COVID-19 and its Impact on Healthcare Professional Licensure and Telehealth

States Move To Ease Licensing Restrictions

On January 31, 2020, United States Health and Human Services Secretary Alex Azar II declared a public health emergency for the entire United States.² The federal government’s declaration set the groundwork for governors across the country to make emergency declarations for their own states over the following weeks. Washington state was the first state to be confronted with the pandemic as it received the first case of a patient infected with the disease back in January of this year.³ After the first death due to COVID-19 in the United States was announced, Washington’s Governor Jay Inslee declared a state of emergency on February 29, 2020.⁴  The emergency carried with it broad authority for him to take certain executive action in order to protect the health and welfare of the public, such as activating the State and National Guard. The declaration also activated a Washington statute, RCW 70.15, 050, which permits healthcare practitioners licensed outside of Washington to provide medical services on a volunteer basis within the state of Washington in times of a declared emergency. The statute requires that volunteers coming from out of state meet registration requirements, including that they were in good standing in the state where they hold a license. The statute also includes protection for volunteer practitioners from civil liability, unless the practitioner’s acts or omissions constitute gross negligence or willful or wanton misconduct.⁵ The statute also seeks to prevent some practitioners with problematic work histories from serving as volunteers, since the law states that if the practitioner holds a license in more than one state and any license of that practitioner is suspended, revoked or is under an agency order limiting or restricting practice privileges, or has been voluntarily terminated under threat of sanction, that practitioner would not be eligible for liability protection for the services the practitioner provides as a volunteer practitioner in Washington.⁶

California is another state that took administrative action early, since it was one of the first states in the country to be impacted on a large scale by the COVID-19 epidemic.⁷ At the time California Governor Gavin Newsome declared a state of emergency on March 4, 2020, that state had nearly half of the COVID-19 cases in the United States.⁸ Governor Newsome’s order included within it a provision stating, “out of state 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 those medical personnel that are licensed and certified in California during the period of the state of emergency.⁹  Like Washington state, California protected out of state medical personnel from civil liability. The order, however, explicitly identified California’s Emergency Medical Services Authority (EMSA) as having to give permission for any out of state medical personnel to work in the state.¹⁰ Under EMSA’s rules, applications for a temporary license for an out of state medical professional would be accepted only if such license had been requested by a medical facility located in California, a telehealth agency contracted with a California medical facility or a staffing agency providing staffing to a California medical facility.¹¹ EMSA would then issue a written determination within two to four business days.¹² By adding these requirements, California seemingly created eligibility criteria that potentially limits the pool of out of state medical professionals allowed to obtain a temporary license.

Florida has allowed out of state medical professionals to practice in Florida, but like California has taken a more restrictive approach as to whom is allowed to take advantage of the new rules. Under Florida’s rules, only practitioners coming into the state to provide services on behalf of the American Red Cross or the Department of Health are allowed to take advantage of the licensure suspension.¹³ In contrast, Michigan has taken a much less restrictive approach than Florida. Governor Gretchen Whitmer’s Executive Order declaring a state of emergency for Michigan included explicit direction for the Department of Licensing and Regulatory Affairs (LARA) and its Bureau of Professional Licensing (BPL) to issue emergency certificates for applicants from out of state and to waive strict compliance with procedural requirements until the Order is rescinded.¹⁴ Citing Michigan law, LARA has communicated that practitioners will not be required to even apply for a license or be granted clearance by the Department to work in Michigan in times of emergency or disasters.¹⁵ Perhaps no Governor has been more outspoken than Governor Whitmer about the need for her state to attract providers from other states to come to Michigan to volunteer when she tweeted: “If you’re a medical professional anywhere in the United States, Michigan needs you” and posted a video of herself asking medical professionals to visit the state’s website to apply as volunteers.¹⁶

New York has taken a less restrictive approach to eligibility, as well. Following the model of other states, the licensing rules changed in New York when Governor Andrew Cuomo declared a state of disaster emergency on March 7, 2020.¹⁷ A subsequent Executive Order issued on March 18th formally permitted out of state physicians and other healthcare professionals who were licensed and in good standing in other states to practice in New York and reassured practitioners coming from out of state that they could practice in New York without fear of civil or criminal penalty related to the lack of registration.¹⁸ Unlike California or Florida, New York has not set limitations on who can request a temporary license and is welcoming all qualified practitioners to New York who are willing to help.

