How Public Records Have Revealed the Antiquated State of Pennsylvania’s Health Care Laws   

Thomas Kimbrell 

Transparency laws like the FOIA and state open records and meetings laws are championed as tools to check government overreach, expose government waste, and hold government officials accountable.  Indeed, these are important functions of transparency measures.  Beyond transparency laws’ more sensational use cases, public records can also be used to highlight the inefficiencies of antiquated laws and inform improvements.  

In early 2020, as the first wave of the COVID-19 pandemic was sweeping across the nation, states quickly found their health care systems overwhelmed.  With the sudden surge of patients, health care facilities were short on beds, equipment, and medical practitioners.  

In response, Pennsylvania Governor Tom Wolf, along with every other state, declared a public health emergency and took measures to ramp up medical services. Among these, Governor Wolf authorized health care practitioners licensed in other states to provide telehealth services to Pennsylvanians without obtaining a Pennsylvania license. Out-of-state practitioners in good standing in their state of practice could submit their licensure information to the appropriate Pennsylvania health licensing board to treat patients in the Keystone State. 

This new flexibility greatly expanded access to health care, but when the public health emergency ended, the emergency waivers expired.  For over two years, Pennsylvanians enjoyed expanded health care access and established intimate patient-provider relationships with out-of-state health care practitioners via telemedicine.  These patients lost access to their providers, which raises the question: just how much telehealth care did Pennsylvanians lose? 

Pennsylvania’s Right to Know (“RTK”) Law provides a means to find the answer.  The Pennsylvania chapter of Americans for Prosperity Foundation (“AFPF”) filed a RTK Law request with the Pennsylvania Department of State for records reflecting medical practitioners who sought emergency waivers to treat patients in Pennsylvania. 

Record production is ongoing, but the early findings are stunning. AFPF estimates that approximately 900speech-language pathologists and 650occupational therapists from other states sought to treat Pennsylvanians during the public health emergency.  Records reflecting about ¼ of the out-of-state psychologists who received waivers total nearly 200.  Partial productions from the State Board of Nursing that include only nurses whose last name starts with the letters A–C show over 1,000 out-of-state nurses received emergency waivers.  The total number of additional nurses Pennsylvanians had access to during the pandemic is surely staggering.  

Faced with a nursing shortage exacerbated by the pandemic, lawmakers moved to permanently expand licensure.  In July 2021, the General Assembly passed a bill making Pennsylvania a party to the Nurse Licensure Compact, an agreement between 41 states and territories that allows nurses licensed through the compact to provide in-person and telehealth care in any member state. 

But Pennsylvania’s health care shortages extend beyond nursing.  The Keystone State has 15 health licensing boards covering dentistry, medicine, nursing, pharmacy, psychology, and more.  AFPF’s initial findings clearly show there is a latent supply of medical providers ready and willing to serve patients in Pennsylvania.  

It is a common maxim in public policy that the law lags behind technology.  Modern technology is changing how we communicate, travel, learn, work, and play.  Outdated licensure laws prevent people from accessing the benefits that modern technology has to offer in health care.  Through Pennsylvania’s RTK Law, the public can gauge the impact of these antiquated laws and spur their elected representatives to update them. 

When government executives invoke emergency powers, they often increase the breadth or scope of their authority, and watchdogs leverage transparency laws to check them when necessary.  In this case, however, Governor Wolf used emergency powers to temporarily suspend restrictive laws and regulations, and records AFPF made public through Pennsylvania’s RTK Law reveal them to be outdated and unnecessarily exclusive.  

Thomas Kimbrell is an analyst on the Legal and Judicial Policy Team at Americans for Prosperity Foundation