Many states have lifted some restrictions on clinician licensing in response to the COVID-19 pandemic, allowing hospitals to call on more available professionals to handle the increased patient load. Although the relaxed rules are welcomed in the face of the crisis, peer review and compliance leaders should proceed with some caution.
The Federation of State Medical Boards (FSMB) is tracking the changes in licensure rules and has issued statements praising the state actions. The typical process for verifying training and licensing can take weeks. FSMB says that is not acceptable in a pandemic. FSMB is offering free access to its physician database for verification of credentials and disciplinary action for the immediate future.
Physician credentialing is controlled by state laws, but the federal government has made statements suggesting it will somehow override those statutes and require healthcare professionals to practice across state lines during the pandemic, notes Matthew R. Fisher, JD, partner with Mirick O’Connell in Worcester, MA. Whether the federal government has any authority to do that remains unknown.
“It might be that for Medicare purposes they can waive the requirement, saying you must be licensed in the state in which they provide the care, but if the state still requires licensure, that is a different issue,” Fisher explains. “A number of states have waived that requirement in recognition that they are going to need all the help they can get. Others are not exactly waiving the requirement but saying they will get physicians licensed within a day. They’re promising much more than fast-tracking a license application.”
State by State Actions
The action taken by individual states varies, but all are undertaken with the intent to remove bureaucratic hurdles to putting more clinicians to work with the influx of COVID-19 patients. Pennsylvania has waived some administrative requirements. This will allow those physicians who retired in the past five years to reactivate their medical licenses at no charge.
Florida was among the first to take action, and their sweeping changes were repeated in other states. The state extended licensure renewal deadlines and allowed nursing education programs, nursing assistant training programs, and remedial courses to use supervised remote live videoconferencing for supervised clinical instruction hours required by any statute or rule.
Florida also issued waivers allowing telehealth services provided by out-of-state professionals, including physicians, nurse practitioners, licensed clinical social workers, marriage and family therapists, mental health counselors, and psychologists.
FSMB issued guidance for responding to the pandemic that included these four recommendations:
- Eligibility. “Physicians and physician assistants (PAs) receiving expedited licensure or reciprocity need to be duly licensed to practice medicine in at least one state or territory and not have been subjected to discipline by a licensing agency in any state, federal, or foreign jurisdiction, excluding any administrative actions such as non-payment of fees or failure to comply with continuing medical education requirements related to a license.”
- Verification. “Physicians or PAs seeking expedited licensure or reciprocity must be employed or under an obligation to a hospital, government agency, managed care facility, placement service, or medical group or clinical practice who will perform a verification of physician’s eligibility to provide care (licensure status and disciplinary history) with FSMB’s Physician Data Center.”
- Duration. “The ability to practice across state lines via emergency expedited licensure or reciprocity should be limited to the duration of the declaration of the state of emergency, including any extensions, within the state where the patient is located.”
- Documentation. “Any provider-patient interaction, whether in person or through telemedicine, should be documented in the patient’s medical record.”
The FSMB provides a summary of state emergency declarations and licensing waivers, along with recommendations for license portability in pandemics.
Still Obligated to Credential
Even in a crisis, peer review leaders must fulfill their obligations to ensure physicians are properly licensed before granting privileges, says Kyle A. Vasquez, JD, shareholder with Polsinelli in Chicago. “They likely have a temporary or emergency privilege category in which the process is expedited, but I’d want to make sure you validate that the physician or practitioner has an appropriate license,” Vasquez says. “It is a positive step for states to remove some of the obstacles to helping these physicians best serve patients now, but that is not a message indicating that hospitals can let their guard down completely. They still have an obligation to ensure that the professionals they privilege are competent to treat patients.”
Hospitals also must consider liability coverage for physicians and other practitioners coming in from another state, Vasquez says. The hospital’s insurance coverage may or may not provide protection in this scenario. The only way to know for sure is to ask an insurance broker.
“Institutions that accept assistance from another state or bring in practitioners from another state should just take a moment to think about the liability considerations,” Vasquez says. “Depending on how crazy things get, there are things like the Emergency Management Assistance Compact, which is a sort of mutual aid agreement among the states that lets them share resources during a crisis. It has some licensing reciprocity and liability coverage to the extent that states request assistance from another state, which is another level up from just a private practitioner going to another state to help at a particular facility.”
Fisher also advises quality professionals to be cautious in taking advantage of the relaxed licensing requirements. Keep in mind that providing safe, high-quality care must be the priority, even in a pandemic. Relaxing standards too much to get more hands into the fray could be a mistake. But as long as quality professionals are prudent and follow the guidelines, such as those provided by the FSMB, Fisher says the risk should be low.
“Compared to a normal scenario, I think the risk of any consequences or liability from these licensing moves actually is a little bit lower. Given the fluidity of the situation and the lack of clear instructions provided on a timely basis, you are not likely to be held responsible in a meaningful way if a mistake is made,” Fisher says. “My gut feeling is that for minor noncompliance issues that may come up during this period of time, I don’t think the government is going to come back after the pandemic clears and try to hammer people for trying to do the best things for patients.”
However, if a mistake is left in place for some period after the pandemic, penalties and liability could result from that oversight, Fisher warns.
“A lot of hospitals are realizing that we are in a time in which they cannot get complete verification on some issues. If that means trouble in getting payment, or if they get a minor ding from it down the road, they are willing to take that risk so they can treat their patients,” he says. “Even for some very conservative providers, there is an element of choosing to beg for forgiveness later because they can’t wait.”
The government also has made clear that reducing or waiving a copay without going through the typical analysis of financial hardship will not be seen as a kickback or beneficiary inducement, Fisher adds. Hospital leaders should watch for more developments in the credentialing arena, even if after the initial phase of the pandemic has passed, Fisher advises.
“As this situation keeps evolving, it seems the federal and state governments are going to do what’s needed to allow access to care and to make information available,” he says. “While a particular action can’t be predicted, it’s safe to say that as the need arises, action is going to be taken. The goal of all that action is to promote access to care and, hopefully, protect the health and well-being of as many people as possible.”
Aside from state and federal requirements, hospital leaders also must consider how licensing and credentialing decisions will affect requirements from The Joint Commission (TJC) or other accrediting bodies, Vasquez says. TJC posted information on its website with guidance for credentialing during a disaster.
“Making sure you are going to get paid for these services also is a key consideration. You will want to look at what your payer contracts say, how your Medicare and Medicaid enrollment is affected, looking at any federal or state Medicaid waivers that will allow payment for temporary or relocated staff,” Vasquez says.
Telehealth Rules Eased
States also eased telehealth restrictions, and the Drug Enforcement Administration allowed the prescription of certain restricted medications by telehealth.
Hospitals and other healthcare organizations will be better able to serve patients and maintain quality standards through the use of telehealth services, Fisher says. “The waivers open up access to using telehealth services at a time when healthcare organizations are struggling to provide care to all their patients, not just those directly affected by the COVID-19 virus,” Fisher says.
“The visits are going to be reimbursed the same as for an in-office visit,” Fisher continues. “For Medicare, you can qualify as having met all the normal requirements for payment, which usually requires the patient being there in front of you and doing certain tasks. Normally, you are allowed to do this only for established patients, but they’re saying they will essentially turn a blind eye, and you can do this for new patients as well.”
Polsinelli is providing an interactive map that explains the regulatory issues pertaining to telemedicine during the pandemic.