Following President Donald Trump’s national emergency declaration on March 13, the US Department of Health and Human Services has finalized licensure waivers that would permit physicians participating in Federal health care programs to receive payment for telemedicine services in states where they do not hold a license during the coronavirus (COVID-19) emergency. The waivers were published on March 15, with a retroactive effect back to March 1.
Please access the full text of the waivers and modification of requirements under Section 1135 of the Social Security Act.
It is important to recognize that the federal medical licensure waivers are limited in scope to conditions of participation and payment for Federal health care programs such as Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP). These waivers alone do not waive the requirement for physicians and other healthcare providers to maintain licensure in states where they are practicing a licensed profession, including via telehealth. State law continues to govern whether a provider is authorized to provide professional services in that state without holding an active license from that state’s medical board. However, as discussed below, several states have eased restrictions on this as well.
The Health and Human Services (HHS) secretary is authorized to waive certain Medicare, Medicaid, and CHIP program requirements and conditions of participation under Section 1135 of the Social Security Act once the president declares an emergency through the Stafford Act or National Emergency Act, and the secretary declares a public health emergency (PHE). HHS Secretary Alex M. Azar issued a PHE on January 31, 2020, and President Trump declared an emergency on March 13, 2020. As a result, the Centers for Medicare & Medicaid Services (CMS) has activated blanket waivers that take effect retroactively to March 1, 2020. Specifically, CMS has waived the requirement that physicians and other healthcare professionals be licensed in the state in which they are providing services, provided that they have equivalent licensing in another state (and are not affirmatively barred from practice in that state or any state a part of which is included in the emergency area).
The national emergency declaration also enables CMS to grant state and territorial Medicaid agencies a wider range of flexibilities under Section 1135 waivers. States and territories are now encouraged to assess their needs and request these available flexibilities, which are outlined in the Medicaid and CHIP Disaster Response Toolkit. Examples of flexibilities available to states under Section 1135 waivers include the ability to temporarily suspend certain provider enrollment and revalidation requirements to promote access to care, allow providers to provide care in alternative settings, waive prior authorization requirements, and temporarily suspend certain preadmission and annual screenings for nursing home residents.
The Section 1135 waivers and modifications were issued at 6:00 pm EST on March 15, 2020, but will have retroactive effect to March 1, 2020, nationwide, and continue through the period described in Section 1135(e) of the Social Security Act.
State medical boards are continuing to implement emergency changes to licensure requirements. As of the time of the publication of this post, 10 states and the District of Columbia have issued some form of licensure waiver related to the practice of medicine in the state. We expect this list to grow rapidly in the coming days following the issuance of the national emergency declaration. A summary of state medical licensure waivers to date is provided below:
|
State |
Scope of Waiver |
|
Arizona |
Allows ADHS to waive licensing requirements to provide healthcare officials with assistance in delivering services during times of heightened demand. |
|
California |
Any out-of-state personnel, including medical personnel, entering California to assist in preparation for, responding to, mitigating the effects of, and recovering from COVID-19 shall be permitted to provide services in the same manner as prescribed in Government Code Section 179.5 |
|
Florida |
The state of emergency waives licensure requirements for out-of-state healthcare professionals who render services in Florida related to COVID-19, as long as they do so for the American Red Cross or the Florida Department of Health (DOH). |
|
Louisiana |
State of Louisiana Public Health Emergency Declaration – COVID-19 The declaration invokes RS 29:760, the Louisiana Health Emergency Powers Act, which says, in part “(9) Provide for the temporary appointment, licensing or credentialing of health care providers who are willing to assist in responding to the public health emergency.” |
|
Mississippi |
The Mississippi State Board of Medical Licensure Proclamation states that “until action is taken by the Governor to lift the state of emergency, out-of-state physicians may utilize telemedicine when treating patients in Mississippi without the necessity of securing a license to practice medicine in the state, provided the out-of-state physician holds an unrestricted license to practice medicine in the state in which the physician practices and currently is not the subject of an investigation or disciplinary proceeding and so advises the Board. Mississippi State Board of Medical Licensure Proclamation Emergency License Attestation Form |
