Important Info for NPs: Waivers, Regulatory Updates, and Policies Related to COVID-19
Thursday, March 19, 2020
Posted by: Erin Cusack
APRN Practice FAQ, COVID-19 Disaster
For guidance on APRN scope of practice and delegation requirements in the context of the COVID-19 declared disaster, please see an FAQ from the BON here.
BON FAQ & Guidance on PPE
The nursing standard of care in Texas requires nurses to ensure a safe environment for their patients at all times. 22 Tex. Admin. Code §217.11(1)(B). This includes implementing measures to prevent exposure to infectious pathogens and communicable conditions. 22 Tex. Admin. Code §217.11(1)(O). The appropriate use of PPE during the COVID-19 pandemic falls within these requirements. Please see the BON FAQ on appropriate use of PPE for RNs/APRNs during the pandemic.
Out-of-State RN/APRN Licensure
In accordance with Section 418.171 of the Texas Government Code, any out-of-state nurse, including APRNs, may practice in Texas for the purpose of rendering aid, provided the nurse holds a current license in good standing in their home state. Therefore, any out-of-state nurse with a license in good standing* is not required to hold a Texas license in order to practice nursing in a disaster relief effort operation setting. Additionally, Texas is a member state of the Nurse Licensure Compact. As such, any LVN or RN holding an active compact license already holds a privilege to practice in Texas. See BON's announcement here.
Waiving Written Delegation Requirements
Pursuant to Texas Medical Board Rule 172.21, APRNs practicing in the context of a disaster declaration are not required to have a written prescriptive authority agreement (e.g. Prescriptive Authority Agreement or Facility-based protocol) for practice in a disaster relief effort operation setting. Although the written delegation agreement is waived, APRNs are still required by the rule to have some form of delegating physician, and specifically, a delegating physician who: 1) is licensed in Texas; and 2) practiced prior to the date of the emergency. However, the arrangement with this delegating physician is informal and can be made with any physician who meets the two criteria above. See BON's announcement here.
Waiver for Retired/Inactive APRNs
Governor Greg Abbott has waived certain regulations allowing for an expedited licensing reactivation process for Advanced Practice Registered Nurses (APRN) in Texas. Under these waivers, an APRN with a license that has been inactive for more than two years, but less than four years, will not have to pay a reactivation fee, complete continuing education credits, or complete the current practice requirements. For APRNs with a license that has been inactive for more than four years, the reactivation fee and continuing education requirements will be waived. See details on the BON website here.
Regulations to Allow LVNs, RNs, & APRNs a 6-month Grace Period for Licensure Renewal
The Office of the Governor granted a waiver of Texas Occupations Code 301.301(c), (c-1), and (f), 22 Tex. Admin. Code 223.1(a)(5), 22 Tex. Admin. Code 217.6(a), and22 Tex. Admin. Code 216.8(d)(1). As a result of these waived regulations, beginning on March, 23, 2020, Licensed Vocational Nurses (LVNs), Registered Nurses (RNs), and Advanced Practice Registered Nurses (APRNs) will have a grace period until September 30, 2020 to renew the license without any late fees incurred or need to submit evidence of continuing education to meet continuing competency requirements for renewal. This waiver also applies to renewals of prescriptive authority.
Additionally, any nurse whose license expires between March 23 and September 30, 2020 may continue to practice until September 30, 2020. For more information please visit the Board’s COVID-19 Licensing Page here: https://www.bon.texas.gov/COVID-19Licensing.asp.
Continuing Competency Requirements for Licensure Renewal During COVID-19
The Board of Nursing will consider extenuating circumstances on a case-by-case basis regarding the completion of continuing competency requirements for licensure renewal during the COVID-19 Disaster Declaration Period. For more information about continuing competency requirements, please visit the Board’s Frequently Asked Questions for Continuing Education & Competency. If a licensee needs to request a waiver of continuing competency requirements, please email a request to the following address: Mark.Majek@bon.texas.gov. In the request, include your name, dated of birth and license number. Once received, the BON will allow an online renewal.
Changes to the APRN Application/Licensure Process
To ensure timely processing of APRN applications, the BON will now allow exceptions to the submission requirements of the Verification of Completion (Part II) form and graduate level transcripts. The BON will now accept electronic versions of the Part II form. As a courtesy, the BON staff has reached out to various APRN programs throughout the state to provide an interactive PDF of the Verification of Completion form. The BON will also accept electronic transcripts. See more information on these application requirement accommodations and waivers here.
Temporary Certification Waiver for APRN Graduates
Effective April 21, 2020, Governor Abbott has temporarily suspended the initial national certification examination requirement in rule 221.4(a)(3) for new APRN graduates to allow them to work under a temporary permit for the duration of the declared disaster. This waiver requires the APRN graduate to work under direct physician supervision and does not include prescriptive authority. Applicants for this waiver must have completed their educational program on or after December 1, 2019 and meet all other APRN educational and licensure requirements contained in Board Rules 221.3 and 221.4. Interim approval is not available to applicants to whom this waiver applies. See more details here.
