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Massachusetts Issues Further COVID-19 Updates for Providers

Massachusetts continues to issue additional directives and guidance for the health care provider community in response to COVID-19. In this post we highlight new orders by Massachusetts Governor Baker, the Massachusetts Department of Public Health (DPH), and MassHealth. Updates include expanded license reciprocity for non-physicians, independent practice of certain Advanced Practice Registered Nurses (APRNs), waiver of certain MassHealth requirements in the discharge and transfer of long-term care patients, and authorization for EOHHS to establish temporary rates, supplemental payments, or alternative rates and payment methodologies for certain providers. MassHealth has also issued FAQs for behavioral health providers utilizing telehealth to provide services.

DPH Issues Order Allowing for Reciprocity of Out-of-State Licenses for Non-Physician Health Care Providers, Including Telemedicine

On March 29, 2020, the Commissioner of the Massachusetts Department of Public Health (DPH) issued an Order, which includes terms regarding reciprocity for out-of-state health care providers, including:

registered nurses, licensed practical nurses, advanced practice registered nurses, dentists, dental hygienists, dental assistants, pharmacists, pharmacy technicians, nursing home administrators, physician assistants, respiratory therapists, perfusionists, genetic counselors, community health workers and emergency medical technicians.

Under the Order, a health care provider licensed in another state who presents verification to the corresponding Massachusetts licensing authority that their license is in good standing in the issuing state will be issued a corresponding Massachusetts license. The license will be valid during the state of emergency. All of these health care providers may provide services within the scope of practice authorized by the license in their profession, both in-person in Massachusetts and across state lines using telemedicine where appropriate, into Massachusetts.

DPH Issues Order for Long-term Care Facilities Designated to Care for Individuals with COVID-19

On March 28, 2020, the Massachusetts DPH Commissioner issued an Order applicable to long term care facilities that have been designated by DPH to care for individuals with COVID-19. The Order waives MassHealth regulations regarding transfers and discharge of long-term care facility residents (at 130 CMR 456.701 through 456.704), and the related fair hearing rules (at 130 CMR 610.015 and 610.028 through 610.032). The waiver only applies for the limited purpose of safely transferring and discharging all residents living in a long-term care facility that is intended to be used as a designated COVID-19 facility.

Additionally, the Order waives the provisions for requesting a fair hearing related to transfers and discharges, in G.L. c. 111, § 70E , and at 130 CMR 610.015 and 610.028 through 610.032, for these facilities. The Order cautions that the facilities must continue to comply with all other applicable statutes, regulations, and guidance.

The Order is effective from March 28, 2020, until the State of Emergency is terminated by the Governor, or until the Order is rescinded by DPH, whichever shall happen first. According to the Order, guidance is being issued by MassHealth setting forth the procedures to be used to transfer and discharge residents.

DPH Issues Order For Independent Practice of Advanced Practice Registered Nurses (APRNs)

On March 26, 2020, the Massachusetts DPH Commissioner issued an Order expanding the practice authority of APRNs with more than 2 years of supervised practice experience. Under the Order, APRNs in all categories recognized by the Board of Registration in Nursing and in good standing, other than certified nurse midwives, who have at least 2 years of supervised practice experience, are exempt from all requirements for physician supervision and written guidelines for prescriptive practice. Guidance issued by the Bureau of Health Professions Licensure clarifies that 2 years of professional practice as an APRN in a jurisdiction where physician supervision is not required will also meet this requirement.

For APRNs, other than certified nurse midwives, with less than 2 years of supervised practice experience, the existing requirements for physician supervision and prescriptive practice guidelines continue to apply. If, however, such APRN collaborates with a different physician for supervision of prescriptive practice during the state of emergency, a record signed by the APRN and the supervising physician specifying their consent to such supervision and the relevant dates, will meet the requirement for written guidelines. The Guidance states that the physician and APRN must both hold valid licenses in good standing, and the collaboration must be in response to the need to maximize health care provider availability during the state of emergency.

