Who can certify patients?


States are responding to Covid-19 by bending the rules for non-physician providers like NPs and PAs



Several states have broadened the scope of practice for health care professionals such as nurse practitioners and physician assistants under temporary new rules issued by their governors in response to Covid-19.


Relaxed rules are designed to “cut through the red tape” and make it easier for Covid-19 patients to receive care, including Medicare-reimbursed services in their homes.


“States which relax their rules right now are putting more resources out on the front lines to get home health services to patients who need them, ” said J’non Griffin, owner and president of Home Health Solutions, a nationwide outsourcing and consulting firm serving home health, hospice and long-term care.


“The changes mean health care professionals such as nurse practitioners and physician assistants will be able to certify that patients meet homebound eligibility, “ J’non said. “And they will able to continue doing so for the duration of the public health emergency.”


CARES Act and CMS approval


Medicare has already given its blessing to allow non-physician providers to certify patients during the Covid-19 crisis. In early April, the Centers for Medicare and Medicaid Services (CMS) issued blanket waivers authorizing nurse practitioners, clinical nurse specialists and physician assistants to certify home health eligibility.


The waivers were a direct result of the Coronavirus Aid, Relief and Economic Security (CARES) Act passed by Congress at the end of March. The Act relaxed the rules about who can certify a patient for home health and extends home services eligibility to patients with either a definitive or a suspected diagnosis of Covid-19.


Nurse practitioners, clinical nurse specialists and physician assistants already had permission from CMS to perform the crucial face-to-face encounter between physician and patient which is required for home health eligibility. But in almost every state, a physician had to take it from there, signing that he or she accepted the other provider’s clinical encounter with the patient as valid,and issuing all orders for treatment and services. Each state is different

The law is not the same in every state. Each state has its own licensure laws and practice standards which must be followed in addition to what CMS says. Prior to the Covid-19 public health emergency, slightly more than a dozen states already had in place regulations allowing nurse practitioners full practice privileges to treat patients and prescribe medications without the direct oversight of a physician. But because of CMS regulations, non-physician providers in those states were not allowed to certify home health patients even with full practice authority. In another dozen or so states, regulations allow nurse practitioners to earn full practice authority by working under the direct supervision of a physician for a set number of hours or years. Lengths of supervised service vary greatly from state to state. Virginia, for example, requires five years and 9,000 hours of supervision while Maryland requires 1.5 years.

Those differences in state regulations are the reason accreditation partners such as CHAP (the Community Health Accrediting Partner) were quick to warn home care providers to proceed with caution despite the blanket waiver granted by CMS. In states which already had full practice authority for nurse practitioners, only Medicare regulations prohibited the certification of home health patients. The CMS waiver removed that obstacle. But in numerous other states where nurse practitioners did not already have full practice authority, executive orders at the state level are required before home health patients can be certified by anyone other than a physician. “We’re starting to see more states make their rules more flexible right now so that various state requirements can temporarily align with these blanket waivers from CMS,” J’non said.


In Alabama, for example, Gov. Kay Ivey has issued a flurry of proclamations expanding the scope of practice for any health care professionals, from license renewal leniency to granting physician assistants temporary authority to treat COVID-19 patients without the direct supervision of a physician. She has also authorized nurse practitioners and certified nurse midwives to practice beyond their usual scope.


“These practitioners need to be working at the top of their license to address public health care needs during the Covid-19 pandemic, and many states are changing the rules right now to make that possible,” J’non said.



Which states have acted?


