Tennessee Governor Issues Executive Order No. 68 Increasing Health Care Resources and Capacity

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On December 4, 2020, in further response to the public health emergency, Tennessee Governor Bill Lee issued Executive Order 68 https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee67.pdf.  Executive Order 68 provides several tools necessary to increase health care resources and capacity such as providing targeted regulatory flexibility and the suspension of certain laws and rules. More specifically, Executive Order 68 does the following:

  • Amends the prior Executive Order regarding expansion of facilities without a Certificate of Need (“CON”). 
  • Permits home health agencies to treat COVID-19 patients in counties for which the agencies do not currently hold a CON.
  • Relieves capacity strain on bedside care and support as a result of staffing shortages.
    • Medical professionals licensed under Title 63 and Title 68, Chapter 140 may perform tasks outside of their licensed scope of practice, provided, such tasks are performed in a hospital and pursuant to a detailed facility-specific COVID-19 related plan of delegation. The delegation plan must be submitted by the facility’s chief medical officer and approved by the Commissioner of Health or the Commissioner’s designee. Note: The prior Executive Order permitted this only in the acute setting or emergency departments of hospitals.
  • Pre-license, graduate or doctoral level audiology and speech language pathology professional may provide telehealth services.
    • Individuals who have completed or are actively enrolled in a program to obtain a master’s degree or doctoral degree in the field of audiology or speech language pathology may practice without a license and use telemedicine services. Individuals who utilize this option must be supervised at all times.
  • Allows discretion to utilize National Guard and State Guard members in connection with certain health care and emergency services operations.
    • National Guard and State Guard members are authorized to:
      •  perform authorized diagnostic testing for COVID-19 in health care settings,
      • perform authorized nursing and other functions, and
      • operate public or privately owned, permitted ambulance service vehicles with a licensed service.
  •  Allows regulatory flexibility for ambulance transport services.
    • Level 3 transports may be staffed with one AEMT and Level 4 transports may be staffed with one EMT, provided there is an ambulance operator in addition to the AEMT or EMT who satisfies the ambulance driver requirements of Tenn. Comp. R. & Reg. 1200-12-01-.10.
  • Allows nursing tasks to be delegated to certified medical assistants under the supervision of a registered nurse.
    • Registered nurses, licensed to practice in Tennessee or working on a multi-state privilege to practice, may delegate tasks to medical assistants including, but not limited to, the administration of COVID-19 vaccinations. All tasks will need to take place under the supervision of the registered nurse and are required to have been ordered and authorized by a Tennessee licensed practitioner with prescriptive authority.
  • Allows flexibility with behavioral health inpatient psychiatric, residential, and crisis care staffing.
    • Health care professionals licensed under Title 63 or Title 68, Chapter 140 may perform tasks outside of their licensed scope or practice if such tasks are performed in an inpatient psychiatric facility, in a behavioral health residential facility, or by a behavioral health crisis services provider. The performed tasks will need to be pursuant to a detailed facility or provider-specific, COVID-19 related plan of delegation that has been submitted by the facility’s or provider’s chief medical or executive officer and jointly approved by the Commissioner of Mental Health and Substance Abuse Services and the Commissioner of Health.
  • Encourages the expansion of hospital-level care in home programs and telemedicine access.
    • Health insurance carriers are urged to provide equivalent inpatient reimbursement to all providers for the delivery of clinically appropriate, medically necessary covered services via programs irrespective of network status or originating site.
    • Health insurance carriers are urged not to impose additional prior authorization requirements on medically necessary treatment related to COVID-19 delivered via programs in which patients receive hospital-level care at home.
    • Providers are urged to follow the new CMS guidance regarding equipment and everyday communication technologies that may be used for the provision of telemedicine services.

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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