Governor Issues Order Authorizing EOHHS to Adjust Essential Provider Rates

On March 30, 2020, Massachusetts Governor Baker issued an Order authorizing the Executive Office of Health and Human Services (EOHHS) to designate certain classes of providers that EOHHS determines are (1) facing extraordinary demand due to the COVID-19 public health emergency, (2) are necessary to keep vulnerable individuals safe in their home or residences, or (3) are human services providers that have been forced to respond to respond to COVID-19 by altering modalities of service delivery in ways not contemplated by the current rate structure.

Under the Order, EOHHS is authorized to establish temporary rates, supplemental payments, new rate and payment methodologies and arrangements to reflect the new modalities through which providers are delivering their services. The temporary rates, supplemental payments, or new rate and payment methodologies will be effective on publication of Administrative Bulletins, which shall be published by EOHHS in the Massachusetts Register and on the EOHHS website, which shall be open for public comment. The Order and such temporary rates or payments established under the Order are effective for the duration of the state of emergency.

MassHealth issues FAQs for Behavioral Health Providers Using Telehealth

MassHealth has also issued Frequently Asked Questions to clarify how behavioral health providers can utilize telehealth to continue to provide services to their patients. FAQs were issued for Behavioral Health ProvidersChildren’s Behavioral Health Initiative (CBHI) Providers, and Applied Behavioral Analysis Providers.

Copyright © 2020 Robinson & Cole LLP. All rights reserved.National Law Review, Volume X, Number 91
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About this Author

Anna Gurevich Healthcare Attorney Robinson Cole Law Firm
Associate

Anna Gurevich advises hospitals, physician groups, community providers, and other health care entities on a variety of health law and general business issues. She is a member of the firm's Health Law Group. Her practice focuses on counseling health care providers in complex business arrangements and regulatory issues. Prior to joining Robinson+Cole, Anna worked at a health care law firm and a large academic medical center. 

Regulatory

Anna provides legal counsel to health care clients on a variety of...

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Melissa Lisa Thompson Healthcare Lawyer Robinson Cole Law Firm
Partner

Lisa Thompson advises companies, senior management, and their boards of directors, with a focus on the health care, life sciences and technology industries. She is a member of the firm’s Health Law Group and Data Privacy + Cybersecurity Team.  She is also an arbitrator on the Commercial panel and the Health Care panel of the American Arbitration Association.  

Health Care, Life Science and Technology Industries

Lisa represents domestic and international clients in the health care, life science and technology industries, including pharmaceutical companies, medical device manufacturers, biotechnology companies, hospital systems, academic medical centers, health information exchanges (HIEs) and technology services providers.  In addition, she has represented third party administrators, pharmacy benefit managers, health plans, laboratories, physician practices, pharmacies and retail pharmacy chains, among others in these industries.

Lisa handles a range of matters, including corporate law and contracting, government investigations and audits, clinical research law, and matters involving Institutional Review Boards (IRBs). She has extensive experience representing clients on matters involving privacy and security including HIPAA, reimbursement, Medicare and Medicaid, state and federal surveys and termination actions, managed care disputes, pharmacy and compounding laws, fraud and abuse, Stark Law, anti-kickback, and federal program exclusions.

Lisa’s life sciences experience includes U.S. Food and Drug Administration (FDA) compliance and regulatory matters, product recalls and liability claims, FDA citizen petitions and appeals, labeling review, advertising and marketing compliance, drug and medical device reimbursement, clinical research agreements, Sunshine Act compliance, and commercial contracting. Her technology sector experience includes advising on privacy and security, software licensing, data use agreements, information exchange system agreements, and regulatory requirements.

She formerly served in-house as chief counsel for an international medical device manufacturer, as general counsel for a pharmacy benefit management company, and as corporate, privacy, and research counsel for a major academic medical center. She is a co-editor and contributor for the firm’s blog, Health Law Diagnosis.

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