Legal considerations for healthcare workers crossing state lines to help during pandemic
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April 23, 2020
By Christopher Cheney
There are several legal considerations when licensed healthcare workers cross state lines during the coronavirus disease 2019 (COVID-19) pandemic, a healthcare attorney says.
Last month, the Trump administration declared a state of emergency and changed federal rules to allow licensed healthcare workers to practice medicine across state lines. The move is designed to address shortages of healthcare workers as COVID-19 patients surge and hospital staff are sidelined by coronavirus infection.
To assess the legal implications of licensed healthcare workers crossing state lines, HealthLeaders recently spoke with Melissa Markey, JD, who is an attorney at Indianapolis-based Hall, Render, Killian, Heath & Lyman, P.C. In addition to specializing in healthcare law, she is a licensed paramedic.
The following is a lightly edited transcript of that conversation.
HealthLeaders: What is the new legal mechanism that allows licensed healthcare workers to cross states lines?
Melissa Markey: The federal declaration of emergency empowered state regulators to take the actions that are necessary to temporarily—during the emergency only—waive licensing rules so that licensed personnel from other states can come and help.
The reason why states maintain control over licensure is due to their desire to make sure that the healthcare professionals who are practicing in their state are adequately qualified and adequately trained, and they have not engaged in behavior that is not in the best interest of their citizens.
The waiver removes the ability of the state regulators to look at each professional individually and evaluate where they were trained, how long they have held a license, and what lawyers call character and fitness, which looks at things like whether healthcare workers have ever been convicted of a crime.
HL: How does the ability of licensed healthcare workers to cross states impact reimbursement for medical services?
Markey: On the federal level, the declaration of emergency allows Medicare and Medicaid to pay for the care that is provided by any licensed professional who has gone through the basic checks such as Drug Enforcement Administration registration.
The federal waiver is more about payment of services than licensure. Technically, states have the power to waive their own licensure laws under their own emergency management acts and other state laws. The challenge comes about because of the federal payment rules. If you don’t have a federal order, then clinicians would have problems getting paid by Medicare and Medicaid. The federal declaration is mainly about dollars. The state declaration is mainly about the licensure law.
HL: How does crossing state lines impact healthcare worker liability?
Markey: There are a lot of different ways that you can volunteer to provide services, especially in this kind of disaster. Some of those ways of volunteering provide some immunity from liability and some of them don’t provide any immunity.
You should check with your malpractice insurance carrier. You also should look at the laws of the state where you will be volunteering your services—you want to find out whether you would qualify under the Good Samaritan law for protection. You should also look at a state’s emergency management law.
HL: How does crossing state lines impact workers’ compensation?
Markey: It is important to check whether you will be protected through workers’ compensation or some other protective scheme if you become injured or ill while you are providing services. This virus does not spare healthcare workers and they are becoming sick—sometimes very sick— with COVID-19.
Typically, a healthcare facility that is using volunteers from another state will confirm that their license is still valid, they will confirm any other criteria that they require to ensure that the healthcare worker is qualified, and they will try to confirm whether a physician holds hospital privileges. So, there is a process at the facility level.
Some volunteer healthcare professionals come through volunteer organizations such as the Medical Reserve Corps or the National Disaster Medical System. You volunteer ahead of time, you get cleared, your credentials are confirmed, then you can get to work right away because you have been pre-credentialed.
Depending on which pathway you go through, you may have liability and workers’ compensation protections. For example, the National Disaster Medical System personnel are treated as temporary federal employees, and they are protected from liability and are provided with some workers’ compensation protection.
HL: How do you check to see whether you have workers’ compensation protection?
Markey: The most common place to find that information is under a state’s emergency management act to see whether there is a provision for volunteers who come from outside the state to assist during a disaster.
HL: Would it be prudent to consult with a lawyer before volunteering your professional services in another state?
Markey: That’s certainly an option. There also are resources available online from the federal Department of Health and Human Services—the assistant secretary for preparedness and response has some resources. The American Health Lawyers Association public interest group has resources that go through several considerations and outline some of the laws.
Christopher Cheney is the senior clinical care? editor at HealthLeaders.