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COVID-19 Highlights Regulatory Impact on Practice of Medicine

Elizabeth Y. Healy, Assistant Vice President, Government and Community Relations

Updated July 24, 2020: Practically overnight, the practice of medicine was dramatically changed, both by the exigencies imposed by the COVID-19 global pandemic and by the governmental response to the medical crisis. In the first few weeks of the pandemic, federal, state, and local governments responded with rapidly evolving guidelines, new and revised regulations, and new legislation. Thousands of executive orders have been issued, laws passed, and regulatory changes made at both the federal and state level have affected the practice of medicine and how healthcare is delivered. These policy responses highlight the degree to which government regulates the delivery of healthcare services.

Some examples of the response to the COVID-19 pandemic by federal, state, and local governments included the following actions:

  • Allowing unlicensed medical school graduates to provide care in a supervised setting.
  • Allowing pharmacists to administer COVID-19 tests.
  • Allowing ambulatory surgery centers to provide hospital services, such as cancer procedures, trauma surgeries, and other essential surgeries.
  • Requiring suspension of in-person treatment for nonemergency healthcare.
  • Expanding the scope of practice for many practitioners and allowing them to practice outside of their specialty.
  • Reinstating active license status for inactive, retired, and volunteer healthcare professionals.
  • Increasing supervision ratios for advanced practice registered nurses and physician assistants.
  • Increasing nurse staffing ratios.
  • Shifting treatment to telemedicine and expanding allowable telemedicine services and reimbursements.
  • Prohibiting elective surgeries in order to preserve resources to treat COVID-19 and emergent cases.
  • Allowing medical residents to provide services under direct supervision and via telehealth.
  • Allowing wider use of verbal orders rather than written orders by hospital doctors.
  • Allowing hospitals to transfer patients to outside facilities—such as ambulatory surgery centers, inpatient rehabilitation hospitals, hotels, and dormitories—while still receiving hospital payments under Medicare.
  • Expanding locations to which ambulances can transport patients.
  • Allowing healthcare systems, hospitals, and communities to set up testing and screening sites for COVID-19.
  • Permitting doctor-owned hospitals to increase the number of beds in their facilities without incurring sanctions.
  • Easing requirements for providers to enroll in Medicare.
  • Expanding Medicare telehealth visit reimbursement and allowing telehealth visits for both new and established patients.
  • Allowing Medicare patients broader access to respiratory devices and equipment.
  • Allowing deferment of court depositions of healthcare providers.
  • Allowing the provision of telemedicine by out-of-state providers.
  • Declaring the provision of healthcare as an essential service.
  • Allowing recognition of healthcare provider licensure across state lines.
  • Granting healthcare providers and facilities limited temporary protections from liability for treatment provided in relation to the public health emergency.
  • Expanding volunteer liability protections when treating COVID-19 patients.

Doctors, nurses, and hospitals have been dealing with unprecedented shortages of the supplies, equipment, medications, and beds needed to care for patients as well as the need for more medical personnel. Nonemergency healthcare services have been postponed or shifted to telemedicine. In response to personnel shortages, some medical practitioners have been providing healthcare services outside of their specialty areas. Retired practitioners have been called back to active duty. Healthcare providers in the hardest hit areas have been forced to make difficult triage decisions that were heretofore unheard of on this scale. The response to the pandemic and the difficult choices it has required have altered the standards of care for healthcare services.

Practicing in harrowing conditions with the constant underlying fear of sickness and death for themselves, their patients, and their families has meant that doctors, nurses, and hospital staff have had to cope with the additional worry of increased liability. Personal injury trial lawyers immediately began advertising for litigation against healthcare providers and have been lobbying in earnest against any medical liability protection provisions for healthcare providers at state and national levels. The Doctors Company and other healthcare advocates fought for provisions in federal law to successfully enact liability protections for volunteer providers, and we have continued to advocate for broader federal protections. This advocacy has resulted in the introduction of HR 7059, the “Coronavirus Provider Protection Act,” by Representatives Lou Correa (D-CA), and Phil Roe, MD (R-TN). The trial attorneys’ national trade association has resisted these provisions every step of the way, even during this time of dire need to increase access to healthcare and bring more providers back into the workforce to care for patients.

Many state policymakers have risen to the occasion and issued emergency orders to provide some level of protection to healthcare providers responding to the pandemic. At the urging of the healthcare community and The Doctors Company, New York’s governor took the lead by issuing an order that quickly became the model for the country. In areas where protections were not quickly enacted, however, clinicians are facing lawsuits for following the guidance and protocols required by state and federal governments.

Every executive order and every piece of legislation that has been enacted in support of healthcare providers and their patients involved active advocacy efforts by state and national organizations—including medical and specialty societies, hospital associations, and The Doctors Company. Healthcare providers advocated for themselves and their patients by responding to our calls to action and telling many compelling stories. Our collective advocacy efforts have been critical to helping policymakers understand the current practice environment and the consequent increased liability exposure that providers are currently facing.

Every aspect of the practice of medicine is subject to state and federal government oversight and regulation. In response to COVID-19, this oversight and regulation has mandated swift and dramatic changes to the practice of medicine—which has, in turn, given personal injury trial lawyers new opportunities to file suits against the nation’s medical providers. These same providers have risen to the challenge of continuing to provide high-quality care, despite losing colleagues, family members, friends, and patients to this unrelenting public health crisis.

Every one of us must continue to advocate for liability protections and the regulatory changes needed to care for our colleagues, friends, neighbors, and loved ones now and in the future. Please continue to advocate for yourself and your patients by sharing your frontline experiences with your friends, family, media representatives, and your local, state, and national elected representatives.

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