[co-authors: Kimberly Hughes Gillespie, Erin Whaley]*
Many hospitals and health care systems are turning to out-of-state practitioners to quickly ramp up staffing to the levels necessary to respond to the COVID-19 pandemic. Utilization of health care practitioners who are not currently licensed in the hospital or health care system’s state, however, presents a host of credentialing and privileging issues. This article discusses immediate and practical considerations to address when engaging out-of-state health care practitioners to respond to the COVID-19 pandemic, including (1) emergency/disaster and/or temporary privileging of out-of-state practitioners to address immediate quality of care issues; (2) reimbursement and payment issues for both the Centers for Medicare & Medicaid Services (CMS) and private payors; and (3) preparing for the post-crisis period by maintaining good documentation and planning for the relinquishment of temporary/disaster privileges.
Emergency/Disaster and/or Temporary Privileging to Address Staffing Shortages
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Check your hospital’s emergency operations/preparedness plan.
The initial sources of guidance for emergency staffing should be found in hospital policies and procedures and medical staff bylaws, rules and regulations, as well as the hospital’s emergency operations plan. These procedures should address how to utilize volunteers in an emergency. CMS requires that participating hospitals maintain a “comprehensive emergency preparedness program” under its Conditions of Participation. This plan must address “[t]he use of volunteers in an emergency and other emergency staffing strategies, including the process and role for integration of State and Federally designated health care professionals to address surge needs during an emergency.” See 42 C.F.R. § 482.15.
Hospitals that are accredited by the Joint Commission can refer to their standards for issuing temporary privileges and disaster privileges, both of which should be addressed in the medical staff bylaws. Temporary privileges are justified in situations, such as the COVID-19 pandemic, where the volume of patients exceeds the level that can be cared for by providers who are currently privileged. Disaster privileges are a kind of temporary privilege that the hospital may grant once the hospital’s emergency preparedness plan has been activated.
The Joint Commission emergency management standards relating to disaster privileging are available on its website. Note that the Joint Commission permits, in lieu of primary source verification of licensure (which may be challenging at the moment), “Confirmation by a licensed independent practitioner currently privileged by the hospital or by a staff member with personal knowledge of the volunteer practitioner’s ability to act as a licensed independent practitioner during a disaster.”
The Joint Commission has also answered FAQs related to temporary privileging.
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Consult your state’s licensing laws, which likely have been relaxed in light of the COVID-19 crisis.
Nearly every state has modified licensure and renewal requirements as a result of the need for additional medical personnel to address a public health emergency. For example, in Virginia, for the purpose of assisting with the COVID-19 response, “a license issued to a health care practitioner by another state, and in good standing with such state, shall be deemed to be an active Board of Medicine license issued by the Commonwealth to provide health care or professional services as a health care practitioner of the same type for which such license is issued in another state” for the purpose of assisting with the COVID-19 response. In Pennsylvania, the governor has suspended several “administrative requirements,” including letters of good standing, criminal history record checks, and National Practitioner Data Bank reports, to allow the Department of State to grant temporary licenses on an expedited basis to out-of-state practitioners.
Note that these waivers may impose reporting or other requirements on hospitals. For example, Virginia requires that hospitals submit information regarding out-of-state health care practitioners to the Board of Medicine “within a reasonable time” of the health care provider arriving at the hospital. In California, medical facilities utilizing out-of-state personnel must submit a “Request for Temporary Recognition of Out-Of-State Medical Personnel During a State of Emergency” form so that the state can review and make a determination regarding whether to approve the out-of-state practitioner. And in Pennsylvania, the suspension of various administrative requirements applies only after the applicant has demonstrated that he or she is licensed by, and in good standing with, his or her home state; Pennsylvania hospitals utilizing out-of-state physicians still need to obtain and maintain documentation of licensing and good standing.
For information on relaxation of licensing and regulatory requirements as it relates to the practice of telehealth, see our recent article “Some States Loosen Licensing Requirements for Telehealth Providers During COVID-19 Pandemic.”
For the latest information on the relaxation of licensure requirements in light of COVID-19, see the Federation of State Medical Boards’ COVID-19 page.
Reimbursement Issues
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Ensure that out-of-state providers are eligible for a waiver of Medicare/Medicaid licensure requirements.
