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COVID-19: States Waive In-State Licensing Requirements for Health Care Providers

Over the last week, the number of COVID-19 cases in the United States has spread to nearly all 50 states, with the number of confirmed cases changing by the minute. Federal, state, and local officials are evaluating options in real time to combat the virus’s spread and ease access to medical care. On Friday, the Federation of State Medical Boards (FSMB) issued a press release offering their assistance to state medical boards and health departments in verifying licenses and credentials of providers and other health care professionals who wish practice across state lines to assist those impacted by COVID-19. The FSMB’s Physician Data Center (PDC) enables states to instantly verify licensure and disciplinary history for licenses and physician assistants across the country. The FSMB views the PDC as a tool to expedite care across state lines and hopes that the state boards and health departments will utilize it as a key resource.

An even quicker path to cross state provision of medical care is the full waiver of state-specific licensure requirements. We have already seen this approach by CMS, which, for purposes of Medicare and Medicaid providers, temporarily waives 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, as set forth in the COVID-19 Emergency Declaration Health Care Providers Fact Sheet.

Many state medical licensure laws provide an exception for in-state licensing for physicians and other health care professionals in an emergency situation. However, an “emergency” is not always defined, and therefore, it may not be clear in some cases whether the COVID-19 pandemic would constitute an exception-qualifying emergency. Some state licensing laws are clearer and expressly allow the full waiver of in-state licensing requirements in the context of a public health emergency. To date, we have learned of at least eight states that have expressly waived certain health care provider licensing requirements or delegated such authority to the applicable regulatory agencies. These states include: ArizonaCaliforniaFloridaLouisianaMississippiNorth CarolinaTennessee, and Washington. Other states have alluded to such waivers in their emergency declaration for purposes of assisting with COVID-19 pandemic, but have not taken direct steps to implement such waivers (e.g., Oregon and Washington D.C.). Even in states where waivers were implemented, providers will need to read the fine print because such waivers may have limitations. For instance, in Florida, the current waiver only applies to free services provided under the auspices of the Red Cross or the Department of Health.

Notwithstanding, state-specific licensure waivers, coupled with licensure and telehealth waivers being implemented at the federal level, will have a significant impact on providing patients with needed care in the coming weeks and months as the COVID-19 pandemic continues to evolve.

The issuance of new or amended emergency declarations is evolving rapidly. As more states declare a public health emergency, we can expect, or at least hope, for related waivers of barriers to care.

© 2020 Foley & Lardner LLP

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Emily Wein Health Care Lawyer
Of Counsel

Emily H. Wein is of counsel and a health care lawyer with Foley & Lardner LLP, and member of the firm’s national Telemedicine & Digital Health Industry Team. Emily understands and identifies with the business and strategic goals of virtual care and digital health companies. She delivers practical legal guidance molded to accomplish each individual client’s unique operational goals. Emily works with a diverse bench of organizations – including large interdisciplinary hospital systems, skilled nursing facilities, multi-state clinical practices, and fast-moving entrepreneurs. Emily’s...

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Rachel Goodman Health Care Attorney Foley Lardner Tampa
Senior Counsel

Rachel B. Goodman is a senior counsel with Foley & Lardner LLP, and a member of the firm’s Health Care Practice Group and national Telemedicine & Digital Health Industry Team. Hardworking, creative and dedicated to her clients, Rachel’s practice focuses on representing a wide array of clients nationally with transactional and related regulatory issues in the health care industry including health care providers, physician groups, hospitals, health systems, pharmacies, laboratories, home health agencies, skilled nursing facilities, assisted living facilities, rehabilitation agencies, durable medical equipment suppliers, pharmaceutical companies, health care IT companies, health care industry vendors, investors, entrepreneurs, and startup businesses. She also focuses on matters involving telemedicine, digital health, remote patient monitoring, and virtual care.

Rachel has considerable experience in matters involving fraud and abuse compliance, including self-referral and ant-kickback laws, corporate compliance programs, Medicare and Medicaid reimbursement, self-disclosures and overpayments, health information privacy, telehealth, health care marketing, licensing, change of ownership, enrollment, and corporate and transactional matters involving mergers, acquisitions, due diligence, joint ventures, and other strategic affiliations. She has implemented compliance programs and policies, as well as HIPAA policies and procedures for health care entities of all sizes.

Rachel also works regularly with investors, entrepreneurs, and startup businesses in the health care arena and she advises on a variety of developing legal areas, including creating and implementing scalable telemedicine programs.

While in law school, Rachel was a research assistant, the Assistant Editor for the Stetson Law Review, and a Judicial Intern for the Honorable Mark A. Pizzo, United States Magistrate Judge for the Middle District of Florida.

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Thomas B. Ferrante, Foley, Healthcare Regulatory Lawyer, Transactional Matters Attorney
Senior Counsel

Thomas (T.J.) Ferrante is an associate and health care lawyer with Foley & Lardner LLP, where he focuses his practice on a wide range of transactional and related regulatory issues for health industry clients, including for-profit and not-for-profit hospitals and health systems, multi-specialty physician practice groups, and long-term care providers. Mr. Ferrante has experience with a variety of transactions, including mergers and acquisitions, joint ventures, strategic affiliations, obtaining and maintaining tax-exemption, employment contracts and leases, and other...

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