Among states which did not previously offer full practice authority, a few have acted quickly to remove physician supervision requirements for non-physician providers. Those states include New York and Louisiana, both particularly hard hit by the coronavirus, as well as Wisconsin, Kentucky and New Jersey. Maine also suspended practice agreement requirements. But other states have taken no action on scope of practice during the coronavirus crisis. Even in some states where licensure requirements have been suspended and providers are allowed to cross state lines to practice temporarily, nurse practitioners and physician assistants may still be bound by state law to practice only in collaboration with or under the direct supervision of a physician. Some states are only partially lifting supervisory restrictions, exempting providers from normal documentation requirements, for example, or requiring a certain number of years of experience before normal requirements are waived. Massachusetts and Virginia are two examples of states moving cautiously in this area. An executive order in Massachusetts granted state-certified nurse practitioners, midwives and some clinical nurse specialists authority to perform many functions independently of physicians – but required non-physician providers to have had at least two years of supervised practice experience to qualify. Virginia also has in place an executive order dropping its supervised practice requirement from five to two years during the public health emergency. "This is a continuously evolving situation, with new proclamations, executive orders and waivers being issued frequently, and just as states have different regulations, the temporary changes they are authorizing may vary widely from state to state," J'non said. "States which have not yet changed their existing laws and regulations could do so at any time," she added.


Agencies need to remain watchful, she said, and make certain they are up to date on the latest changes in their states.


State by state look

Here’s a look at states we have been able to find so far which have waived normal scope of practice regulations, setting up temporary rules which may impact non-physician providers and certification of home health eligibility. Note: Not all states are listed here. We are adding states to this list as we research, including states which do not appear to have taken any action on scope of practice for COVID-19, and we will continue to update as information becomes available. Our list is meant to be helpful, not definitive, and is subject to error. Agencies will need to determine for themselves how and whether the temporary rules changes actually apply to the law in their states. When possible, we are providing the link to the order referenced. Alabama

A governor's proclamation allows the temporary expansion of scope of practice for nursing practitioners and physician assistants. NPs and PAs are allowed to “perform all skills” within facility scope although some controlled substance prescription writing will be subject to additional requirements.

http://alabamapublichealth.gov/legal/assets/soe-covid19-040220.pdf Alaska Alaska was already a full practice authority state prior to the public health emergency.

Arkansas

An executive order by Gov. Asa Hutchinson set in place the mechanism to identify state regulations which need revision in order to reduce the risk of COVID-19, and home health regulations were identified as needing revision. However, we are unable to find any changes yet to existing law/regulations which would impact home health certification by nurse practitioners and physician assistants.

Arizona Arizona state regulations already allowed full practice authority prior to the public health emergency.

Colorado State regulations allow full practice authority after a set length (1000 hours) of supervised practice. Existing regulations have not been changed at this time. Connecticutt State regulations allow full practice authority after a set number of hours (3 years and 2000 hours) of supervised practice. Existing regulations have not been changed at this time. Delaware State regulations allow full practice authority after a set length (2 years, 4000 hours) of hours of supervised practice. Existing regulations have not been changed at this time. Hawaii Hawaii state regulations already allowed full practice authority prior to the public health emergency. Idaho Idaho state regulations already allowed full practice authority prior to the public health emergency. Indiana We are unable to find changes at this time to existing state laws/regulations affecting scope of practice. Illinois Prior to the Covid-19 public health emergency, Illinois allowed nurse practitioners to earn full practice authority after 4,000 hours of supervision by a physician. We are unable to find changes at this time to that requirement. Iowa State regulations allow full practice authority in Iowa. Kansas An executive order now suspends requirements for physician assistants and nurse practitioners. https://governor.kansas.gov/wp-content/uploads/2020/04/EO-20-26-Executed.pdf

Kentucky

Kentucky is a full practice authority state with a requirement for 4 years of supervised practice for nurse practitioners before they can practice without physician supervision. In an executive order from Gov. Andy Beshear, the state of Kentucky has temporarily waived some requirements for nurse practitioners to maintain practice agreement with physicians. https://kbn.ky.gov/Documents/Order%20_KBN_APRNs.pdf

Louisiana

Louisiana is one of the states which has specifically granted permission for non-pysician providers to certify patients for home health. It has temporarily suspended the state requirement that only a physician may enroll patients in home health. A proclamation by Gov. John Bel Edwards allows advanced practice registered nurses, nurse practitioners, clinical nurse specialists, physician assistants and certified nurse midwives to certify patients for home health.

https://gov.louisiana.gov/assets/Proclamations/2020/38-JBE-2020.pdf

Maine

An executive order by Gov. Janet Mills suspends supervision or collaborative practice requirements.

https://www.maine.gov/governor/mills/sites/maine.gov.governor.mills/files/inline-files/EO-16.pdf Maryland Maryland is a full practice authority state requiring 1.5 years of supervised practice. No changes have been made to the supervision requirement at this time.

