By David Balfour, Cindy Rodriguez and Rebecca Hoyes

Law360 (April 6, 2020, 3:16 PM EDT) --

David Balfour

Rebecca Hoyes

As the coronavirus pandemic has reached the phase where nonpharmaceutical interventions are being implemented daily (social distancing, school and work closures, travel restrictions, shelter in place orders, etc.), hospitals and medical professionals are bracing for a surge in cases requiring medical and hospital care.

Hospitals and other care facilities will be pulling out all the stops to meet the demands created by this pandemic. For many, this includes credentialing and privileging all available additional medical professionals to care for those who are evaluated and treated in the hospital and hospital-controlled settings.

To the extent other worldwide pandemics in the recent past — Ebola, H1N1 and the avian flu — led to the development of emergency plans for such situations, these plans hopefully can be helpful to coordinating an effective response to this crisis. Both federal and state authorities have been taking measures to activate these emergency efforts in recognition of the urgent need for additional medical personnel to respond to the coronavirus pandemic.

The president's declaration of a national emergency on March 13 included the granting of emergency authority to the U.S. Secretary of Health and Human Services under Section 1135 of the Social Security Act, temporarily waiving or modifying certain requirements of the Medicare and Medicaid programs as well as the Health Insurance Portability and Accountability Act.

So that the secretary can encourage care to be provided to the extent possible, these emergency powers include the power to waive conditions of participation or other certification requirements and to waive requirements that "physicians and other health care professionals be licensed in the State in which they provide such services, if they have equivalent licensing in another State and are not affirmatively excluded from practice in that State."

A key element of the declaration is the statement that the purpose of the declaration is designed to ensure to the maximum extent feasible that "health care providers … that furnish such items and services in good faith, but that are unable to comply with one or more requirements … may be reimbursed for such items and services and exempted from sanctions for such noncompliance, absent any determination of fraud or abuse."

Many states have also issued orders allowing out-of-state medical professionals to come to their state to provide much needed medical services. For example, in California, Gov. Gavin Newsom proclaimed a state of emergency permitting:

Any out-of-state personnel, including … medical personnel, entering California to assist in preparing for, responding to, mitigating the effects of, and recovering from COVID-19 ... to provide services in the same manner as prescribed in Government Code section 179.5 [Multi-state Emergency Management Assistance Compact], with respect to licensing and certification. Permission for any such individual rendering service is subject to the approval of the Director of the Emergency Medical Services Authority for medical personnel.

Some states are also relying on previously enacted legislation which streamlines the process for formerly licensed professionals to return to practice. For instance, the Health Care Professional Disaster Response Act in California Business & Professions Code 920-922 authorizes the Medical Board of California during times of national disasters to reactivate the licenses of physicians whose licenses expired within the past five years using an expedited method based upon the filing of an application form, submission of fingerprints and proof of completion of continuing medical education credits during the period when the physician was not licensed in California.

On March 30, Gov. Newsom also announced a major initiative, California Health Corps, to expand California's health care workforce and recruit health care professionals to address the COVID-19 surge. 

While having more licensees available to work in the state is imperative, it can often take weeks or months for a physician to go through the typical credentialing and privileging process at a hospital. Thus, many hospitals are relying more heavily on granting temporary or telehealth privileges, or their expedited credentialing process. Hospitals that have activated their emergency operations plan may also choose to grant disaster privileges.

Updated in 2016, the Joint Commission Emergency Management Standards describe the requirements a hospital accredited by the Joint Commission must follow in the event of an emergency or disaster, including how hospitals grant and monitor disaster privileges.

The Joint Commission defines an emergency as:

An unexpected or sudden event that significantly disrupts the organization's ability to provide care, or the environment of care itself, or that results in a sudden, significantly changed or increased demand for the organization's services. Emergencies can be either human-made … or natural (for example … an infectious disease outbreak such as Ebola, Zika, influenza), or a combination of both, and they exist on a continuum of severity.

Disasters are defined by the Joint Commission as a "type of emergency that, due to its complexity, scope, or duration, threatens the organization's capabilities and requires outside assistance to sustain patient care, safety, or security functions."

In an emergency, a hospital is required to communicate, in writing, with each of its licensed independent practitioners, or LIPs, regarding the LIP's role(s) in responding to the emergency and to whom the LIP reports.[1]

A hospital may grant privileges to volunteer LIPs "[w]hen the hospital activates its Emergency Operations Plan in response to a disaster and the immediate needs of its patients cannot be met."[2]

Under these circumstances, a hospital "may use a modified credentialing and privileging process on a case-by-case basis for eligible volunteer practitioners" if it is unable to perform its usual process because of the disaster.

A hospital's medical staff bylaws are required to identify the individuals who are responsible for granting disaster privileges to volunteer LIP's.[3] Typically those individuals are the hospital's chief executive officer, the chief of staff or their respective designees.

Disaster privileges may only be granted upon the presentation of the volunteer LIP's proof of current licensure, privileging at another health care organization, participation as a member of a disaster medical assistance team or other state or federal response organization, or governmental grant of authority.

As disastrous times call for flexibility, initial disaster privileges can be based upon confirmation by a licensed independent practitioner currently privileged by the hospital or by a staff member with personal knowledge of the volunteer practitioner's ability to act as a licensed independent practitioner during a disaster.[4]

Primary source verification must be completed within 72 hours of when the LIP volunteer presents himself or herself to the hospital, if feasible, and the medical staff must have a mechanism, documented in writing, to oversee the professional performance of the volunteer LIP's granted disaster privileges.

In the coming weeks and months, hospitals may see additional updates from federal and state agencies, as well as accreditation organizations, that allow for further flexibility in how health care entities staff their hospitals with qualified medical professionals.

However, hospitals must be aware that these updates do not always conform with one another. For example, the waiver of a requirement by the Centers for Medicare & Medicaid Services for billing purposes does not necessarily correspond with state licensure requirements. Given the piecemeal nature of these updates, hospitals must continue to be astutely aware of the status of various legal requirements in order to ensure continued compliance.

Furthermore, while requirements may become less restrictive, hospitals and their medical staffs should act cautiously in relying on expedited measures to grant privileges since the risk of negligent credentialing and malpractice claims continue to be a factor.

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David Balfour is a partner, Cindy Rodriguez is an associate and Rebecca Hoyes is a partner at Nossaman LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] (TJC Standard EM.02.02.07, Element of Performance 8; CMS Condition of Participation 42 CFR § 482.15(d)(1)(i)).

[2] (TJC Standard EM.02.02.13, Introduction, Element of Performance 1) .

[3] (TJC Standard EM.02.02.13, Element of Performance 2).

[4] (TJC Standard EM.02.02.13, Element of Performance 5).

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