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California Department of Consumer Affairs and California Department of Public Health Issue Limited Licensing Waivers

On March 30, 2020, in response to the continued spread of COVID-19, California Governor Newsom issued Executive Order N-39-20, authorizing temporary adjustments to certain standards related to staffing and licensing requirements for healthcare facilities, providers, and professionals.

Because the waivers authorized under the Order add significant flexibility to current licensing standards, hospitals and healthcare professionals will want to review them carefully and understand their scope and limitation.

The Order authorized the directors of the State Department of Public Health (CDPH), the Department of Consumer Affairs (DCA), the California Emergency Medical Services Authority, the Department of Developmental Services, and the Department of Social Services to waive or suspend certain requirements, including specified licensing, certification, and staffing requirements for hospitals, other health facilities, and specified professions.

Authorized Waivers to Credentialing and Professional Licensing Requirements 

Among other things, the Order focused on maximizing the number of qualified healthcare professionals authorized to practice in California and in California facilities during the current State of Emergency. To achieve those ends, the Order authorizes the Director of CDPH to temporarily waive specific statutes and regulations governing hospitals’ credentialing and privileging responsibilities. The Order also authorizes CDPH to waive hospital and health facility licensing and staffing requirements under Division 2 of the Business and Professions Code, as well as to waive licensing and certification requirements and amend scopes of practice of certified nursing assistants, home health aides, and nursing home administrators regulated under Division 2 of the Business and Professions Code. Additionally, the Order authorizes the Director of DCA to waive professional licensing requirements and amend scopes of practice of healthcare professionals regulated under Division 2 of the Business and Professions Code.

DCA Issues Waivers; More Likely to Come

In response, on March 31, 2020, the DCA issued two waivers: (1) an Order Waiving License Renewal Requirements, temporarily waiving certain license renewal examinations and continuing education requirements for providers with active licenses due to expire between March 31, 2020, and June 30, 2020; and (2) an Order Waiving License Reactivation or Restoration Requirements, temporarily waiving continuing education requirements and the payment of specified fees for providers with licenses that have been “in a retired, inactive, or canceled status” for “no longer than five years.” Under both orders, the healthcare professional may still be required by the individual licensing boards to submit license renewal or other required forms in order to renew or restore their licenses. Additionally, on April 3, 2020, the DCA issued an Order Waiving Restrictions on Nursing Student Clinical Hours, which waives for a period of 60 days, certain clinical setting and course requirements, subject to specified conditions.

The DCA also posted Questions and Answers (“Q&As”) to provide guidance on DCA’s application of the Order. The Q&As identify the licensing boards to which the waivers apply, which include, but are not limited to, the Medical Board of California, the Physician Assistant Board, the Board of Registered Nursing, and the Respiratory Care Board. The DCA noted it will continue working with the licensing boards to determine what other waivers may be necessary to facilitate the provision of care during the COVID-19 crisis, and expects waivers to be processed within four-to-seven business days and posted on the DCA Waivers page.

CDPH Issues Waiver; More All Facilities Letters Likely

On April 5, 2020, CDPH posted an All Facilities Letter, AFL 20-35, waiving, until the end of the State of Emergency, certain Certified Nurse Assistant (CNA) requirements and suspending enforcement of specified CNA requirements related to initial, renewal, and expired certification, reciprocity, criminal record clearance, and change of address reports. The AFL authorizes CNAs with certification expiring within the last two years or during the State of Emergency to continue working without renewal. In addition, it permits Licensed Vocational Nurses (LVNs) and Registered Nurses (RNs) with a valid license in another jurisdiction to work as CNAs immediately after applying to CDPH for certification, even if the LVN or RN’s license expired within the last two years. CDPH advised that healthcare facilities need not submit program flexibility requests to employ individual nurse assistants or CNAs under the waivers specified in the AFL and that form CDPH 5000A may be submitted for all other waiver requests. CDPH will post all future temporary emergency waivers in response to the COVID-19 outbreak on its All Facilities Letters 2020 page.

The Waivers Do Not Permit Unlicensed Practice

As hospitals and healthcare professionals review the waivers, they should understand that the waivers do not authorize unlicensed individuals to practice a healthcare profession; rather, they facilitate the continuation, restoration, or reciprocity of licenses. Additional waivers from DCA, CDPH, and responses from the other agencies affected by the Order are expected to follow.

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