|
North Carolina |
Temporarily waives North Carolina licensure requirements for healthcare and behavioral healthcare personnel who are licensed in another state, territory, or the District of Columbia to provide healthcare services within the emergency area. |
|
Oregon |
State officials noted the declaration will allow the health authority to bring in emergency volunteer healthcare professionals to add service, especially in rural communities. |
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Tennessee |
The provisions of Tennessee Code Annotated, Section 68-11-201(20), have been suspended to the extent necessary to allow healthcare professionals who would otherwise be subject to licensing requirements to provide localized treatment of patients in temporary residences. |
|
Texas |
Pursuant to Title 22, Chapter 172.20 and 172.21 of the Texas Administrative Code, the Texas Medical Board will allow out-of-state physicians to obtain a Texas limited emergency license or hospital-to-hospital credentialing through the period that encompasses the Texas disaster declaration. TMB Responding to Gov. Abbott's State Disaster Declaration Governor Abbott Fast-Tracks Licensing For Out-Of-State Medical Professionals COVID-19 Disaster Response - Licensing for Out-of-State Providers COVID-19 Disaster Response - Retired Physicians Returning to Active Status |
|
Washington |
Washington Medical Commission - Emergency Volunteer Health Practitioner Act Announcement In-state practitioners can become volunteers in two ways: 1. Via RCW chapter 70.15 by registering and completing the Emergency Volunteer Health Practitioners Application.
2. Via registering with their local Medical Reserve Corps
Out-of-state practitioners may: Become volunteers via RCW chapter 70.15 by registering and completing the Emergency Volunteer Health Practitioners Application
Out of state MDs and DOs that would like an expedited Washington license and to volunteer may use the Interstate Medical License Compact and become registered under RCW 70.15. At this time, we are limiting our request for healthcare practitioners to US jurisdictions due to technical issues. We may expand the call to international jurisdictions in the future as needs arise, and if that remains available to us based on federal restrictions. |
|
Washington, DC |
Government of the District of Columbia – Declaration of Public Emergency: Coronavirus (COVID-19) DC Official Code 7-2304.01 is referenced, which says, in part “Appoint licensed health care providers, either from the District of Columbia or from other jurisdictions, as temporary agents of the District of Columbia… (A) In effect solely for the duration of the public health emergency; (B) In effect solely for the purpose of assisting the District of Columbia in implementing the provisions of the District of Columbia response plan” |
It is important to note that these waivers function in very different ways. While some states have made a full waiver of licensing requirements for out-of-state providers, others have either introduced an expedited licensing process or permit services only through certain agencies. For instance, Florida’s waiver only applies when services are provided through the American Red Cross or the Florida Department of Health. Before a provider begins furnishing telehealth services in these states without a license, it is important to verify the current scope of the applicable waiver.
The Interstate Medical Licensure Compact (IMLC) could be utilized to further expedite out-of-state licensure during the COVID-19 emergency. The IMLC is an agreement between 29 states, the District of Columbia, and the Territory of Guam, involving 43 different Medical and Osteopathic Boards. Under the IMLC, licensed physicians can qualify to practice medicine across state lines within the compact if they meet the agreed upon eligibility requirements. Approximately 80% of physicians meet the criteria for licensure through the IMLC. Note that the IMLC does not create a multistate license, but rather aligns and expedites licensing requirements for IMLC compact states.
We will continue to provide updates as the situation evolves in the coming days but physicians and other licensed healthcare professionals should continue to exercise caution to ensure that they maintain licensure in the states in which they are actively licensed to practice or utilize individual state-based waivers/expedited out-of-state licensing pathways if they intend to engage in practice beyond those states where they hold an existing license (including via telehealth).
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Washington DC
Michele Buenafe
Kathleen McDermott
Scott Memmott
Albert Shay
Howard Young
Jacob Harper
Houston
Greg Etzel
Scott McBride
Sydney Reed
Boston
Mark Stein