New York’s more permissive approach appears to have been a reasonable governmental response to a public health crisis considering New York, and New York City in particular, has had the most cases of infections and deaths from COVID-19 than any other state in the country to date.¹⁹ The effects of the disease have put a deep strain on its healthcare system and its healthcare workers.²⁰ In retrospect, New York’s acceptance of out of state providers to come to New York to assist its medical community may prove to have been an effective tool in its response to COVID-19.²¹  

Effect of the Emergency on Healthcare Professional Licensure Nationwide

In the months following Secretary Azar’s declaration, all 50 states and the District of Columbia have taken steps to temporarily relax their in-state medical license requirements.²² A few states, such as California and Florida, have procedural elements that make it more cumbersome for out of state practitioners to take advantage of the waiver of in-state licensure. But because of COVID-19, it is now much easier to practice in a state where one currently does not hold a license as long as that individual is in good standing in his or her home state and meets other minimum requirements. And because of the urgency of the moment, states have also sought to expedite the application process to avoid routine administrative delays.²³ In New Jersey, for example, applicants need only to fill out a simple form to verify that they are licensed and in good standing in another state and such an application will be accepted upon submission. All of the usual verifications that New Jersey typically follows before someone gets a license, such as a criminal background check, payment of licensing fees and a check for whether the applicant holds a sufficient amount of medical malpractice insurance have been waived.²⁴

Recent developments allowing out of state medical professionals to cross state lines to practice medicine or provide healthcare services have spawned other changes to the healthcare delivery system as well. To meet the demand expected by the rise in the number of patients, the majority of states now have made it easier for some of their inactive or retired medical professionals to come back to practice.²⁵ There has also been a significant change to licensing requirements for telehealth during the pandemic. For instance, 49 states have modified their requirements for telehealth in response to COVID-19, which include waiving the requirement that the provider be licensed in the state where he/she is providing medical services to a patient.²⁶ It is worth noting that Arkansas and the District of Columbia have  taken a different approach and have not gone as far as other states to amend their rules to expand telehealth. Arkansas has reserved its waiver to only those providers licensed in the states that border Arkansas: Louisiana, Mississippi, Missouri, Oklahoma, Tennessee and Texas. Additionally, out of state providers may only provide telehealth services to Arkansas patients with whom they already have an established provider-patient relationship. Washington D.C., on the other hand, allows providers from out of state to provide telehealth services in the District, but has set other limitations, such as requiring that services can only be provided to individuals at a licensed healthcare facility in D.C. and that the providers have an existing relationship with the patient.²⁷

How Long Will Changes Last?

The reality is that the life span of most of these changes will be short-lived. For example, Connecticut’s Department of Public Health Commissioner ordered on March 23rd that the temporary suspension of its licensing and certification requirements will last for 60 consecutive days. Florida’s term for its waiver is even shorter at 30 days.²⁸ Other states, like Massachusetts, Michigan and Pennsylvania, have taken more of a wait and see approach and have refrained from putting any specific end date to the temporary suspension and instead tie duration of the suspension period to when the state of emergency is declared over or when the governor’s Executive Order is rescinded.²⁹ Whatever the approach, there is no indication that these changes will become permanent.

Telehealth May Have Lasting Impact

Despite this fact, there is reason to believe that the evolution of telehealth may continue long after the immediate crisis subsides. Historically, the requirements that a provider had to be licensed in the state where he/she is providing services and the patient could not receive telehealth services at home have been some of the barriers to the utilization of telehealth across the country on a broader scale. But, as discussed, many states have responded to COVID-19 by temporarily relaxing their requirements for telehealth to drive people away from the hospital who can get satisfactory care at home via telehealth.³⁰ The rationale many states and health experts have taken is that the use of telehealth not only can be more efficient for patients but will also reduce the potential for exposure to the disease. Couple that with the uncertainty that a highly contagious disease brings to the future of traditional hospital operations and the growing comfort with technology in the population, there is reason to believe that there will be a greater desire to utilize telehealth more broadly and on a more regular basis.³¹

Another reason to be optimistic about the longevity of telehealth becoming more mainstream is that for the first time providers can get paid for their telehealth services at a fair rate. Traditionally, medical services rendered via telehealth were not reimbursed by the Centers for Medicare & Medicaid Services (CMS) or private insurance companies at the same rate as medical services provided in person. In recent months, however, CMS has made it easier for providers that accept Medicare and Medicaid patients to be reimbursed for services they provide via telehealth with CMS’ Section 1135 Blanket Waivers of the Social Security Act.³² Also, making telehealth use easier is the fact that patients and providers can utilize mainstream videoconferencing platforms, such as Zoom and Skype, from their homes.³³ Many states have also called upon private insurers to authorize that telehealth services will be covered, and many companies have followed suit and have begun to cover telehealth services at least during the pandemic.³⁴ In April, CMS Administrator Seema Verma expressed an interest in making CMS’ changes to the way telehealth services are delivered and covered permanent, but she acknowledged that to make further changes Congress must act.³⁵ In the meantime, innovative initiatives to encourage the expansion of telehealth have been underway for several years. Twenty-nine states and D.C. are part of the Interstate Medical Licensure Compact (IMLC) which streamlines the medical license application process and has made it easier for physicians who plan to practice in multiple states to get licensed in those states they wish to practice. Eligible physicians submit just one application to receive a medical license from multiple states.  Hospitals across the country are also seeking to reduce administrative burden where they can as they expand the use of telehealth and are turning to credentialing providers that offer healthcare services via telehealth by proxy.  Credentialing by proxy allows healthcare institutions receiving telehealth services from a provider to rely on the credentialing decisions made by another hospital instead of having to undergo its own independent assessment of that provider.³⁶ While no one is certain how much telehealth will be used after the pandemic, the recent experience could pave the way for wider acceptance of telehealth across the country.³⁷

