COVID-19: Legal updates for individual health care providers

Doctors, nurses, dentists and other individual providers

The ongoing coronavirus/COVID-19 pandemic is causing incredible new challenges and stresses to all Americans (and especially health care providers) every day. Simultaneously, governments at every level continue to issue new statutory and regulatory responses, offering providers new opportunities to confront and overcome these challenges.

Below is a topical guide for individual health care providers, including doctors, nurses, dentists and others. For questions regarding how these changes may affect you, please contact the health care attorneys at Hagwood & Tipton.

Civil liability

On April 10, 2020, Mississippi Governor Tate Reeves issued Executive Order 1471, which took effect immediately and until May 15, 2020.

The order grants health care professionals and health care facilities immunity from suit for civil liability for any injury or death alleged to have been sustained by their acts or omissions while providing health care services including, but not limited to screening, assessing, diagnosing or treating patients for COVID-19, or otherwise acting in support of the state’s COVID-19 response during the pandemic. 

This will not apply to acts or omissions that constitute a crime, fraud, malice, reckless disregard, willful misconduct or would otherwise constitute a false claim.

The order also authorizes the State Department of Health, Board of Nursing, and Board of Medical Licensure to make, amend or rescind any rules or orders it deems necessary for health care professionals to provide health care services in health care facilities in response to the COVID-19 outbreak. 

Licensure

Temporary waivers for out-of-state licenses

On March 13, 2020, the Centers for Medicare and Medicaid Services announced that during the ongoing national emergency, it would temporarily waive the requirements that out-of-state providers be licensed in the state where they are providing services when they are licensed in another state

• Guidance by state –  Click here for guidance from individual states’ medical boards.

Temporary emergency licensure in Alabama

The Alabama State Board of Medical Examiners issued notices of establishment of temporary emergency licensure processes for physicians, physician assistants and anesthesia assistants.

Temporary waiver of licensure for certain specialists in Mississippi

On April 5, 2020, the Mississippi State Board of Medical Licensure issued a proclamation waiving any and all licensure requirements for out-of-state physicians whose specialty services (the proclamation mentions “pulmonologists, nephrologists and other specialists from other states”) are determined to be necessary by the Mississippi State Department of Health, provided that the out-of-state physician holds an unrestricted license to practice in the state where they practice and currently is not the subject of an investigation or disciplinary proceeding.

Telehealth

As the United States health care system adjusts to preventive social distancing orders, telemedicine has come to the forefront as a means to limit unnecessary social contact between providers and patients. For a more in-depth analysis of and further details on state and federal telehealth guidance, click here to read our dedicated post on the subject.

Below is a basic overview of some major telehealth changes that may affect providers.

Out-of-state physicians using telemedicine in Mississippi

Per proclamations by the Mississippi State Board of Medical Licensure, physicians licensed in other states may utilize telehealth to treat Mississippi patients with whom they already have an existing relationship. Click[2]  to read a more thorough breakdown of these proclamations and what they entail.

The Mississippi Board of Nursing has also issued a similar proclamation for nurse practitioners/APRNs.

Prescribing controlled substances via telemedicine

• DEA – On March 20, 2020, the Drug Enforcement Agency issued prescribing rules and guidance regarding controlled substances, particularly through the use of telemedicine. On March 27, 2020, it issued further guidance regarding the issuance of oral Schedule II prescriptions. 
• Alabama – On March 23, 2020, the Alabama State Board of Medical Examiners and State Board of Pharmacy issued a joint notice of enforcement discretion regarding prescribing of controlled substances via telemedicine.

CMS waivers

CMS has currently issued a variety of waivers related to the provision of telehealth services, including relaxing enforcement of HIPAA security violations for telehealth and expanding the list of practitioners permitted to provide telehealth. Click here for more details.

Federal stimulus for health care providers

On March 27, 2020, the U.S. House of Representatives approved a stimulus package, and President Trump signed the bipartisan H.R. 748 – the Coronavirus Aid, Relief, and Economic Security (CARES) Act – into law. The act includes major provisions relevant to health care providers, including:

• $377 billion in small business loans
• $150 billion for hospitals to invest in equipment and infrastructure, which includes reauthorizing grant programs that promote the use of telehealth technologies, including the expansion of telehealth access, insurance coverage, rural telehealth access, Medicare reimbursement for services and others.

Limits to non-essential medical and dental procedures

• CMS – On March 18, 2020, the Centers for Medicare and Medicaid Services issued an instruction to limit all non-essential planned surgeries and procedures, including dental procedures.
• Alabama – On March 19, 2020, Alabama State Health Officer Dr. Scott Harris issued a social distancing order, which included delaying all elective dental and medical procedures.
• Mississippi – On March 19, 2020, State Health Officer Dr. Thomas Dobbs issued a health alert to all health care providers that all medical procedures and non-essential medical visits must be postponed “until the threat of COVID-19 is diminished.”
• Tennessee – On March 23, 2020, Tennessee Governor Bill Lee issued an executive order prohibiting non-essential medical or dental procedures.

HIPAA

• CMS – On March 17, 2020, the Centers for Medicare and Medicaid Services issued notifications of HIPAA enforcement discretion for telehealth services.
• HHS – On March 20, 2020, the Health and Human Services Office for Civil Rights issued guidance for telehealth and HIPAA during the COVID-19 national emergency via a press release and FAQs document.

Advanced/accelerated Medicare payments

On March 28, 2020, the Centers for Medicare and Medicaid Services detailed how providers can access accelerated or advanced Medicare payments under the new stimulus package.

To qualify for this acceleration/advance, providers and suppliers must:

• Have billed Medicare for claims within 180 days immediately prior to the date of signature on their request form
• Not be in bankruptcy
• Not be under active medical review or program integrity investigation
• Not have any outstanding delinquent Medicare overpayments

Medicare will begin accepting and processing these requests immediately, and CMS anticipates payments to be issued within seven days of a provider’s request.

CMS Section 1135 waivers

On March 30, 2020, the Centers for Medicare and Medicaid Services issued blanket Section 1135 waivers of sanctions under the Stark Law for COVID-19 purposes, effective retroactively to March 1, 2020, covering 18 aspects of the Stark Law, with examples provided.

Assistance with these or other health care matters

For further questions or to request assistance with these or any other health care legal matter, call Hagwood & Tipton at (601) 707-4039. You may also email Julie Mitchell or Philip Chapman directly.

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