In the March 16, 2020 Executive Order, Governor Hogan adopted various policies impacting healthcare facilities and providers in some of the initial steps towards flattening the curve of COVID-19 cases among Maryland residents.
COVID-19 Facilities and Assets
This Executive Order established that any property owned by the state of Maryland would be made available to Maryland’s Secretary of Health to use as a place for treating, isolating, and/or quarantining Maryland residents impacted by COVID-19. In response to this Executive Order, Maryland has now transformed the Baltimore Convention Center into a field hospital with the capacity for treating 250 patients recovering from COVID-19. This alternative site opened on April 27, 2020, in time to handle the surge of recovering patients.
The Secretary of Health was ordered to establish policies and procedures for receiving, stockpiling, rationing, and distributing assets received by the State of Maryland from the Strategic National Stockpile, as well as other assets needed for COVID-19 testing.
Health Care Providers’ Licensing Changes
The Executive Order also provided extensive changes to health care practitioner licensing with the goal of increasing the number and availability of healthcare workers. The Executive Order granted reciprocity to health care practitioners holding valid, unexpired licenses that were issued by other states, without first requiring those practitioners to obtain a license or practice letter from the appropriate Maryland licensing agency or board, if Maryland health care facilities needed additional workers to meet required staffing ratios or to ensure continuous, safe delivery of health care services. However, pursuant to this Executive Order, health care practitioners with out-of-state licenses who are eligible for temporary licenses, such as nurses, must still apply for a temporary health care license from the state of Maryland within 10 days of first working at a health care facility in Maryland. If the health care practitioner with an out-of-state license can reasonably obtain a temporary license before working in Maryland, then they are required to do so. Maryland’s Board of Physicians does not offer temporary licensing for physicians, and is not offering special authorization or a separate application process. Instead, each health care facility is responsible for making its own determination regarding eligibility for physicians with out-of-state licenses.
Governor Hogan also extended the expiration date for all temporary health care licenses that would have expired during the state of emergency, which was declared on March 5, 2020, so that health care practitioners providing care under a temporary license will remain eligible to provide care throughout the state of emergency.
In addition to allowing health care practitioners with out-of-state licenses to work in health care facilities in Maryland, Governor Hogan has also authorized Maryland practitioners with inactive licenses to provide services at health care facilities, as long as the activities that the practitioner engages in would have been authorized under the inactive license. However, the inactive practitioner can only provide services if (1) qualified personnel of a health care facility determine that the inactive practitioner is competent to engage in such activities, (2) the addition of the inactive practitioner would help the health care facility to meet required staffing ratios or ensure continuous and safe delivery of health care services, and (3) the inactive practitioner could not reasonably reinstate his or her inactive license in sufficient time.
Health care practitioners have also been granted the right to expand upon their scope of practice and engage in activities that are not authorized by their licenses if necessary for a heath care facility to meet required staffing ratios and if qualified supervisory personnel approve of the expansion and supervise accordingly.
As of May 7, 2020, all licensed healthcare facilities and healthcare providers are permitted to resume elective and non-urgent medical procedures and appointments as long as certain precautions are taken, which include: (1) licensed healthcare providers must exercise independent judgment in determining what procedures are appropriate to perform, which appointments should occur, and which patients should be seen; (2) health care facilities and healthcare providers resuming elective and non-urgent medical procedures must have at least 1 weeks’ worth of PPE for themselves, staff, and patients, as appropriate; (3) social distancing requirements are maintained; (4) all healthcare workers, patients, and others must be screened for COVID-19 symptoms upon arrival; (5) healthcare facilities and healthcare providers must implement enhanced workplace infection control measures in accordance with CDC guidelines; and (6) any healthcare facility or healthcare provider who is unable to provide PPE for themselves, staff, and patients where appropriate, must immediately cease operations to urgent and non-elective procedures and appointments.
In addition to ensuring availability of health care facilities and practitioners to meet the needs of COVID-19 patients, Governor Hogan issued an Executive Order on March 20, 2020 (which was later superseded by his Executive Order of April 1, 2020) expanding upon the availability and use of telehealth during the COVID-19 pandemic.
Pursuant to the Executive Order, health care services can now be delivered not only through the use of telecommunications technology (“telehealth”) but also through audio-only calls and conversations to a patient in a different physical location than the healthcare practitioner. This Order will last through the State of Emergency. The caveats to this expansion are as follows: the health care services delivered through telehealth and audio-only calls and conversations must (1) be clinically appropriate and within the scope of practice of the health care practitioner; and the health care practitioner must be licensed, certified, or otherwise authorized to provide health care services in Maryland, (2) comply with the same standards of practice that apply to in-person health care services, and (3) document in the patient’s medical records the health care services that are provided through telemedicine using the same standards for documenting in-person health care services.
The health care practitioner offering telehealth or audio-only calls and conversations can establish a practitioner-patient relationship as long as the health care practitioner verifies the identity of the patient, discloses to the patient certain information about the health care practitioner, and obtains consent. Although telehealth and audio-only healthcare services are offered remotely, the health care practitioner providing treatment or issuing a prescription must still perform a clinical evaluation that is appropriate for the individual patient. The Maryland Medical Assistance Program and the Behavioral Health Administration will only reimburse for services that do not violate requirements set forth in the Executive Order.
If you have specific questions about providing health care under these executive orders, please contact Lauren Ellison or any other member of Tydings’ health care practice group.
This has been prepared for informational purposes only and does not constitute legal advice.