State health licensing boards

Summary

The State health-profession boards are appropriate governmental authorities in the plain sense of the Suspension Clause: each holds statutory power to make rules and to discipline licensees, and each used that power in 2020 and 2021 to limit how the licensed professions did business. Their instruments fall into five classes, and every class is an order limiting commerce. (1) Enforcement of the elective-care shutdowns through the license. The Texas Medical Board adopted emergency rules on March 24, 2020 (Ex. 044), April 21, 2020 (Ex. 045) and April 30, 2020 (Ex. 046) making a physician's violation of Executive Orders GA-09 and GA-15 (postponing every surgery and procedure not medically necessary) 'unprofessional and dishonorable conduct' under 22 TAC s. 190.8(2)(U), and then, from May 1, 2020, imposing force-of-law minimum standards of safe practice on every in-person encounter in Texas (universal masking within six feet, screening of every patient before every encounter, N95 and face shields for aerosol-generating procedures, a posted notice in every treatment room). The Governors' elective-procedure orders themselves are in the State files (CO-007, MN-005, OR-005, UT-003, NJ-006, KY-009, AK-007, TX-012 and others) and several of them reached veterinarians in terms (Colorado D 2020 009, Minnesota EO 20-09, Oregon EO 20-10, Utah UPHO 2020-03). (2) Restriction of commerce in named drugs. The Texas State Board of Pharmacy's emergency rule 22 TAC s. 291.30 (Mar. 20, 2020) forbade any pharmacy to dispense chloroquine or hydroxychloroquine without a written diagnosis, limited supply to fourteen days and barred refills (Exs. 016, 017, 019); Idaho's Board of Pharmacy Temporary Rule 704 did the same (Ex. ID-015). (3) Telehealth authorizations and standards that changed how every practice operated. Florida DOH Emergency Orders 20-002 (Mar. 16, 2020), 20-003 (Mar. 21) and 20-004 (Mar. 31) authorized out-of-State practitioners to treat Florida patients by telehealth, permitted controlled-substance renewals and medical-marijuana recertifications without physical examination, and permitted audio-only visits only on a four-item documentation protocol (Exs. 001-003); the extensions 20-005, 20-007, 20-009 and 20-011 carried that regime to the June 26, 2021 expiration of Executive Order 20-52 (Exs. 004, 006, 008, 010). California's DCA waived the in-person physician examination for continued physical therapy (DCA-20-09), face-to-face supervision for psychology and behavioral-health trainees (DCA-20-10, -12), in-person evaluation for optometrists (DCA-20-64) and the in-person veterinary examination (DCA-20-21), the last extended nine times to October 31, 2021 (Exs. 024-026, 029, 033, 035, 040, 042). New York's Office of the Professions fixed the telepractice standard for every Title VIII profession (Ex. 054). (4) Emergency licensure, reciprocity, renewal and continuing-education relief, which is the boards' record that the ordinary licensing regime was suspended for eighteen months: Florida's four renewal-deadline extensions (Exs. 002, 007, 011, 014, then FL-077); California's renewal-waiver chain from DCA-20-01 (Mar. 31, 2020) to DCA-21-194 (Sept. 28, 2021) and reactivation chain to DCA-21-165 (July 1, 2021) (Exs. 020, 021, 032, 038, 039, 041, 043); Illinois's temporary out-of-State and reinstatement permits for fourteen professions (Exs. 052, 053); New York's Executive Order 202 suspensions for every Title VIII profession to June 25, 2021 (Exs. 055, 056); and the parallel State instruments (AL-098, ID-017, ID-040, ID-046, MN-011, MS-010, NV-013, NV-040, NH-075, PA-091, PA-092, WI-038, WV-007, ME-005, GA-004, GA-042, GA-061, CA-012). (5) Massage-therapy closures and the pharmacy supply-side orders: the Texas Department of Licensing and Regulation's statement that every massage establishment was closed from March 20 to April 3, 2020 and that thereafter a massage therapist 'may only provide massage services if it is medically necessary' as determined by a physician or chiropractor (Ex. 051), with parallels in WY-006, IA-004, AK-009, AK-011, NJ-023 and OH-021; and the Ohio Board of Pharmacy's compilation of its March 2020 resolutions (hand-sanitizer compounding, central sterile compounding, PPE reuse, extended emergency refills, home delivery by opioid treatment programs, remote technician work), none rescinded before August 10, 2022 (Ex. 015). By quarter: 2020 Q2 was the quarter of the shutdown-enforcement rules, the drug-dispensing limits, the massage closures and the first telehealth and licensure orders, all in force on April 1, 2020; 2020 Q3 carried the Texas minimum standards of safe practice, the s. 174.5 prescribing rule (Ex. 048), Florida's June 30, 2020 extension (Ex. 010) and the California waivers; 2020 Q4 and 2021 Q1 carried Florida's reactivation, laboratory-reporting and pharmacy-vaccination orders (Exs. 011-014), California's vaccination waivers (Exs. 034, 037) and the renewal chains; 2021 Q2 ended the Florida (June 26, 2021) and New York (June 25, 2021) emergency regimes on their own terms, and California's DCA renewed its regime; 2021 Q3 was not a quarter without orders for the professions: California issued DCA-21-165, -173, -175, -193 and -194 on July 1, July 26, August 31 and September 28, 2021 (Exs. 039-043), the Ohio pharmacy resolutions remained in force, Florida's Section 1 of DOH EO 20-015 ran to December 31, 2021 (Ex. 014), Texas's Chapter 418 disaster declaration kept the 30-day emergency-refill regime alive (Ex. 018), and the State files show the Nevada Directive 046 (July 20, 2021), Georgia Executive Orders 06.30.21.02 and 09.20.21.02, Idaho's June 18, 2021 proclamation, Pennsylvania's Act 21 suspensions (to Sept. 30, 2021) and Kentucky's HJR 1 (Sept. 7, 2021) continuing the boards' emergency instruments through the quarter.