The Situation: As the novel coronavirus ("COVID-19") outbreak continues, a growing number of state governors have declared states of emergency that allow state agencies to combat the spread of disease and advance access to care, such as through waiver of certain state laws.
The Action: State declarations are taking different forms, with some states issuing robust measures that relax the current legal framework to offer health care providers additional flexibility to provide treatment and promote access to care.
Looking Ahead: These state declarations, as well as federal orders and regulatory changes, including informal internet-only guidance materials, will continuously impact providers' responses to COVID-19 and operations.
The governors of several states in the United States have declared states of emergency in response to outbreaks of COVID-19. Several of these declarations have granted state agencies broad authority to combat the spread of disease through a variety of specific measures, while other states have issued emergency declarations that do not provide specific details, but allow its agencies to take actions to carry out the purpose of the declaration. In the wake of President Trump's declaration of a national emergency, more states have since declared states of emergency or expanded the reach of existing declarations. These emergency declarations have important implications for the operations of health care providers with varying initial sunset dates.
What Does a State of Emergency Mean for Health Care Providers?
An emergency declaration can determine the legal and operational resources available to respond to an emergency, with implications for governments, the private sector, and the public. While the specifics vary by state, state emergency declaration mechanisms give the governor the authority to declare one or more types of emergencies by issuing an executive order or other declaration to that effect. State law may also grant state health officers/agency directors the authority to declare public health emergencies.
The recent emergency declarations issued in more than 40 states in response to the COVID-19 outbreak have taken varied approaches in addressing the duration, geographic area, and specific health agencies leading response activities, as well as, in some cases, waiving or suspending specific health care rules and regulations. Some of these declarations address topics of particular interest to health care providers relating to licensure, reimbursement, and operations (e.g., facility visitor policies, telehealth services, emergency transport, and elective procedures), as outlined further below.
Licensure. Several states have issued declarations and executive orders that offer flexibility regarding licensure of health care providers. New York Governor Andrew Cuomo's emergency declaration, which modified or suspended more than 20 state laws or regulations, permits unlicensed individuals with adequate training to collect throat and nasopharyngeal swab specimens, and to perform, under nurse supervision, activities that would otherwise be limited to the practice of a licensed or registered nurse. Subject to certain limitations, declarations in a number of states allow out-of-state health care professionals, who are not currently licensed in the state, but are licensed in another state, to temporarily provide care to patients. In California, the declaration permits waiver of certain licensing requirements for certain facilities and allows out-of-state personnel to provide assistance in responding to COVID-19.
Reimbursement. In order to expand access to COVID-19 testing, some states are requiring insurers and state Medicaid programs to cover COVID-19 testing regardless of providers' participation status and to waive patient cost-sharing obligations. For example:
- Arizona's emergency declaration directs the Department of Insurance to require that insurers cover COVID-19 testing performed by out-of-network laboratories and waive cost-sharing for COVID-19 testing.
- The California Department of Insurance and the Department of Managed Health Care are requiring private insurers and Medi-Cal plans to cover the costs of COVID-19 testing.
- North Carolina's executive order directs the Department of Health and Insurance to work with insurers to identify any burdens related to COVID-19 testing as well as access to prescription drugs and telehealth services, as needed, in order to reduce patient responsibility to zero for all medically necessary screening and testing for COVID-19.
- The New York State Department of Financial Services ("DFS") issued a directive requiring New York health insurers to waive patient cost sharing associated with testing for COVID-19, including emergency room, urgent care, and office visits. The New York Medicaid program will similarly cover COVID-19 testing without any copays.
Telehealth Services. States are also attempting to remove barriers for consumers to access telehealth services. For example, Arizona is requiring insurers to cover telemedicine visits at a lower-cost sharing point for consumers and New York's DFS has issued guidance directing insurers to develop robust telehealth programs with their participating providers where appropriate. Furthermore, New York's emergency declaration permits rapid approval for the use of telemental health services, including certain waivers of the requirements for in-person initial assessment prior to delivery of telemental health services, limitations on who can deliver telemental health services, and requirements for who must be present. Please refer to the Jones Day Commentaries entitled Telemedicine and COVID-19: CMS Touts Virtual Check-Ins, Has Authority to Implement Telehealth Waivers and > Telemedicine and The Coronavirus Crisis: Key Legal Issues for Providers to Consider for more detailed analyses of telehealth considerations associated with COVID-19.
