract infections; and even ingestible biomedical sensors that can monitor medication adherence.30 Many of these devices are expensive now but experience shows that when patients internalize real prices, entrepreneurs find ways to lower prices. The price of a home drug test in 2015, for example, is one sixth the price it was in 2003.31 One can imagine a world in which it is common for families to purchase basic mobile medical kits for under $100 (or when they subscribe to a mobile diagnostic service).

Despite its promise, a number of policies stand in the way of this technology’s adoption. As shown in figure 3, 41 states and the District of Columbia have laws requiring doctors to perform in-person examinations before they may write prescriptions.32 Other states bar doctors from even making a diagnosis without seeing the patient in the office.33 And others discriminate against out-of-state providers.34

Policymakers should recognize that technological innovation has outpaced these 20th-century regulations and scrap those restrictions that stand in the way of competitive, quality telemedicine.

They should also acknowledge that differing scope-of practice regulations make it difficult for caregivers to operate in more than one state. These disparate regulations might be reconciled (and ideally eased) through an interstate compact similar to the driver’s license agreement, which would allow medical professionals to see patients in all participating states after going through a single licensure process.

The goals of health policy are not in contention. Nearly everyone would like to see a system in which patients enjoy access to efficient, innovative, low-cost, and high-quality care. With federal health care policy hopelessly mired in politics, states have an opportunity to make their health care markets significantly more competitive by repealing CON laws, easing scope-of-practice restrictions, and removing the barriers to telemedicine. A more competitive market is not simply a ticket to lower prices. Dynamic competition permits providers to be more nimble and innovative—better able to adjust to changing needs and to incorporate innovative technologies that improve lives.35