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Aftermath of CA’s State of Emergency: Reduced Flexibility for Hospitals and Health Care Providers

Many waivers and flexibilities relating to the state’s hospital and professional licensing requirements will expire on February 28, 2023, with the end of California’s COVID-19 State of Emergency (SOE), as discussed in yesterday’s post. However, some Board of Pharmacy waivers have been extended an additional 90 days, to May 28, 2023.


Here are five expiring waivers that hospitals, clinics, and healthcare professionals should be aware of and five pharmacy waivers that the Board of Pharmacy is continuing.


A. Waivers Expiring on February 28, 2023


Expiring Waiver 1: Facility Exemptions Regarding the Use of Space

During the SOE, the California Department of Public Health (CDPH) permitted general acute care hospitals to configure physical space to accommodate patient surge and other COVID-19 related mitigation strategies. Many hospitals utilized this waiver to add temporary additional beds.

Hospitals that need to extend their temporary space changes past the end of the PHE must submit a program flexibility request to CDPH through the Risk & Safety Solutions platform. The requests must include justification for the program flexibility and adequate supporting documentation that the proposed changes do not compromise patient care. Absent the program flexibility approval, all temporary changes made under the space waiver must be restored to their original conditions no later than April 11, 2023, six weeks after the expiration of the PHE.


Per a February 6, 2023, notice issued by the Department of Health Care Access and Information (“HCAI”), hospitals are required to report to HCAI once the changes have been restored to their original condition. If a hospital intends to make a space change permanent, whether the change involves construction or not, the change must be submitted for review and approval to HCAI no later than two weeks after waiver expiration. These changes are required to be compliant with the California building Standards Code requirements after the PHE expires.

We note that other provider types may see their space waivers expire after the end of the SOE or federal Public Health Emergency, including Primary Care Clinics that converted space to provide additional patient care or triage areas without obtaining prior approval from CDPH, or Certified Skilled Nursing Facilities that implemented alternative space arrangements subject to a waiver by Centers for Medicare and Medicaid Services (CMS).


Expiring Waiver 2: Out of State Medical Personnel Practicing Without a License

Under this waiver, local EMS agencies, California medical facilities, telehealth agencies contracted with a California medical facility, and staffing agencies could request that the California Emergency Medical Services Authority’s (EMSA) allow out-of-state medical personnel, including EMS personnel, nurses, and physicians, to practice without a California license. In addition, medical providers with a pre-existing patient who moved to California could obtain a 30-day waiver to temporarily continue to provide care via telehealth. Following the SOE expiration, all out-of-state medical personnel will be required to obtain a California license to continue practicing in California.


Expiring Waiver 3: Expanded Scope of Practice for Medical Personnel

California is allowing this waiver regarding the expanded scope for emergency medical transportation personnel to expire. Pursuant to this waiver, licensed paramedics, Emergency Medical Technicians (EMT), and Advanced Emergency Medical Technicians (AEMT) were allowed to perform their current scope of practice in any static settings, such as hospitals, medical facilities, alternate care sites, shelter care sites, and in-home settings for purposes of responding to the COVID-19 pandemic. In addition, they were authorized to perform COVID-19 and influenza testing and vaccinations. They could also provide monkeypox vaccinations.


As a reminder, most waivers of professional licensing requirements have already expired, including the in-person physician examination requirement for continued physical therapy treatment (expired March 11, 2022), waiver of Physician Assistant supervision requirements (expired March 11, 2022), waiver of Nurse Practitioner supervisions requirements (expired March 11, 2022), and waiver of face-to-face training and supervision requirements for Professional Clinical Counselors and Clinical Social Workers (expired August 31, 2022).


Expiring Waiver 4: Expanded Scope of Practice for Pharmacists

The following waivers regarding pharmacists’ scope of practice are no longer applicable when the SOE ends on February 28, 2023:


  • Pharmacists could order, perform, and interpret results for authorized COVID-19 tests without the involvement of a laboratory director, the coordination with the patient’s primary care provider or diagnosing prescriber, or being present within the four walls of a licensed health facility.