Conclusion

COVID-19 continues to disrupt the lives of millions of people in the United States and abroad. In response to this health crisis, the federal government and state governments have taken extraordinary steps to remove regulatory barriers to better serve patients during the emergency.  Some of these changes, such as the waiver to the in-state medical licensure requirement, are temporary emergency measures and are likely to be scaled back when the pandemic ends. But others, such as the relaxing of restrictions on the use of telehealth, are gaining popularity and deserve consideration for being made permanent. 

1. New York Times, “The Calculus of Coronavirus Care,” Mar. 20, 2020, https://www.nytimes.com/2020/03/20/well/live/coronavirus-covid-doctor-nurse-shortage-staff.html?searchResultPosition=5; NPR “Models of Epidemic Predict Huge U.S. Death Toll; Scientists Hope for Better Outcome,” Mar. 31, 2020 https://www.npr.org/sections/coronavirus-live-updates/2020/03/31/824946036/models-of-epidemic-predict-huge-u-s-death-toll-scientists-hope-for-better-outcom.
2. HHS Secretary Azar Declares Public Health Emergency for United States for 2019 Novel Coronavirus, https://www.hhs.gov/about/news/2020/01/31/secretary-azar-declares-public-health-emergency-us-2019-novel-coronavirus.html.
3. Washington State Governor Press Release https://www.governor.wa.gov/news-media/inslee-issues-covid-19-emergency-proclamation.
4. Proclamation of the Governor of Washington https://www.governor.wa.gov/sites/default/files/20-05%20Coronavirus%20%28final%29.pdf?utm_medium=email&utm_source=govdelivery.
5. RCW 70.15.110 https://app.leg.wa.gov/RCW/default.aspx?cite=70.15.110.
6. RCW 70.15.050 https://app.leg.wa.gov/RCW/default.aspx?cite=70.15.050.
7. New York Times, “Newsome Orders All Californians to Stay Home,” Mar. 20, 2020, https://www.nytimes.com/2020/03/20/us/coronavirus-california-stay-at-home-order.html.
8. Proclamation of the Governor of California https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf,
9. Id.
10. Id.
11. Emergency Medical Services Authority, Mar. 24, 2020 Policy to Implement the Emergency Proclamation of the Governor on the Authorization of Out of State Medical Personnel, https://emsa.ca.gov/wp-content/uploads/sites/71/2020/03/MHPAuthorizationFormUpdate3.26.20.pdf.
12. Id.
13. Florida Executive Order No. 20-52 Mar. 9, 2020 https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-52.pdf.
14. Michigan Executive Order 2020-13, .https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522016--,00.html.
15. Licensing and Regulatory Affairs, Bureau of Professional Licensing Clarification, https://www.michigan.gov/documents/lara/LARA_BPL_Clarification_MI_License_Exemption_State_of_Emergency_03-16-2020_Final_683898_7.pdf.
16. Michigan Governor Gretchen Whitmer Tweet https://twitter.com/GovWhitmer/status/1244777864974733313.
17. New York Executive Order 202.5 Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency https://www.governor.ny.gov/news/no-2025-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.
18. Id.
19. New York Times, “N.Y.C. Death Toll Soars Past 10,000 in Revised Virus Count,” Apr. 24, 2020, https://www.nytimes.com/2020/04/14/nyregion/new-york-coronavirus-deaths.html?searchResultPosition=3.
20. New York Times, “13 Deaths In a Day: An “Apocalyptic” Coronavirus Surge at an N.Y.C. Hospital,” Mar. 25, 2020, https://www.nytimes.com/2020/03/25/nyregion/nyc-coronavirus-hospitals.html?searchResultPosition=3.
21. New York Times, “Volunteers Rushed to Help New York Hospitals: They Found a Bottleneck,” Apr. 8, 2020, https://www.nytimes.com/2020/04/08/nyregion/coronavirus-new-york-volunteers.html?searchResultPosition=14. There is no official tally to date on the total number of healthcare workers that have volunteered nationwide, but the New York Times reports that as of April 8, 2020, 90,000 retired and active healthcare workers signed up to volunteer in New York, including 25,000 from out of state. Despite this number, barriers to linking these workers with hospitals that need them persist due to backlogs in credentialing and training.
