Gov. Bill Lee Enacts Significant Measures for Tennessee Providers to Combat COVID-19 Crisis

Chambliss, Bahner & Stophel, P.C.

Last evening, Gov. Bill Lee issued Executive Order No. 15 which, among other critical actions, sets forth a number of significant health care-related provisions summarized below for the benefit of our health care audience:

  • Waiver of Licensure Requirements The relevant statutory licensing provisions governing almost all health care providers and facilities licensed by the State of Tennessee (including physicians, nurses, dentists, psychologists, optometrists, and veterinarians, and facilities like hospitals, nursing homes, ASTCs, hospices, ODCs, etc.) are waived at the Commissioner’s discretion to allow out of state health care providers to engage in their profession in connection with the medical response to COVID-19. The requisite form for such waiver will be found on the Department of Health’s Health Professional Boards page [https://www.tn.gov/health/health-program-areas/health-professional-boards.html].
  • Suspension of Maintenance Prescription Requirements Pharmacists may dispense up to a 90-day supply of maintenance prescriptions without proper authorization as necessary to respond to the spread of COVID-19.
  • Localized Treatment Licensure requirements with respect to provision of home health services are suspended as necessary to allow health care professionals (licensed in their profession) to provide localized treatment of patients in temporary residence.
  • Nurse Practitioner and Physician Assistant Prescribing Requirements regarding a nurse practitioner’s or physician assistant’s ability to write prescriptions are relieved with respect to supervising physician chart review and site visits, and also certain notification requirements to Board of Nursing/Committee on Physician Assistants regarding dispensary formularies and name of supervising physician.
  • Suspension of Licensure Renewal Requirements Renewal requirements for certain licensed providers whose licenses are set to expire between March 12, 2020, and the date this Order terminates are extended for three months, during which time such providers can continue to practice without fine or penalty.
  • Pharmacy Technicians (Home Practice) Rules governing pharmacy technicians are suspended as necessary to allow them to utilize computer-based processing of prescriptions at alternative locations, including their residence (subject to HIPAA security requirements).  No other laws pertaining to pharmacy practice sites, storage of drugs, recordkeeping, or dispensing processes are waived.
  • Temporary Medical Lab Privileges Commissioner of Health is granted discretion to allow individuals to work as medical laboratory technologists, with respect to coronavirus testing only, with a license while employed by a licensed medical lab and working under supervision of a medical lab director; provided, that such individual is a postdoctoral fellow in a biological science field like pathology, microbiology, chemistry, molecular diagnostics, or immunology. The requisite form is found here: https://www.tn.gov/health/health-program-areas/health-professional-boards.html.
  • Suspension of CON Laws for Hospitals CON requirements with respects to licensed hospital beds or provision of hospital or diagnostic services at any location are temporarily waived to allow hospitals to treat COVID-19 patients.
  • Alternate Site Testing Rules with respect to alternate site testing for medical labs are suspended to allow for COVID-19 testing without prior approval by Medical Laboratory Board, provided that labs notify Board of such alternative sites.
  • Temporary Structures Construction requirements with respect to building of health facilities are suspended to allow for construction of temporary facilities in response to COVID-19, provided that there will be safety inspections as necessary.
  • Telemedicine Coverage A number of key telemedicine-related provisions are authorized, including:
    • Health insurance carriers are to provide coverage for clinically appropriate, medically necessary covered services via telemedicine to all providers regardless of network status or originating site. 
    • Providers are urged to follow new guidance from CMS (see https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet) regarding equipment and everyday communications technologies that may be used for provision of telemedicine. 
    • Carriers are further urged not to impose prior authorization requirements on medically necessary treatment related to COVID-19 delivered by in-network providers via telemedicine. 
    • Also, out of state health care professionals authorized pursuant to this Order to temporarily practice in Tennessee are permitted to engage in telemedicine with respect to Tennessee patients if scope of practice of applicable professional license would authorize professional to diagnose and treat humans.
    • Statutory restrictions on telehealth with respect to pain management clinics and chronic nonmalignant pain treatment are suspended. 

The above will remain in effect through May 18, 2020, at which point the suspension of laws and rules outlined above will cease and be of no further effect.

As you can see, these are extraordinary measures by the governor’s office to meet this unprecedented crisis. We will continue to monitor the evolution of Tennessee’s health care laws and rules as the state government and the entire health care community work to combat the COVID-19 threat.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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