On January 31, 2020, the Secretary of Health and Human Services, Alex Azar, declared the Coronavirus (COVID-19) Public Health Emergency under the Public Health Service Act.
On March 13, 2020, President Trump declared a national emergency under the National Emergencies Act (50 U.S.C. 1621) providing access to federal relief money in addition to 136 statutory powers. The national emergency continues for one year unless extended by the President.
The authorities granted to both the President and the Secretary under each law provide for broad administrative powers and flexibilities to protect public health. The declaration of both a public health emergency under Section 319 of the Public Health Service Act and a National Emergency under the National Emergencies Act allows the Secretary of HHS broad authority under section 1135 of the Social Security Act to waive certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements, including:
- Conditions of participation or other certification requirements
- Program participation and similar requirements
- Preapproval requirements
- Requirements that physicians and other health care professionals be licensed in the State in which they are providing services, so long as they have equivalent licensing in another State (this waiver is for purposes of Medicare, Medicaid, and CHIP reimbursement only – state law governs whether a non-Federal provider is authorized to provide services in the state without state licensure)
- Emergency Medical Treatment and Labor Act (EMTALA)
- Stark self-referral sanctions
- Performance deadlines and timetables may be adjusted (but not waived).
- Limitations on payment for health care items and services furnished to Medicare Advantage enrollees by non-network providers
While Federal emergency declarations may affect compliance with federal legal and programmatic requirements, federal declarations generally do not change state legislative and regulatory requirements and state law can only be preempted if it conflicts with federal law.
Clinician Licensure During Emergencies
Generally, clinicians need to be licensed in the state where the patient they are seeing is located. States determine whether and under what circumstances a healthcare provider is authorized to provide services in the state, including whether services can be provided during an emergency without a license from that state.
Almost every state has already declared a state emergency in response to COVID-19. The scope of authority granted to state officials are unique to each state and in many cases allow for the waiver and modification of health care provider licensure requirements. As of March 14, 2020, 47 states, 6 territories, and the District of Columbia have declared a state of emergency or taken formal executive action in response to the COVID-19 outbreak. In at least 9 of those states (Arizona, California, Florida, Mississippi, North Carolina, Oregon, Tennessee, Texas, and Washington), the emergency declaration specifically addressed waiving medical licensure.
In addition to action states may take in their emergency declarations, there are existing Compacts between states that can facilitate practice across state lines.
The authority for licensing reciprocity is held at the state level – but can be triggered under the Emergency Management Assistance Compact (EMAC). Under the EMAC compact, to which all 50 states are signatories, any state declaring an emergency may request the aid of other members of the compact. Under the compact, there is explicit state-approved temporary licensure reciprocity, upon request of a state during an emergency.
ARTICLE V: LICENSE AND PERMITS
Whenever any person holds a license, certificate, or other permit issued by any state party to the compact evidencing the meeting of qualifications for professional, mechanical, or other skills, and when such assistance is requested by the receiving party state, such person shall be deemed licensed, certified, or permitted by the state requesting assistance to render aid involving such skill to meet a declared emergency or disaster, subject to such limitations and conditions as the Governor of the requesting state may prescribe by executive order or otherwise.
The IMLCC is an agreement between 29 states, the District of Columbia and the Territory of Guam, where physicians are licensed by 43 different Medical and Osteopathic Boards. Under this agreement, licensed physicians can qualify to practice medicine across state lines within the Compact if they meet the agreed upon eligibility requirements. Approximately 80% of physicians meet the criteria for licensure through the IMLC.
The NLC allows for RNs and LPN/VNs to have one multistate license, with the ability to practice in person or via telehealth, in both their home state and other NLC states. There are currently 32 member states in the NLC and nurses from those states who hold a multistate license can respond to provide care across state lines.
We encourage members to monitor states in which they are delivering care and to contact the appropriate state authorities for any needed clarity. We also expect resources to be made available from the Federation of State Medical Boards, the National Association of Boards of Pharmacy, and the National Council of State Boards of Nursing.
Medicare and Medicaid Licensing Requirements
Under section 1135 of the SSA, the Secretary may waive Medicare, Medicaid, or CHIP requirements that physicians and other health care professionals hold licenses in the State in which they provide services. On March 13, 2020, CMS issued several blanket section 1135 waivers including a waiver on licensure:
Temporarily waive requirements that out-of-state providers be licensed in the state where they are providing services when they are licensed in another state. This applies to Medicare and Medicaid.
This waives Medicare and Medicaid requirements that a provider be licensed in the state where the patient is, but does not preempt states’ licensing requirements, described above.
Congressional Action & the Medicare Telehealth Waiver
At the urging of the ATA and other telehealth advocates, Congress included a provision in the Coronavirus Preparedness and Response Supplemental Appropriation Act, 2020, which became law March 6, 2020, that provides the Secretary with the authority to waive the existing Medicare telehealth originating site restrictions during the coronavirus public health emergency.
However, Congress imposed eligibility restrictions including the requirement that a provider had to have provided an item or service to the beneficiary and received payment under traditional FFS Medicare within the last 3 years. Not only is the requirement that the provider have seen the patient in person in the past 3 years unnecessary and limiting, it creates a new administrative burden on providers before they administer care. After ATA, alongside other health care stakeholders expressed concerns, Congress included a technical fix in the second supplemental appropriations bill, the Families First Coronavirus Response Act, which passed the House on March 14, 2020 and is expected to be considered by the Senate this week. The technical fix maintains the requirement that the provider has seen the patient for a Medicare-covered service in the previous three years, but does not require the provider to have been paid by Medicare for that service. That reduces the administrative barrier of checking for a claims payment and eliminates the problem of having a seen a patient who wasn’t eligible for Medicare in the previous three years, but still limits the usefulness of the provision by not paying providers to see new patients via telehealth during this emergency.
Following President Trump’s national emergency declaration, the Secretary can now exercise the new waiver authority and will begin work with CMS to make a determination on the scope of the sec 1135 waiver(s), invoke the waiver, and issue guidance. ATA has urged the Secretary Azar and Administrator Verma to do so as soon as possible.
Medicare Advantage Flexibilities
As of January 1, 2020, Medicare Advantage plans may include telehealth services in their base bids (rather than as a supplemental service), without being subject to geographic restrictions.
On March 10, 2020, CMS posted guidance to Medicare Advantage plans regarding flexibilities during the COVID-19 emergency, including two related to telehealth. First, plans may waive or reduce cost-sharing for services such as telehealth services (provided that they waive them uniformly across beneficiaries). Second, the guidance states that CMS will exercise enforcement discretion during the outbreak, allowing plans to provide Part B services via telehealth even if they didn’t request to do so in their Plan Year 2020 bid.
CMS also consulted with the HHS Office of Inspector General (OIG) to determine that if a plan expands access to telehealth under this flexibility, “such additional coverage would satisfy the safe harbor to the Federal anti-kickback statute”.
High-Deductible Health Plans
On March 11 ,2020, the IRS issued guidance on HDHP and expenses related to COVID-19, advising that high-deductible health plans (HDHPs) can pay for 2019 Novel Coronavirus (COVID-19)-related testing and treatment, without jeopardizing their status. This also means that an individual with an HDHP that covers these costs may continue to contribute to a health savings account (HSA)