Massachusetts An executive order temporarily removes collaborative and supervisory restrictions on nurse practitioners who have at least two years of previously supervised experience. Michigan

An executive order by Gov. Gretchen Whitmer temporarily removes restrictions on scope of practice.

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523481--,00.html Minnesota State regulations allow full practice authority after a set length of supervised practice (2080 hours.) Existing regulations have not been changed at this time. Mississippi

At the time of our research, we found no law no waiver specifically addressing existing scope of practice regulations.

Missouri

Although Missouri has enacted some waivers affecting provider restrictions, we can find no waiver at the time of our research specifically addressing existing law/regulations on allowing non-physician providers to certify patients. Montana Montana was previously a full practice authority state. Nebraska State regulations allow full practice authority after a set length (2000 hours) of supervised practice. Existing regulations have not been changed at this time. Nevada State regulations allow full practice authority after a set length (2 years, 2000 hours) of hours of supervised practice. Existing regulations have not been changed at this time. New Hampshire State regulations in New Hampshire already allowed full practice authority. New Jersey An executive order suspends some joint protocol requirements for NPs for collaboration with a physician. http://d31hzlhk6di2h5.cloudfront.net/20200401/fa/1d/84/7d/184bf8acfda4ee1851d4c2ca/EO-112.pdf

New Mexico State regulations in New Mexico already allowed full practice authority. New York Gov. Andrew Cuomo has granted non-physician provider types temporary authorization to practice without the direct oversight of a physician.

https://www.governor.ny.gov/news/no-20210-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency North Dakota State regulations in North Dakota already allowed full practice authority prior to the Covid-19 public health emergency. Oklahoma Our research did not find scope of practice waivers at this time for existing supervision and/or collaboration with physicians. Oregon State regulations in Oregon already allowed full practice authority. Pennsylvania Although the state has enacted some temporary rules changes, at this time the waivers do not appear to impact existing regulations for collaboration with and supervision by a physician. South Carolina No changes appear to have been made at this time to existing regulations for collaboration with and supervision by a physician. South Dakota State regulations allow full practice authority after a set number of hours (1040) of supervised practice. Existing regulations have not been changed at this time. Tennessee Waivers impact some but not all of the existing regulations for collaboration with and supervision by a physician.

https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee15.pdf Texas An emergency rule impacts some but not all of existing regulations for supervision by a physician. https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=22&pt=9&ch=172&rl=21

Utah State regulations already allowed full practice authority. Vermont State regulations allow full practice authority after a set length of supervised practice (2 years, 2400 hours.) Existing regulations do not appear to have been changed at this time. Virginia An executive order suspends physician supervision requirements for nurse practitioners who have at least two years of supervised practice experience. Normally five years of supervised practice are required. https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-57-Licensing-of-Health-Care-Professionals-in-Response-to-Novel-Coronavirus-(COVID-19).pdf


Washington State regulations already allowed full practice authority. West Virginia State regulations allow full practice authority after a set length of supervised practice (3 years.) Some regulations affecting collaborative agreements have been temporarily changed in West Virginia. Wisconsin

An executive order by Gov. Tony Evers suspends requirement for practice agreement or collaborative relationship with other healthcare providers. https://docs.legis.wisconsin.gov/misc/emergency_orders/2020-PHE16.pdf Wyoming State regulations already allowed full practice authority prior to the Covid-19 public health emergency.

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