Health Care Law Blog

Two Emergency Orders Affecting Health Care Services Related to COVID-19

On March 29, Governor Whitmer signed two emergency executive orders in response to the urgent need for help from as many health care professionals as possible in dealing with the COVID-19 pandemic.

The first emergency order [Executive Order 2020-30] suspends the scope of practice, supervision and licensure requirements in the Public Health Code to allow licensed health professionals to work in whatever capacities are appropriate to their respective education, training, and experience. The order also allows students and volunteers to provide certain services within designated health care facilities.

The emergency order also protects licensed health care professionals and designated care facilities from liability in negligence or malpractice for injuries to persons sustained by reason of services in response to the COVID-19 pandemic, absent gross negligence.

The second emergency order [Executive Order 2020-25] allows pharmacists to refill prescriptions for non-controlled maintenance medications without a physician prescription under limited circumstances.

Executive Order 2020-30 temporarily suspends the scope of practice, supervision and licensure requirements in the Public Health Code for:

• physician assistants
• advanced practice registered  nurses
• registered nurses
• licensed practical nurses
• pharmacists
• students enrolled in programs to become licensed, registered or certified health professionals
• medical students
• physical therapists
• emergency medical technicians

The scope of practice, supervision, and delegation requirements are suspended only to the extent necessary for the medical professional to provide medical services appropriate to their education, training and experience. Subject to this overall guideline,

• Physician assistants can provide medical services without a written practice agreement with a physician, as is currently required.
• Advanced practice registered nurses, including nurse practitioners and nurse anesthetists, can practice without physician supervision.
• Registered nurses and licensed practical nurses may perform swab testing of individuals suspected of being infected by COVID-19.
• Pharmacists may provide care for routine health maintenance, chronic disaster states, or similar conditions.

The order incorporates an existing Public Health Code provision that allows individuals whose education, training, and experience substantially meets the requirements for licensure to provide medical care in the case of a disaster. This will permit health professionals with lapsed licenses, such as retired physicians and nurses, to volunteer their services.

Additional provisions apply to services provided at “designated health care facilities.” The list of facilities in the Public Health Code is expanded to include state-owned surgical centers, outpatient facilities, and veteran facilities. It also includes “entities used as surge capacity” by these facilities.

• Students enrolled in programs to become licensed health professionals may volunteer or work within designated health care facilities in whatever role is necessary to support the facility’s response to the COVID-19 pandemic.
• Medical students, physical therapists, and emergency medical technicians may volunteer or work within the facility as “respiratory therapist extenders” under supervision of physicians, respiratory therapists, or advanced practice registered nurses.

The emergency order allows licensed health care professionals in good standing in another state or territory in the United States to temporarily practice in Michigan without a license. This permission does not apply to an individual with a suspended or revoked license or subject to a pending disciplinary action. The order also suspends requirements for examinations or continuing education required for initial renewal licensing.

The order extends the immunity of the Emergency Management Act to licensed health professionals, volunteers, students, and designated health care facilities providing services in support of Michigan’s response to the COVID-19 pandemic. This effectively grants protection against negligence or malpractice claims. Liability is only allowed in the case of gross negligence.

Executive Order 2020-25

Executive Order 2020-25 allows a pharmacist to dispense an emergency refill, up to a sixty-day supply, of a non-controlled maintenance medication to avoid an interruption in the patient’s ongoing care or any adverse effects on their well-being.

The pharmacist must make every reasonable effort to communicate with the prescriber prior to refilling the prescription. The order requires insurers and health maintenance organizations providing prescription drug benefits to cover any emergency refills of covered prescriptions.

Pharmacists may substitute a therapeutically equivalent medication for a medication that is subject to critical shortages.

Student pharmacists may assist in the filling and distribution of medications if supervised in real-time remotely by a pharmacist.

Out-of-state pharmacies and wholesale distributors are deemed to be licensed to do business in Michigan, but may not deliver controlled substances into the state.

For more information about Executive Orders 2020-25 and 2020-30, contact a member of Foster Swift’s health care group.

Categories: Health Care Reform, Hospice, Hospitals