COVID-19: States Waive In-State Licensing Requirements for Health Care Providers

17 March 2020 Blog
Authors: Emily H. Wein Rachel B. Goodman Thomas B. Ferrante
Published To: Health Care Law Today Coronavirus Resource Center

Over the last week, the number of COVID-19 cases in the United States has spread to nearly all 50 states, with the number of confirmed cases changing by the minute. Federal, state, and local officials are evaluating options in real time to combat the virus’s spread and ease access to medical care. On Friday, the Federation of State Medical Boards (FSMB) issued a press release offering their assistance to state medical boards and health departments in verifying licenses and credentials of providers and other health care professionals who wish practice across state lines to assist those impacted by COVID-19. The FSMB’s Physician Data Center (PDC) enables states to instantly verify licensure and disciplinary history for licenses and physician assistants across the country. The FSMB views the PDC as a tool to expedite care across state lines and hopes that the state boards and health departments will utilize it as a key resource.

An even quicker path to cross state provision of medical care is the full waiver of state-specific licensure requirements. We have already seen this approach by CMS, which, for purposes of Medicare and Medicaid providers, temporarily waives requirements that out-of-state providers be licensed in the state where they are providing services when they are licensed in another state. This applies to Medicare and Medicaid, as set forth in the COVID-19 Emergency Declaration Health Care Providers Fact Sheet.

Many state medical licensure laws provide an exception for in-state licensing for physicians and other health care professionals in an emergency situation. However, an “emergency” is not always defined, and therefore, it may not be clear in some cases whether the COVID-19 pandemic would constitute an exception-qualifying emergency. Some state licensing laws are clearer and expressly allow the full waiver of in-state licensing requirements in the context of a public health emergency. To date, we have learned of at least eight states that have expressly waived certain health care provider licensing requirements or delegated such authority to the applicable regulatory agencies. These states include: Arizona, California, Florida, Louisiana, Mississippi, North Carolina, Tennessee, and Washington. Other states have alluded to such waivers in their emergency declaration for purposes of assisting with COVID-19 pandemic, but have not taken direct steps to implement such waivers (e.g., Oregon and Washington D.C.). Even in states where waivers were implemented, providers will need to read the fine print because such waivers may have limitations. For instance, in Florida, until yesterday, March 17, the current waiver only applied to free services provided under the auspices of the Red Cross or the Department of Health. However, on March 17, the Florida State Surgeon General issued a broader emergency order providing that health care professionals not licensed in Florida may provide health care services to a patient located in Florida (including via use of telehealth) for a 30-day period.

Notwithstanding, state-specific licensure waivers, coupled with licensure and telehealth waivers being implemented at the federal level, will have a significant impact on providing patients with needed care in the coming weeks and months as the COVID-19 pandemic continues to evolve.

The issuance of new or amended emergency declarations is evolving rapidly. As more states declare a public health emergency, we can expect, or at least hope, for related waivers of barriers to care.

Foley will continue to keep you apprised of relevant developments. Be sure to check Foley’s Coronavirus Resource Center for the latest insights and resources to support your business during this challenging time.

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