Idaho’s Hospitals – What the Governor’s Waiver of DHW Rules Means to Your Facility

On March 23, 2020, Governor Brad Little suspended 125 state administrative rules (including rules for Medicaid, and licensure of physicians, physician assistants, respiratory therapists, and nurses) to ensure such rules do not prevent, delay, or hinder necessary action to cope with the emergency.  This suspension corresponds with action by the Idaho Department of Health and Welfare on March 17, 2020, the Idaho Board of Medicine on March 18, 2020, and the Idaho Board of Nursing on March 18, 2020.  While not intended as a comprehensive summary of the Idaho executive branch and agency response to the COVID-19 outbreak, this alert summarizes some of the key aspects of that response to date.

Emergency Changes to Telehealth and Medicaid Billing

On March 17, 2020, the Idaho Department of Health and Welfare (IDHW)  announced that Idaho Medicaid was expanding the number of codes reimbursable via telehealth, and temporarily rescinded the MA18-0007 policy statement.  Under IDHW’s new guidance,  any procedure delivered via telehealth may be covered when:

• The service can be safely and effectively delivered via telehealth, and
• The service fully meets the code definition when provided via telehealth, and
• The service is billed with a GT modifier, and
• All other existing coverage criteria are met.

This change was effective as of March 17, 2020, and applies to all services billed through fee-for-service Medicaid and also to all claims paid through the Idaho Behavioral Health Plan (Optum) and Idaho Smiles (MCNA).  This guidance does not apply to managed care plans for people eligible for both Medicare and Medicaid administered by Blue Cross of Idaho or Molina Healthcare of Idaho.  Services that can be provided effectively telephonically without real-time video may also be covered via telehealth.

In addition to these telehealth changes, the Governor’s March 23, 2020 Proclamation also suspended numerous provisions of Idaho Medicaid regulations.  The most critical of the Medicaid regulations suspended include:

• Suspension of the requirement of a primary care provider referral for certain services listed in the Idaho Medicaid Provider Handbook.
• Suspension of the requirement for IDHW to provide 60 days’ notice of any substantive and significant changes to requirements for referrals, primary care provider reimbursement, or provider duties
• Suspension of the ability to charge a co-payment for emergency medical screenings when determined that an emergency room condition does not exist.
• Suspension of a hospital’s ability to refuse to provide services to a participant when a medical screening has determined that an emergency condition does not exist and the participant does not make the required co-payment at the time of service.

Emergency Changes to Physician, Physician Assistant, and Respiratory Therapist Licensure, Telehealth Services, and Supervision of Physician Assistants

On March 18, 2020, the Idaho Board of Medicine enacted emergency changes to licensure, telehealth services, and the supervision of physician assistants. The practical combined effect of the Governor’s suspension of conflicting IDAPA provisions and the Board of Medicine’s temporary emergency changes to licensure, supervision, and telehealth requirements includes:

1. Guidance for Out-of-State Practitioners/Telemedicine. During the COVID-19 response, out-of-state physicians and physician assistants may practice in Idaho, including utilizing telemedicine when treating patients in Idaho, without the necessity of securing a license to practice in the state, provided the out-of-state physician or physician assistant holds an unrestricted license to practice in the state in which the physician or physician assistant practices and currently is not the subject of an investigation or disciplinary proceeding.  Out-of-state physicians and physician assistants are encouraged to notify the Board of their intent to practice in Idaho.
2. Licensure Reactivation. Retired or inactive physicians, physicians assistants, and respiratory therapists whose licensure was in good standing when they retired or went inactive, and who retired or went inactive less than 5 years ago, may apply for a temporary license to practice in Idaho. Such licensure will be valid for 120 days, unless extended by the Board.
3. Supervision of Physician Assistants. The changes also temporarily waive the registration requirement for physicians willing to supervise PAs during the COVID-19 response.  It also removes the requirement that a physician must seek a waiver to supervise more than 4 PAs (for the duration of the COVID-19 crisis only), along with allowing the supervising physician to complete and maintain onsite an Attestation and COVID-19 Modified Delegation of Services (“DOS”) form (e.g., a roster of PAs supervised), rather than the normal requirement that a PA submit a standard DOS form to the Board for approval. This new DOS rule does not apply to physician assistant work that is not urgently responsive to COVID-19.

Emergency Changes to Nursing Licensure

On March 18, 2020, the Board of Nursing enacted emergency changes to licensure for various categories of nurses and assistive personnel. The practical combined effects of the Governor’s suspension of conflicting IDAPA provisions and the Board of Nursing’s temporary emergency changes to licensure include:

1. Nurse Apprentices. The Idaho Board of Nursing is temporarily waiving the requirement that a healthcare facility apply and pay an application fee to become a nurse apprentice site. Further, nursing students eligible to becomes a nurse apprentice (i.e., those who have successfully completed a basic nursing fundamentals course and are in good academic standing in their nursing program) are eligible to apply through the Idaho Board of Nursing. Application fees are temporarily waived.
2. New Graduate Temporary Licenses. Board of Nursing regulations authorize the New Graduate Temporary License Program. This Temporary License allows senior nursing students to work as new graduate nurses with direct supervision from a licensed registered nurse while they prepare to take the NCLEX. The Idaho Board of Nursing is temporarily allowing senior nursing students to work with a New Graduate Temporary License 30 days prior to graduation. Application fees to obtain a graduate temporary license are temporarily waived.

3. Temporary Reactivation of Nursing Licenses. The Idaho Board of Nursing has also developed a Temporary Reactivation of Nursing License Application which allows an inactive Idaho licensed nurse who had a previous unencumbered license in Idaho as a LPN, RN, and/or APRN eligible to apply for temporary reactivation of their license. There is no fee for this temporary license.

4. Short Term License for Nurses in Non-Compact States. For an LPN or RN in a Non-Compact State, the Idaho Board of Nursing has a One-Time Short-Term License Application available. There is no fee for this temporary license.

Clients are encouraged to review the websites of the Idaho Department of Health and Welfare, Idaho Board of Medicine, and Idaho Board of Nursing for a complete treatment of emergency changes, and for the most up-to-date information on the response to the COVID-19 outbreak.  This alert is informational only, and is not intended as legal advice.

Please contact any member of our Health Law Practice Group if you have questions:

Idaho Falls office:
Marvin M. Smith (mmsmith@hawleytroxell.com) (208) 529-3005

Marvin K. Smith (mksmith@hawleytroxell.com) (208) 529-3005

Austin Strobel (astrobel@hawleytroxell.com) (208) 529-3005

Boise office:
Tom Mortell (tmortell@hawleytroxell.com) (208) 388-4929.

This Client Alert has been prepared by Hawley Troxell Ennis & Hawley, LLP for informational purposes only and is not legal advice, a legal opinion or counsel.  Readers receiving information through this Client Alert should not act on or rely on it without consulting professional legal counsel.  Any such opinions, advice or counsel are dependent upon the application of the law to the particular facts and circumstances of any given situation, and should be given by a licensed attorney in the exercise of his or her professional judgment only  after the establishment of an attorney-client relationship and based upon the exercise of the attorney’s professional judgment after consideration of such facts and circumstances.  The furnishing of this Client Alert does not constitute or give rise to an attorney client relationship.