  • Pharmacists could also independently initiate and administer any COVID-19 vaccines as well as epinephrine or diphenhydramine by injection for the treatment of a severe allergic reaction. Pharmacy technicians could also perform COVID-19 tests.

  • Staffing ratio for pharmacists and pharmacist technicians administering COVID-19 vaccines were increased from 1:1 to 1:2.

  • Any California laws that prevented pharmacists from independently initiating and furnishing Paxlovid pursuant to the federal Food and Drug Administration (FDA) Emergency Use Authorization (EUA) were waived.


Expiring Waiver 5: Reactivation or Restoration of an Inactive License for Less Than Five Years or Renewal of CNA and HHA Licenses

Under this last waiver, a health care professional could reactivate or restore a retired, inactive, or canceled license despite failing to comply with continuing education requirements or failing to pay the appropriate fees as long as that license was not subject to a disciplinary proceeding and was not inactive for more than five years. A health care professional will now have to comply with all requirements including the payment of fees and continuing education requirements to have their license reactivated or restored.


Additionally, Certified Nurse Assistants (CNAs) whose certification expired no earlier than March 30, 2018, or whose certification would have expired during the SOE, may continue to work as a CNA without renewal. Similarly, Home Health Aides (HHAs) whose certification expired during the SOE may work as an HHA until the end of the SOE, without renewal. Following the end of the waivers, both CNAs and HHAs will have to renew if they have not already.


B. Waivers Continuing Until May 28, 2023


Waiver 1: Remote Processing

The Board of Pharmacy has issued several regulatory waivers to facilitate the ability for pharmacists to “work from home.” Among those waivers was the expanded ability for pharmacists to remotely process orders and prescriptions from outside the pharmacy or hospital. Pharmacists may continue to do the following from outside of the pharmacy or hospital for a licensed pharmacy:

  • Entering order entry or other data entry,

  • Performing prospective drug utilization review,

  • Interpreting clinical data,

  • Insurance processing,

  • Performing therapeutic interventions,

  • Providing drug information services, and

  • Authorizing release of medication for administration


Pharmacy technicians and pharmacy interns may also remotely enter an order entry or other data entry or process insurance if a pharmacist provides remote supervision.


After May 28, 2023, no remote processing will be permitted beyond what is provided in Business and Professions Code section 4071.1(a), which allows pharmacists to electronically enter a prescription or an order into a computer from any location outside the pharmacy or hospital.


Waiver 2: Pharmacist to Pharmacist Intern Ratio

The ratio of pharmacists to intern pharmacists may can be increased to allow for one additional intern pharmacist who will administer immunizations or two additional intern pharmacists if that pharmacist is solely engaged in immunization-related activities.


Waiver 3: Prescribers Dispensing Medication to Emergency Room Patients

A prescriber may still dispense COVID-19 antiviral therapeutic medication for up to a 72 hour period to an emergency room patient even when no pharmacists are available. In addition, hospitals with an automated unit dose system (AUDS) in the emergency room do not need to license the AUDS to dispense COVID-19 antiviral therapeutic medication. Prescribers may also dispense short-acting, beta-agonist inhalation products (e.g. Albuterol inhalers to manage COVID-19 symptoms) to emergency room patients.


Waiver 4: Pharmacy Technicians Working Outside of the Pharmacy

If properly trained and supervised, the pharmacy technician can continue to work outside of a pharmacy specifically for the preparation of individual doses of a COVID-19 vaccines.


Waiver 5: Storage and Redistribution of COVID-19 Vaccines

Finally, the waiver of statutory and regulatory requirements for storing and redistribution COVID-19 vaccines will remain in place as long as providers follow the COVID-19 Redistribution Guidance issued by CPDH.


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For more information on hospital and professional licensing and scope of practice requirements after the PHE, please contact Felicia Sze, Sammy Chang, or Kyle Brierly.

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