Top Legal Developments Affecting Medical Staff Services in 2021 and Beyond

Director of Healthcare Solutions

From disaster privileging to credentialing by proxy and beyond, COVID-19 has profoundly affected medical staff services professionals’ (MSSP) operations and obligations. As 2020 finally draws to a close, MSSP should keep a keen eye on legislation (such as the Coronavirus Aid, Relief and Economic Security Act, which introduced several new telehealth measures) set to expire on Dec. 31.

And there could be even more changes ahead as Congress hashes out another relief bill. With vaccine distribution on the horizon, 2021 could bring a return to normalcy. But will COVID-19 have permanently changed healthcare by then?

Here are some of the legal developments to have on your radar heading into 2021. 

Changes in Telehealth Licensing

Telehealth continues to be popular with patients, prompting the Department of Health and Human Services to make it more accessible. Recently, an amendment to the Public Readiness and Emergency Preparedness Act waives interstate licensure requirements for “covered countermeasures.” This could include prescribing COVID-19 diagnostic testing to a patient in another state via telehealth.

Several states also have specific licensure waivers for interstate telehealth, says Jeana Singleton, Member and General Counsel at Brennan, Manna & Diamond LLC. However, many of these waivers are set to expire at the end of 2020 or the beginning of 2021. Consult your legal counsel to stay up to date on waiver renewals or expirations in your state.

Updates to Value-Based Care

HHS recently published two final rules on value-based care. While they don’t directly impact compliance, MSSP can play a role in ensuring efficiency through a top-of-license model. “We have to find ways to provide the highest quality care while decreasing costs and making things as efficient as possible,” Singleton says. 

Facilitating the top-of-license model ensures that providers practice at the full scope of their license, which increases efficiency while providing better patient care. Many physicians believe that portions of their work could be performed by other health care workers, in nontraditional settings or be automated, freeing them to practice at the top of their license, a survey by Deloitte found. 

Legal Developments at the State Level

Several states already allow advanced practice registered nurses (such as nurse practitioners) and physician assistants to practice independently. You can see a breakdown by state here. California Gov. Gavin Newsom recently signed legislation allowing nurse practitioners more — though not total — independence. Qualifying NPs must first complete three years or 4,600 hours of “transition to practice” experience.

Stay ahead of legislation in your state by maintaining close touch with your legal counsel, suggests Lori Ferguson, a Partner at Hanson Bridgett LLP. State-level laws do not come with guidance for how changes will impact practice, so it’s incumbent on you and your counsel to determine whether rulings will require revision to your bylaws. “Take a look at and finalize your own rules and regulations around policies to see what, if anything, needs to be updated,” Ferguson says.

As local governments and the federal government continue to combat COVID-19, more changes could be on the horizon in 2021. “It'll be really interesting to see what happens after COVID,” Singleton says. “Once you have people practicing in a certain way, are you going to go back to what you had or take what you implemented during COVID and improve it?”