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All Hands On Deck: CMS Issues New Blanket Waivers Relaxing Federal Licensing Requirements and Qualifications for Certain Health Care Practitioners

To address provider shortages, CMS issued a declaration on April 9, 2020, setting forth new “Blanket Waivers,” which, among other things, allow practitioners to practice across state borders (if permitted by the state) and at the top of their license.

The Blanket Waivers address regulatory requirements over which CMS has authority, such as Medicare and Medicaid, and do not override existing state and local requirements. However, many states have adjusted their own laws regulating healthcare entities and providers in response to COVID-19, which may facilitate the implementation of the CMS’s Blanket Waivers. 

Federal Licensing Requirements Waived for Practitioners to Practice Across State Lines to Contribute to the COVID-19 Relief Efforts. 

The temporary waiver suspends Medicare requirements that practitioners be licensed in the state where they are providing services. Practitioners will be able to provide medical services to patients, either in-person or via telehealth, in states where they are not licensed, if the practitioner satisfies four conditions. The practitioner must:

  • Be enrolled in the Medicare program;
  • Possess a valid license to practice in the state associated with his or her Medicare enrollment;
  • Be furnishing services in his or her professional capacity in the state where the emergency is occurring – whether in person or via telehealth; and
  • Not be affirmatively excluded from practice in the state or any other state where the emergency is occurring.

CMS’s waiver does not waive or otherwise alter local and state licensing laws. Accordingly, practitioners and health care facilities seeking to utilize the waiver for out-of-state practitioners should consult the appropriate state licensing authority to determine whether any licensing waivers apply, or if there are other conditions that will need to be satisfied for the practitioner to practice in the state.

Non-Physician Practitioners Are Encouraged to Practice Medicine to the Full Extent of Their Education, Training, and Experience. 

To fill the staffing shortage gap, CMS has suspended and relaxed certain federal laws that prevent mid-level non-physician practitioners from practicing at the top of their license. For example, CMS suspended the requirement that Medicare patients be under the care of a physician in a hospital. With this change, hospitals are able to “use other practitioners to the fullest extent possible” to treat Medicare patients. However, as with all CMS waivers, health care facilities and practitioners must still adhere to state law, and a facility can implement a waiver or flexibility only if it is not inconsistent with a state’s emergency preparedness or pandemic plan.  

Additional requirements that have been amended or suspended include, but are not limited to:

  • Anesthesia Services. Supervision of certified registered nurse anesthetists (CRNAs) in hospitals, critical access hospitals, or ambulatory surgical centers are suspended to allow “CRNAs to function to the fullest extent of their licensure.”
  • Critical Access Hospital Personnel Qualifications. Personnel qualifications for clinical nurse specialists, nurse practitioners, and physician assistants are suspended to provide maximum staffing flexibility.
  • Critical Access Hospital Staff Licensure. Federal staff licensing requirements have been waived and deferred to state law in order to provide maximum flexibility to use all available clinicians. 
  • Responsibilities of Physicians in Critical Access Hospitals. The requirement that a doctor of medicine or osteopathy be physically present to provide medical direction, consultation, and supervision for services provided in the critical access hospital is suspended. Nurse practitioners and physician assistants may be used to the fullest extent possible, but will be required to consult a doctor of medicine or osteopathy when necessary. 
  • Supervision of Nurse Practitioners in Rural Health Centers and Federally Qualified Health Centers. The requirement that a physician provide medical direction and supervision of nurse practitioners is suspended.
  • Training and Certification of Nurse Aides. Certain training and certification requirements for nurse aides are suspended, and a skilled nursing facility or nursing facility is allowed to employ nurse aides longer than four months, even if the nurse aid does not meet regulatory training and certification requirements. However, facilities must still ensure nurse aides can demonstrate competency skills and necessary techniques.
  • Home Health Agencies Can Have Occupational Therapists Perform Initial and Comprehensive Assessments. The requirement that occupational therapists can perform initial and comprehensive assessments only if occupational therapy is the service establishing patient eligibility for home health care is suspended. Occupational therapists may temporarily perform such assessments for patients receiving therapy services as part of their plan of care. Home health agencies must still ensure that assessments be performed by the most appropriate discipline for each patient, to the greatest extent possible.
  • Hospice Aide Competency Testing. Supervision requirements for hospice aides are relaxed by temporarily removing the requirement that hospice aides be evaluated onsite every two weeks by a registered nurse. Additionally, the requirement that a hospice aide be evaluated through observation of the aide’s performance of certain tasks with a hospice patient has been modified to allow the hospice aide to use a pseudo patient or computer-based mannequin to demonstrate competence.

As with the practitioner licensing waivers, these waivers also do not apply to state or local laws, and the provider’s or facility’s practices are not permitted to conflict with the state’s emergency preparedness plan.

What’s Next for Waivers? 

CMS’s temporary waivers are automatic and, therefore, practitioners need not contact CMS to formally request relief under any of the Blanket Waivers. As the battle to flatten the COVID-19 pandemic curve continues, additional waivers from CMS are expected to allow practitioners and health care entities to maximize resources and provide greater access to medical care where needed.

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