22. Federation of State Medical Boards, List of States Temporarily Waiving Licensing Requirements, Apr. 21, 2020, https://www.fsmb.org/siteassets/advocacy/pdf/state-emergency-declarations-licensures-requirementscovid-19.pdf.
23. Massachusetts Emergency Temporary License Form, https://www.mass.gov/doc/physician-emergency-temporary-license-application-pdf/download.
24. https://www.nj.gov/oag/newsreleases20/pr20200320a.html.       
25. Federation of State Medical Boards, List of States Expediting Licensure for Inactive/Retired Licensees in Response to COVID-19, https://www.fsmb.org/siteassets/advocacy/pdf/states-expediting-licensure-for-inactive-retired-licensees-in-response-to-covid19.pdf.
26. Federation of State Medical Boards, List of States Modifying In-State Licensure Requirements for Telehealth in Response to COVID-19, https://www.fsmb.org/siteassets/advocacy/pdf/states-waiving-licensure-requirements-for-telehealth-in-response-to-covid-19.pdf.
27. https://www.fsmb.org/siteassets/advocacy/pdf/states-waiving-licensure-requirements-for-telehealth-in-response-to-covid-19.pdf.
28. Florida DOH Emergency Order No. 20-002 Mar. 16, 2020, https://drive.google.com/file/d/1V3lpRmgkk-Syq7MdoXxyyCRSo3gWhgfR/view.
29. Massachusetts Board of Registration in Medicine, https://www.mass.gov/service-details/important-information-regarding-physician-licensure-during-the-state-of-emergency; Pennsylvania Department of State, https://www.dos.pa.gov/Documents/2020-03-18-Temporary-Licenses-Out-of-State-Practitioners.pdf; Michigan Executive Order 2020-13, .https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522016--,00.html.
30. New York Times, “Doctors and Patients Turn to Telemedicine in the Coronavirus Outbreak,” Mar. 11, 2020, https://www.nytimes.com/2020/03/11/health/telemedicine-coronavirus.html?searchResultPosition=6.
31. Boston Globe, “In a Huge Shift Because of Coronavirus, Most Doctors Now “Seeing” Patients By Phone or Video,” Apr. 7, 2020, https://www.bostonglobe.com/2020/04/07/business/huge-shift-because-coronavirus-most-doctors-now-seeing-patients-by-phone-or-video/.
32. CMS, Emergency Declaration Blanket Waivers For Healthcare Providers, https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf. On March 15, 2020 (retroactive effective date March 1, 2020), the Secretary of HHS invoked his authority, pursuant to section 1135 of the Social Security Act, to waive or modify certain requirements of the titles of the Act, at the discretion of CMS, to ensure sufficient healthcare items and services are available to meet the needs of individuals enrolled in Medicare, Medicaid and the Children Health Insurance Programs (CHIP). Blanket waivers issued by CMS are issued in times of a declared emergency and states do not have to apply for them.
33. U.S. Health and Human Services, Office for Civil Rights, FAQs on Telehealth and HIPAA during the COVID-19 nationwide public health emergency, https://www.hhs.gov/sites/default/files/telehealth-faqs-508.pdf.
34. America’s Health Insurance Plans (AHIP) Health Insurance Providers Respond to Coronavirus (COVID 19), https://www.ahip.org/health-insurance-providers-respond-to-coronavirus-covid-19/.
35. Bloomberg Law, “Medicare Agency Weighing Permanent Telehealth Rule Changes,” Apr. 15, 2020, https://news.bloomberglaw.com/health-law-and-business/medicare-agency-weighing-permanent-telehealth-rule-changes.
36. Bloomberg Law, “Doctors Hope Relaxed Telehealth Rules Continue Beyond Pandemic,” May 5, 2020;  Interstate Medical Licensure Compact website, https://www.imlcc.org/a-faster-pathway-to-physician-licensure/.
37. American Medical Association, “COVID 19 Makes Telemedicine Mainstream: Will It Stay That Way?,” Apr. 29, 2020, https://www.ama-assn.org/practice-management/digital/covid-19-makes-telemedicine-mainstream-will-it-stay-way. 

About the Author

Marcus Hughes serves as an Associate General Counsel at UMass Memorial Healthcare, Inc. located in Worcester, MA. His legal practice specializes in patient care matters where he provides legal counsel to the medical treatment teams working within the UMMHC hospital system. He also focuses on legal issues affecting physician practice and has expertise in medical peer review. Mr. Hughes lives in Needham, MA with his wife and two daughters. He may be reached at [email protected].