Visitors, Screening, and Emergency Transport. A number of states' emergency declarations and subsequent actions taken in response to the outbreak restrict visitors' access to certain facilities, such as hospitals and nursing homes. For example, Texas's emergency declaration directs state agencies to restrict visitation at hospitals. Michigan's Governor issued an executive order that requires health care facilities and residential care facilities to begin screening for COVID-19 symptoms and risk factors for all individuals not under their care who are seeking entry into their facilities beginning no later than March 16, 2020. These facilities in Michigan must deny entry to any individual with these symptoms or risk factors. Similarly, Ohio's Governor and Department of Health recommended that nursing homes screen all visitors, including volunteers and vendors. Importantly, the Centers for Medicare & Medicaid Services ("CMS") also published visitor policy guidance for hospitals and skilled nursing facilities.
In addition, other state declarations, such as in New York and California, allow for flexibility in emergency transport by permitting emergency medical service personnel to transport patients to medical facilities other than hospitals.
Suspension of Elective Procedures. In order to concentrate efforts on combatting the COVID-19 health crisis, many states are requesting that hospitals cease performing elective procedures. For example, in a press conference held approximately one week after declaring a state of emergency, Kentucky Governor Andy Beshear asked all Kentucky hospitals to cease elective procedures. On March 14, 2020, the U.S. Surgeon General recommended suspension of elective procedures, and on March 18, 2020, CMS issued guidance recommending that providers limit nonessential medical and surgical procedures, including dental exams and procedures, based on the consideration of factors such as the supply of personal protective equipment, availability of hospital beds and ventilators, the health and age of the patient, urgency of the procedure, and current and projected COVID-19 cases in the region. These actions are further prompting state and local authorities to halt non-emergency and elective procedures. For example, on March 19, 2020, Alaska's Chief Medical Officer issued a mandate citing to the Surgeon General's guidance requiring the suspension of all non-urgent or elective procedures for three months and recommending the creation of a physician task force to evaluate what constitutes "non-urgent" or "elective" surgeries. Even if not required to do so, many providers have decided to cease performing elective procedures and outpatient visits in order to deal with the demands of care related to, and impact to supply chain availability for needed supplies to mitigate, COVID-19.
Ongoing Implications for Health Care Providers
On March 13, 2020, President Trump declared a national emergency in response to the novel coronavirus outbreak. This declaration allows the federal government to increase federal funding for states to respond to the crisis and expand the scope of their emergency actions as the COVID-19 outbreak continues. State actions taken in response to the outbreak are intended to help expand access and eliminate barriers to care by: (i) developing networks of emergency volunteer health care professionals; (ii) developing emergency health care centers; (iii) creating and requiring use of diagnostic and treatment guidelines; (iv) waiving licensure requirements for treatment of patients (e.g., temporary facilities or out-of-state providers); (v) expanding who can provide testing for COVID-19; (vi) waiving cost sharing related to screening and testing for COVID-19; (vii) ensuring access to alternative methods of treatment, such as telemedicine; and (viii) determining procedures for isolation and quarantine. To achieve these objectives, many state emergency declarations give authority to state agencies, such as departments of health, to issue emergency regulations. In the coming weeks, state agencies may issue regulations and guidance that provide further flexibility for providers in the areas discussed in this Commentary.
Temporary changes in federal policies during the emergency period in response to COVID-19 are also rapidly occurring that could impact providers' approach to addressing COVID-19. Please refer to the Jones Day White Paper entitled The Coronavirus Crisis: The Impact of Federal Liability Immunity, Waivers, and Guidance on Health Care Providers for a more detailed analysis of these changes.
Three Key Takeaways
- Federal and state statutory authorities for declaring emergencies vary, which may present challenges for health care providers developing and implementing practices that need to address competing or inconsistent state and federal emergency orders, directives, or guidance.
- Analysis of federal and state specific emergency declarations will inform compliance and operational response measures by providers, including changes to regulatory or programmatic requirements.
- As the COVID-19 outbreak continues, health care providers can expect a growing number of states and local authorities to issue more robust emergency declarations warranting ongoing analysis as to emergency preparedness and COVID-19 action plans.
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