In addition to waivers for APRN graduates, the Governor has approved the following waivers for nursing, physician, and physician assistant students, as well as retired/inactive providers, in order to expand the workforce during COVID-19. The state is:
Home Health Certification, Final Rule
On March 27, the Coronavirus, Aid, Relief and Economic Security Act (CARES ACT) was signed into law. One of the key provisions of the bill for nurse practitioners was section 3708, which removed federal barriers that prevent nurse practitioners from documenting Medicare home health care face-to-face assessments and certifying and re-certifying patient eligibility.
CMS released an interim final rule related to COVID-19, and in this interim final rule they included the permanent changes to the Medicare and Medicaid home health benefits pursuant to the CARES Act. These changes are retroactively effective to March 1, 2020. The interim final rule is here. Medicare guidance on the home health changes can be found here.
While the federal Medicare and Medicaid regulations now permanently authorize NPs to order home health services, these regulatory changes still defer to state law for Medicaid and CHIP. At this time, the Texas Medicaid Program has not made changes to the Title XIX form to allow nurse practitioners to order home health and durable medical equipment, but we will continue to update this page as we receive more information.
CMS Waivers for Facilities, RHCs/FQHCs/CAHs
As the nation continues to navigate peak demand related to the pandemic, CMS has issued several new waivers impacting CMS regulated facilities and requirements for Medicare beneficiaries. Review a list of CMS COVID-19 Blanket Waivers.
1. Critical Access Hospitals (CAHs)
- CMS is waiving the requirement in § 485.631(b)(2) for CAHs that a physician be physically present to provide medical direction, consultation, and supervision for certain services. The physician can just be available remotely.
2. Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs). See waiver details here.
- Physician supervision of NPs in RHCs and FQHCs. CMS is modifying the requirement in 42 C.F.R. 491.8(b)(1) that physicians must provide medical direction for the clinic’s or center’s health care activities and consultation for, and medical supervision of, the health care staff, only with respect to medical supervision of nurse practitioners, and only to the extent permitted by state law. The physician, either in person or through telehealth and other remote communications, continues to be responsible for providing medical direction for the clinic or center’s health care activities and consultation for the health care staff, and medical supervision of the remaining health care staff. This allows RHCs and FQHCs to use nurse practitioners to the fullest extent possible and allows physicians to direct their time to more critical tasks.
- Certain staffing requirements. CMS is waiving the requirement in the second sentence of § 491.8(a)(6) that a nurse practitioner, physician assistant, or certified nurse-midwife be available to furnish patient care services at least 50 percent of the time the RHC and FQHC operates. CMS is not waiving the first sentence of §491.8(a)(6) that requires a physician, nurse practitioner, physician assistant, certified nurse-midwife, clinical social worker, or clinical psychologist to be available to furnish patient care services at all times the clinic or center operates. This will assist in addressing potential staffing shortages by increasing flexibility regarding staffing mixes during the PHE.
3. Skilled Nursing Facilities (SNFs). See waiver details here. CMS is providing relief to long-term care facilities related to provision of physician services through the following actions:
- Physician Delegation of Tasks in SNFs. CMS is waiving the requirement in § 483.30(e)(4) that prevents a physician from delegating a task when the regulations specify that the physician must perform it personally. This waiver gives physicians the ability to delegate any tasks to a physician assistant, nurse practitioner, or clinical nurse specialist who meets the applicable definition in 42 C.F.R. 491.2. CMS is temporarily modifying this regulation to specify that any task delegated under this waiver must continue to be under the supervision of the physician. This waiver does not include the provision of § 483.30(e)(4) that prohibits a physician from delegating a task when the delegation is prohibited under State law or by the facility’s own policy.
- Physician Visits. CMS is waiving the requirement at § 483.30(c)(3) that all required physician visits (not already exempted in § 483.30(c)(4) and (f)) must be made by the physician personally. CMS is modifying this provision to permit physicians to delegate any required physician visit to a nurse practitioner, physician assistant, or clinical nurse specialist who is not an employee of the facility, who is working in collaboration with a physician, and who is licensed by the State and performing within the state’s scope of practice laws.
Telehealth/Telemedicine, State Waivers
Please see an FAQ on the use of telehealth/telemedicine during the COVID-19 disaster here.
- Allowing Phone Consults. Telemedicine, including the use of telephone only, may be used to establish a provider-patient relationship (see Texas Medical Board announcement here). This expanded use of telemedicine may be used for diagnosis, treatment, ordering of tests, and prescribing for all conditions. The standard of care must be met in all instances.
- Reimbursement for State-Regulated Health Insurance Plans: The Texas Department of Insurance filed an emergency rule requiring insurers to pay the same amount for telemedicine services, including covered mental health services, as they do for in-person services. Please see an FAQ on the emergency rule here. The rule applies to in-network services for state-regulated health plans. State-regulated plans cover about 15% of the Texas market, including plans purchased through Healthcare.gov. The insurance cards for state-regulated plans have either “DOI” (for department of insurance) or “TDI” (Texas Department of Insurance) printed on them.
