January 31, 2023

Volume XIII, Number 31

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January 30, 2023

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Florida’s Extension of its COVID-19 Out-of-State Provider Waiver: A Sign of the Times

Background: Issuing Florida’s Emergency Order

On March 16, 2020, Florida Surgeon General Dr. Scott Rivkees signed, stamped and finalized Emergency Order 20-002. In doing so, Florida joined what would become the vast majority of states in modifying licensure requirements for physicians in response to the Coronavirus (COVID-19) emergency.

The surgeon general’s order waived licensing requirements for out-of-state healthcare professionals, advanced life support professionals and basic life support professionals so that they could render services in Florida for the purposes of preparing for, responding to and mitigating any effect of COVID-19. In addition to waiving licensing requirements for in-person services, the order exempted out-of-state physicians, osteopathic physicians, physician assistants and advanced practice registered nurses from licensing requirements governing the provision of telehealth. The order also impacted emergency medical services training programs, physical examination requirements for physician certifications, prescription drug distribution and controlled substance prescription renewals (including medical marijuana). The order was to expire 30 days after signing—April 15, 2020.

On April 14, 2020, the Florida surgeon general, in conjunction with Secretary Mary Mayhew from the Agency for Healthcare Administration and Division Director Cassandra Pasley of the Bureau of Health Care Practitioner Regulation in the Division of Medical Quality Assurance, held a joint conference call to provide updates and answer questions from Florida healthcare providers on COVID-19. According to the call moderators, more than 600 providers dialed in. During the brief question and answer period, multiple listeners asked about the expiration and potential extension of Emergency Order 20-002. As the audibly worried callers pointed out, the order’s expiration date was the next day. Ms. Pasley’s response to each was, “We are aware of the expiration of the emergency order and it is under consideration.”

Extending the Emergency Order: An 11th Hour Decision

As of 5:01 pm on April 15, 2020, the Florida surgeon general’s office remained silent; the standard business day had come to a close and the office had yet to release any updates on the extension of the waiver set to expire that day. At 6:01 pm the Florida Department of Health Office of the Clerk stamped receipt of the Florida surgeon general’s Emergency Order 20-004, extending Emergency Order 20-002 until May 8, 2020.

While Florida’s surgeon general ultimately did extend the emergency order, the approval of the expansion came at the last minute. This process created confusion, uncertainty and frustration, and interrupted operations of providers who were left scrambling to coordinate coverage in the event the waiver was allowed to lapse. This process is also understandable, however, and unlikely to be an isolated event as the COVID-19 crisis continues.

State Responses at the Pandemic Continues

At this point in the COVID-19 emergency nearly every state has taken action to bolster the capacity and capabilities of its healthcare system. States have taken actions such as loosening cross-border licensing restrictions for healthcare professionals and modifying other rules and regulations to help protect healthcare workers, maximize their numbers and help them practice at the highest level of their experience and training. However, these actions are, and are likely to remain, a patchwork of individual state actions and are the result of decisions made within the context of each states’ particular environment. These environments have become increasingly complicated as the pandemic continues and its impact is felt unevenly and perhaps unpredictably across different states. Calls for a return to normalcy will continue to become increasingly strident as the economic impacts of the shutdown orders increase. The extension of Emergency Order 20-002 seems relatively benign in that regard as it neither shutters businesses nor limits non-urgent medical care. However, the last-minute timing of the extension suggests that even with respect to seemingly noncontroversial measures, leaders may be struggling to balance the political, economic and public health needs of their states.

State governments are the front line in the collective response to COVID-19. Their decisions will be reflective of the “facts on the ground” as perceived by the state—and, specifically, the governors and executive agencies. The decisions state leadership make will be the product of the unique times we are all facing. Some will act decisively and others will hesitate. Some decisions will be applauded and others condemned (and opinions will change as the facts on the ground develop, and, in many cases, based on the opiner’s political leanings). All will be reflective of a calculus that attempts to take into consideration all of the factors and interests of the communities within a state and how they will be perceived by various constituencies.

The extension of Florida’s out-of-state provider waiver offers but one example of how decisions that affect healthcare providers and our communities are being made in real-time. Unfortunately for the providers who are on the front lines of this pandemic, the roller coaster ride is likely to continue as political, economic and public health decisions intersect at different points across different states. Accordingly, healthcare providers must continue to monitor closely the course of changing regulatory environments and should expect both the substance and process of regulatory developments to be different from state to state.

© 2023 McDermott Will & EmeryNational Law Review, Volume X, Number 108
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About this Author

Partner

Adam Rogers represents private equity funds, strategic investors, entrepreneurs and other operators as they pursue and execute mergers and acquisitions and other complex corporate transactions driving innovation within the health care industry. He is particularly experienced in transactions in the health care services and health information technology sectors, helping clients find the right partners and deal structures to succeed in this rapidly changing and competitive space.

 

Adam is also a Florida Board Certified Specialist in Health Law and regularly...

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Dale Van Demark, health care, attorney, McDermott Will, law firm
Partner

Dale C. Van Demark is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office.  He focuses his practice on a broad array of merger, acquisition, investment, and strategic structuring transactions, with clients in the health industry. He has extensive experience in health system affiliation and restructuring transactions and regularly represents for-profit and tax-exempt clients in a variety of transactions, including strategic transactions with physicians and hospitals. He regularly advises clients regarding the opportunities...

202-756-8177
Danielle Scheer Health Lawyer McDermott Will Emery Law Firm
Associate

Danielle N. Scheer* advises clients on transactional and regulatory health law matters. She is certified in public health by the National Board of Public Health Examiners and served as a researcher at the National Institutes of Health, and as a principal investigator and interim grant manager with the Florida Department of Health’s Disability and Health Program prior to attending law school.

While in law school, Danielle served as judicial intern to the Hon. Paul C. Huck of the US District Court for the Southern District of Florida. She also served as Editor in Chief of the ...

202-756-8685
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