How to Provide Emergency Credentialing and Privileging for Healthcare Staff to Prepare for Surge in COVID-19 Patients

Nossaman LLP

As the coronavirus pandemic has reached the phase where non-pharmaceutical interventions are being implemented daily (social distancing, school and work closures, travel restrictions, etc.), hospitals and medical professionals are bracing for a surge in cases requiring medical and hospital care. Hospitals and other care facilities will be pulling out all the stops to meet the demands created by this pandemic. This may include credentialing and privileging all available additional medical professionals to care for those who are evaluated and treated in the hospital and hospital-controlled settings.

To the extent other worldwide pandemics in the recent past – Ebola, H1N1 and the avian flu – led to the development of emergency plans for such situations, these plans hopefully can be helpful to coordinating an effective response to this crisis.

The President’s Declaration of a National Emergency on March 13, 2020 included the granting of Emergency Authority to the Secretary of Health and Human Services under section 1135 of the Social Security Act, temporarily waiving or modifying certain requirements of the Medicare and Medicaid programs as well as HIPAA. So that the Secretary can encourage care to be provided to the extent possible, these emergency powers include the power to waive “Conditions of Participation or other certification requirements” and to waive requirements that “physicians and other health care professionals be licensed in the State in which they provide such services, if they have equivalent licensing in another State and are not affirmatively excluded from practice in that State…” A key element of the declaration is the statement that the purpose of the declaration is designed to ensure to the maximum extent feasible that “health care providers …that furnish such items and services in good faith, but that are unable to comply with one or more requirements … may be reimbursed for such items and services and exempted from sanctions for such noncompliance, absent any determination of fraud or abuse.”

California Governor Newsom proclaimed a State of Emergency for the State of California. As part of that proclamation, the Governor ordered that “any out-of-state personnel, including … medical personnel, entering California to assist in preparing 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 [Multi-state Emergency Management Assistance Compact], with respect to licensing and certification. Permission for any such individual rendering service is subject to the approval of the Director of the Emergency Medical Services Authority for medical personnel…” Additionally, the Medical Board of California is authorized by the Health Care Professional Disaster Response Act in California Business & Professions Code 920-922, during times of national disasters, to re-activate the licenses of physicians whose licenses expired within the past five years using an expedited method based upon the filing of an application form, submission of fingerprints, and proof of completion of continuing medical education credits during the period when the physician was not licensed in California.

The Joint Commission Emergency Management Standards, updated in 2016, outline the requirements a hospital must follow in the event of an emergency or disaster.

The Joint Commission defines an emergency as “an unexpected or sudden event that significantly disrupts the organization’s ability to provide care, or the environment of care itself, or that results in a sudden, significantly changed or increased demand for the organization’s services. Emergencies can be either human-made… or natural (for example… an infectious disease outbreak such as Ebola, Zika, influenza), or a combination of both, and they exist on a continuum of severity.”

Disasters are defined by the Joint Commission as a “type of emergency that, due to its complexity, scope, or duration, threatens the organization’s capabilities and requires outside assistance to sustain patient care, safety, or security functions.”

In an emergency, a hospital is required to communicate, in writing, with each of its licensed independent practitioners (“LIP”) regarding the LIP’s role(s) in responding to the emergency and to whom the LIP reports. (TJC Standard EM.02.02.07, Element of Performance 8; CMS Condition of Participation 42 CFR § 482.15(d)(1)(i)).

A hospital may grant temporary privileges to LIP’s in an emergency using its standard process. Alternatively, a hospital may grant privileges to volunteer LIP’s “[w]hen the hospital activates its Emergency Operations Plan in response to a disaster and the immediate needs of its patients cannot be met...” (TJC Standard EM.02.02.13, Introduction, Element of Performance 1) Under these circumstances, a hospital “may use a modified credentialing and privileging process on a case-by-case basis for eligible volunteer practitioners” if it is unable to perform its usual process because of the disaster.

A hospital’s medical staff bylaws are required to identify the individuals who are responsible for granting disaster privileges to volunteer LIP’s. (TJC Standard EM.02.02.13, Element of Performance 2) Typically those individuals are the hospital’s Chief Executive Officer or designee or the Chief of Staff or designee.

Disaster privileges may only be granted upon the presentation of the volunteer LIP’s proof of current licensure, privileging at another health care organization, participation as a member of a Disaster Medical Assistance Team (DMAT) or other state or federal response organization, or governmental grant of authority. As disastrous times call for flexibility, initial disaster privileges can be based upon 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. (TJC Standard EM.02.02.13, Element of Performance 5). Primary source verification is to happen within 72 hours of when the LIP volunteer presents himself or herself to the hospital, if feasible, and the medical staff must have a mechanism, documented in writing, to oversee the professional performance of the volunteer LIP’s granted disaster privileges.

Preparation is acutely necessary when facing the challenges that lie ahead.

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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