Use of Telemedicine to Treat Chronic Pain:
The Office of the Governor granted a waiver of the Texas Board of Nursing Rule 217.24(e)(1) that limits the APRN's ability to issue prescriptions for controlled substances for chronic pain via telemedicine, but the waiver expired on June 6, 2020.
On June 8, the Texas Board of Nursing adopted emergency amendments to Rule 217.24 relating to Telemedicine Medical Prescriptions to allow the waiver to continue. Please see details of the emergency rule here.
This rule only applies if the patient is an established chronic pain patient of the APRN and is seeking telephone refill of an existing prescription, and the APRN determines that such telemedicine treatment is needed due to the COVID-19 pandemic.
If a patient is treated for chronic pain with scheduled drugs through the use of this emergency rule, the medical records must document the exception and the reason that a telemedicine visit was conducted instead of an in-person visit. The APRN shall also give due consideration to factors that include, at a minimum, date of the patient’s last in-person visit, patient co-morbidities, and occupational related COVID risks. Please note: the emergency rule does not expand the APRN's authority to order or prescribe schedule II drugs.
Texas Medicaid/CHIP Fleixibilities
Texas Health & Human Services Commission has recently moved to extend a variety of the Medicaid/CHIP flexibilities through July 31, 2020 (see TMHP provider-facing COVID-19 website).
Some of these flexibilities include:
- Telemedicine/audio only delivery of Texas Health Steps “well child” check-ups (original notice posted to TMHP 5/12/2020)
- Telemedicine/audio only delivery of “acute care” E&M codes (99201-99205; 99211-99215) (original notice posted to TMHP 3/20/2020)
- Telemedicine/audio only delivery of certain behavioral health services (90791, 90792, 90832, 90834, 90837, 90846, 90847, 90853, H0038, 99408, G2011, H0049, H0001, H0004, H0005, H0034, H2011, H2012, H2014, H2017) (original notice posted to TMHP 3/20/2020)
- FQHC and RHC reimbursement for telemedicine and telehealth services (original notice posted to TMHP 4/2/2020)
- Waiver of office visit co-pays in CHIP (original notice posted to TMHP 4/2/2020)
Texas Health Steps Telemedicine Guidance for Providers
On May 8, 2020, in response to COVID-19, HHSC issued guidance permitting remote delivery of certain components of Texas Health Steps medical checkups for children over 24 months of age (starting after the “24-month” checkup). This guidance also applies to well-child visits provided through CHIP. See guidance here.
CARES Act FAQ, Telehealth
CMS has updated their Coronavirus Aid, Relief, and Economic Security (CARES) Act FAQ with new information on telehealth here.
CMS, Telehealth Changes
The Centers for Medicare and Medicaid Services (CMS) have announced significant short term changes to Medicare telehealth policy. They will reimburse for telehealth visits to Medicare patients starting March 6, regardless of location, to patients in facilities or in homes. Please see an FAQ on the Medicare telehealth changes here.
Medicare, Codes for Telehealth/Telemedicine Reimbursement
CMS released an additional list of Medicare codes that are eligible for telemedicine and telehealth payment. Please read the announcement here, which also contains a link to a spreadsheet of telehealth/telemedicine codes.
Telehealth Services and Payment for FQHCs and RHCs
The Coronavirus Aid, Relief, and Economic Security (CARES) Act authorizes RHCs and FQHCs to furnish distant site telehealth services to Medicare beneficiaries during the COVID-19 public health emergency. Distant site telehealth services can be furnished by any health care practitioner working for the RHC or the FQHC within their scope of practice. Practitioners can furnish distant site telehealth services from any location, including their home, during the time that they are working for the RHC or FQHC, and can furnish any telehealth service that is approved as a distant site telehealth service under the Physician Fee Schedule (PFS). See more information, including virtual communication billing codes, here.
Controlled Substances/Ryan Haight and Telemedicine
The Drug Enforcement Administration (DEA) has announced that telemedicine can now be used under the conditions outlined in the Controlled Substances Act under the public health emergency telemedicine exception to Ryan Haight. DEA-registered prescribers may issue prescriptions for controlled substances via telemedicine without a prior in-person evaluation if the prescription is for a legitimate medical purpose, real-time two-way audio-video is used, and the practitioner is acting in accordance with state law. See more information on their coronavirus page under "telemedicine."
The Department of Health and Human Services Office for Civil Rights (HHS OCR) has issued a notification of Enforcement Discretion indicating that OCR will not enforce certain HIPAA regulations during this emergency in order to ease access to telehealth services. Please review their release here.
Medicare, Expedited Provider Enrollment
For up-to-date info on expedited provider enrollment in Medicare, please see a newly released FAQ from CMS here.