30 March 2020

Governor Whitmer Issues Executive Order Expanding the Scope of Practice for Health Care Professionals

***Information and guidance in client updates was up to date at time of publication. During the pandemic, information and guidance has been changing rapidly. If you have any questions about the information contained in a client update, please contact the author(s) or your Miller Johnson attorney.***

On March 29, 2020, Governor Whitmer issued Executive Order 2020-30 titled “Temporary relief from certain restrictions and requirements governing the provision of medical services.” The Executive Order temporarily suspends legal provisions relating to the scope of practice, supervision and delegation of licensed, registered or certified health care professionals. There are some limitations on this broad language and, as discussed below, some professions only apply to a “designated health care facility.”

  • The suspension of scope of practice limitations is limited to the extent necessary within a designated health care facility to support the facility’s response to the COVID-19 pandemic. Facilities that are currently able to care for patients under the traditional scope of service and supervision rules, should continue to do so.
  • Health care professionals can only provide services appropriate to their education, training and experience and as determined by the facility in consultation with the facility’s medical leadership. Even if facilities do not intend to take advantage of these changes should plan ahead by having medical leadership meet to determine when and how they would apply the Order.

The Order provides additional guidance with respect to its impact on physician assistants, advanced practice registered nurses, registered nurses, licensed practical nurses and pharmacists.  The key takeaways for designated health facilities are as follows:

  • PAs can provide medical services without a written practice agreement with a physician;
  • APRNs (including CRNAs) can provide medical services without physician supervision;
  • RNs and LPNs can order the collection of throat or nasopharyngeal swab specimens from individuals;
  • LPNs can provide medical services without RN supervision; and
  • Pharmacists can provide care for routine health maintenance and chronic disease states

Definition of Designated Health Care Facility

Many of the provisions of the Order, including the suspension of scope of practice limitations, are limited to “designated health care facilities.”  The order defines designated health care facility to mean:

  • Health facility or agency as defined in MCL 333.20106
    • Ambulance operation, aircraft transport operation, non-transport prehospital life support or medical first response services;
    • County medical care facility
    • Freestanding surgical outpatient facility (“ASC”)
    • Health maintenance organization
    • Home for the aged
    • Hospital
    • Nursing home
    • Hospice
    • Hospice residence
    • Any of the above located at a university, college, or other educational institution
  • State-owned surgical centers
  • State-operated outpatient facilities
  • State-operated veterans facilities; and
  • Entities used as surge capacity by any of the above

Use of Students, Medical Students, Physical Therapists and EMTs

The Order also authorizes a designated health care facility to allow health care professional students to volunteer or work in roles necessary to support the facility’s response to the COVID-19 pandemic.  Medical students, physical therapists and EMTs are also allowed to work as “respiratory therapist extenders” under the supervision of physicians, respiratory therapists or APRNs to assist in the operation of ventilators or related devices.

Practicing Across State Lines

Physicians and any drug manufacturer or wholesale distributor of prescription drugs licensed and in good standing in other states are now allowed to practice in Michigan. A provider, manufacturer or wholesale distributor is not in good standing if a licenses has been suspended or revoked or is pending disciplinary action.  If a license has a limitation in another state, that limitation also applies in Michigan. Drug manufacturers and wholesale distributors can distribute and ship controlled substances to Michigan hospitals or to other licensed manufacturers or wholesale distributors in Michigan.

The Center for Medicare & Medicaid Services previously stated physicians could work across state lines.  Other states such as Indiana also now allow health care providers licensed in other states to practice across state lines.  This means Michigan physicians can provide telemedicine services to patients located in Indiana and other states that have passed similar orders.

Use of Volunteers and Qualified Personnel

Designated health care facilities can use qualified volunteers or qualified personnel affiliated with other designated health care facilities as if they were affiliated with the facility.  Designated health care facilities are also permitted to adjust the scope of practice of those volunteers or personnel just as they can with their own health care professionals.

Immunity Provisions

The Order also contains a variety of immunity provisions.  With respect to health care professionals acting without supervision or without a practice agreement, the Order gives them immunity from criminal, civil and administrative penalty related to the lack of such supervision or lack of such agreement.

Consistent with the Emergency Management Act, the Order provides immunity to licensed health care professionals and designated care facilities that provide medical services in support of the State’s response to the COVID-19 pandemic.  Such providers/facilities are not liable for an injury unless the injury or death was caused by gross negligence. The Order also provides that students and other unlicensed volunteers are provided this same immunity.

Health care facilities should keep in mind that the Order does not mean insurance companies will pay for services provided without supervision or outside of the provider’s normal scope of practice. Clients with questions should contact Tim Gutwald or their regular Miller Johnson attorney.