CMS has issued a long list of blanket waivers intended to facilitate the provision of medical care in response to the COVID-19 public health emergency, including a temporary waiver of the requirement for Medicare reimbursement that out-of-state practitioners be licensed in the state where they are providing services when they are licensed in another state. The reimbursement waiver applies when the out-of-state practitioner meets the following four conditions: (1) the practitioner is enrolled in the Medicare program; (2) the practitioner must possess a valid license to practice in the state that relates to his or her Medicare enrollment; (3) the practitioner is furnishing services — whether in person or via telehealth — in a state in which the emergency is occurring in order to contribute to COVID-19 relief efforts in his or her professional capacity; and (4) the practitioner is not affirmatively excluded from practice in the state or any other state.
Note that this action by CMS is a reimbursement waiver but does not waive state or local licensing requirements or any requirement issued by a state or local authority related to waiver of a state’s licensure requirements. In other words, an out-of-state practitioner must be licensed to practice by the state he or she is seeking to practice in, whether under traditional or relaxed licensing requirements. It is also important to note that the CMS waiver does not affect hospital credentialing, which is governed by temporary or disaster privileging as discussed above.
For a complete explanation of the waivers CMS has issued in response to the COVID-19 emergency, see the fact sheet prepared by CMS.
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Consider whether care provided by out-of-state practitioners will be covered by private payors.
Private payors are also responding to the public health crisis by waiving or relaxing credentialing policies and procedures in order to assist health care providers in broadening access to care during the COVID-19 pandemic. For example, Horizon Blue Cross Blue Shield of New Jersey has adopted temporary credentialing changes, including acceptance of temporary New Jersey licenses and provisional credentialing of up to 180 days, both of which apply to practitioners who are licensed outside of Horizon’s coverage area and are providing either telemedicine or in-person medical services in response to the pandemic. Blue Cross and Blue Shield of Illinois similarly has announced temporary credentialing policies, which include acceptance of practitioners who are licensed to practice in any state, subject to the state’s emergency provider licensure laws, including temporary licenses. Blue Cross and Blue Shield of Illinois will also accept expired licenses that have been expired for less than six months and cannot be updated due to the crisis. Simplified credentialing policies and procedures vary by insurer; therefore it is important to confirm that out-of-state practitioners working at your facility will be covered by any applicable private payor.
Preparing for the Post-COVID-19 Period
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Protect your organization by maintaining proper documentation and developing procedures to transition back to standing credentialing procedures.
Obtaining and maintaining documentation for out-of-state practitioners — such as current photo identification that includes professional identification and current license to practice now — can avoid issues in the months to come.
Looking ahead to post-COVID-19 operations, it will be important to determine how to rescind the privileges of out-of-state practitioners once the health crisis has ended. This end point will likely be dictated by the same state provisions that provided for relaxed licensing, as well as government reimbursement and private payor policies. For example, many relaxed licensing provisions, such as those in New Jersey and California, are set to expire at the end of the public health emergency declarations related to COVID-19. The CMS blanket waivers are in effect through the end of the emergency declaration, and private payors have taken a similar approach. For example, Blue Cross and Blue Shield of Illinois has announced that its temporary credentialing will be effective through the end of the state-declared health emergency. Similarly, Highmark Blue Shield has announced that all applications that were temporarily approved during the public health emergency will be considered for full credentials once the emergency has ended. Hospitals should pay close attention to the processes outlined in medical staff bylaws, rules and regulations, and any related policies, which should include a mechanism for removing providers from the medical staff once the emergency has passed. Good process and documentation will be key on both sides — bringing on additional providers and removing them once the disaster has ended. Strictly following policy and documenting appropriately is vital, even in these extraordinary times. Being disciplined in this regard will help when the COVID-19 emergency subsides and it is time to remove these practitioners from the medical staff and terminate their privileges. It also may be helpful if the hospital has to address a future claim of negligent credentialing or medical malpractice. Consider contacting your insurance broker regarding medical malpractice coverage for out-of-state practitioners.
Telemedicine
Conclusion
As rules and regulations continue to change in light of the challenges many of our health care providers and health systems are facing during this unprecedented public health crisis, we will continue to monitor and provide updates as new information becomes available. Hospitals should stay attuned to new developments and seek advice as needed to ensure compliance with all relevant laws, regulations, policies and procedures, to manage both the immediate provision of care needs during the current crisis now, as well as enforcement and civil litigation risk later.
* Troutman Sanders
