Looming confusion as COVID-19 state emergency orders begin to expire

Looming confusion as COVID-19 state emergency orders begin to expire
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As the COVID-19 emergency continues to spread across the country, governors and executive agencies across the United States have taken actions to loosen cross-border licensing restrictions for health care professionals. However, in the absence of a unifying statement of suggested action from the federal government, these actions are a patchwork of disparate state emergency orders. 

An example of the problems caused by these waivers comes from Florida, where the last-minute extension of its initial COVID-19 out-of-state provider waiver left frustrated providers scrambling to coordinate coverage in case the waiver was allowed to lapse. While Florida’s surgeon general ultimately extended the emergency order, the first approval — and the two extensions that came after — were last-minute announcements. This confusion and uncertainty is unlikely to be an isolated event as the COVID-19 emergency continues and other emergency orders reach their expiration dates.

As of June 3, 49 states and Washington, D.C. have released COVID-19-specific orders relating to licensure modifications for out-of-state medical doctors. Each state has promulgated different modifications to regulations for licensing and many have made changes to scope of service, documentation procedures, manner of establishing a patient relationship, billing and reimbursement protocols and more. Further, these modifications not only differ as applied to health care professionals across states, but often differ within an individual state as applied to types of health professionals. A state that has released an order loosening the licensing requirements for a medical doctor may or may not apply that order to nurses. A state that applies its order to nurses may cite a regulatory code section that limits eligible nurses to APRNs, and excludes RNs and LPNs. Clinicians who want to focus their efforts on providing services and health care facilities that seek to obtain help for patients in need must first untangle the legal web of what these out-of-state providers can do and where. 

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Health care professionals who have combed through the hundreds of executive and emergency orders must then navigate the expiration dates. Many of these states have released amendments, expansions and extensions of these orders. These updates are released as new orders which may cross-reference the original order internally, but necessitate a close reading of each new announcement. Of the states with such orders, initial expiration dates ranged from April 9 (Louisiana) to 30 days after the emergency ends (Kansas and Nebraska). 

A majority of states have tied the expiration of their emergency orders to the end of the state declaration of emergency. This tactic is beneficial to providers in that they do not have to check for updates continually throughout the crisis, though it may give rise to additional complications for them. 

While it is logical for some emergency orders to expire along with the emergency (such as those that shutter businesses or limit non-urgent medical care), it is unrealistic to assume the increased demand for health care workers will stop on a single day. Further, providers will face just as much confusion and uncertainty from disparate state announcements as they will from pre-determined expiration dates. Each state will need to announce the end of their respective statewide emergency for itself; it is unlikely that will occur through a single unified directive and unconstitutional for it to occur through a single federal directive. What is most likely to occur is a period of speculation as to when states will announce the end of their emergency declarations, followed by a variety of formal announcements, with varying levels of advance notice of the declarations actually ending. The worst case scenario for providers and patients would be the termination of the emergency without advance notice. 

An abrupt severing of the cross-border licensure waivers will also sever continuity of care for thousands of patients. Providers and health care facilities must be given notice to prepare for the actual end of these emergency orders. 

As the extension of Florida’s out-of-state provider waiver extension revealed, many decisions that affect health care providers and communities are being made in real time. Increasingly aggressive calls for a return to normality may push political leaders to lift their emergency declarations sooner than public health officials would advise. The best case scenario for providers and patients would be the tactic that Oklahoma, Kansas and Nebraska have taken — to provide for the end of their emergency orders after the state declaration of emergency ends. While it is impossible to know how long the impact of COVID-19 will increase the demand for health care, it is certain that increased demand will outlast the emergency declarations. Giving a buffer period would help care providers to plan ahead.  

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State governments are being called upon to make difficult decisions in a situation with scant precedent. Their decisions must take into account the competing interests of those who demand normal operations and those who caution against the risks of continued spread and a second peak of cases if emergency orders are lifted too soon. State emergency orders are beginning to lapse, and health care providers must be prepared to continue monitoring the changing regulatory environment and coordinate continuity of care once these orders expire.   

Reflecting upon the response to the COVID-19 emergency, it is evident that some degree of up-front uniformity would have been beneficial to health care providers and facilities. Despite the variation in current state licensure waivers, lawmakers do, in fact, have access to model laws that would promote such uniformity across states for designated health professionals under specified circumstances. Eighteen states and Washington, D.C., have enacted some part of the Uniform Emergency Volunteer Health Practitioner Act, while 32 have adopted the Enhanced Nurse Licensure Compact. Several state declarations and orders expressly limited liability of health workers under specified circumstances, most commonly those working under the auspices of the Emergency Management Assistance Compact or a state voluntary health professional registration system. 

It is possible that in the urgency of the moment, most legislative drafting at the state level did not include direct reference to or think of using these well-established mechanisms. Many medical licensing boards released their own announcements or specifications on emergency licensing procedures, referencing involvement in these compacts or enactment of the act — adding yet another source of information providers were expected to monitor as they struggled to care for patients. 

It will take years to understand the impact COVID-19 has had on the world, but health care workers, researchers and policy-makers alike have the opportunity to learn from this crisis and create simpler and more effective solutions for the future. 

Julia F. Costich, J.D., Ph.D., is a professor in the University of Kentucky College of Public Health, Department of Health Management and Policy, and also serves as associate director of the Kentucky Injury Prevention and Research Center. Her current research focuses on legal and policy issues in public health and health care.  

Danielle N. Scheer, J.D., M.P.H., is an associate attorney with McDermott Will & Emery, practicing in their Washington, D.C. office. She advises clients on transactional and regulatory health law matters and is Certified in Public Health by the National Board of Public Health Examiners.