Michigan Reinstitutes Pre-COVID Scope of Practice, Licensure, and Liability Standards

On July 13, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-150 to rescind a previous order (Executive Order 2020-61) that had permitted certain health care professionals to temporarily practice beyond the scope of their license. Governor Whitmer cited Michigan’s progress in slowing the spread of COVID-19 and the reduced pressure on hospitals as reasons for rescinding the prior expansion of scope. Among other things, the now-rescinded Executive Order 2020-61 had temporarily suspended all provisions of Article 15 of the Michigan Public Health Code (“Code”), relating to scope of practice, supervision and delegation to the extent needed to allow:

1. a licensed, registered or certified health professional;
2. working as an employee or contractor in a “designated health care facility” (defined to include all health facilities licensed under the Code (e.g., hospitals, freestanding outpatient surgical facilities, nursing homes, hospices and hospice residence, homes for the aged, HMOs, and county medical care facilities), state-operated outpatient and veterans facilities, and state-owned surgical centers, as well as any entities used for surge capacity by these listed facilities);
3. to provide medical services necessary to support the designated health care facility’s response to the COVID-19 pandemic;
4. that are appropriate to the professional’s education, training and experience, as determined by the designated health care facility in consultation with its medical leadership.

Executive Order 2020-61 had also permitted (1) health care professionals who are licensed in good standing in other states or United States territories to practice in Michigan without criminal, civil or administrative/licensure penalties for lack of Michigan licensure; and (2) drug manufacturers or wholesale distributors of prescription drugs licensed in good standing in other states or United States territories to temporarily distribute and ship controlled substances into Michigan to a hospital or to a licensed manufacturer or wholesale distributor.

Also important to note is that the rescission of Executive Order 2020-61 removed certain immunity provisions that protected health care professionals and designated health care facilities during the COVID-19 pandemic. Specifically, Executive Order 2020-61 had provided that licensed health care professionals and designated health care facilities that rendered medical services in support of the Michigan COVID-19 pandemic response were not liable for any injury sustained by a person by reason of those services, regardless of how, under what circumstances, or by what cause the injuries are sustained, unless the injury is caused by the health professional’s or facility’s gross negligence.

While rescinding most of Executive Order 2020-61, Executive Order 2020-150 does keep in place the following:

1. Any law or regulation that requires a health care professional to take an exam, be fingerprinted or take part in continuing education as a condition of obtaining or renewing a license, certification, registration remains temporarily suspended.
2. Professional certifications for individuals in basic life support, advanced cardiac life support and first aid will remain in effect during the current emergency declaration, even if they would otherwise be set to expire.
3. Any deadlines for telecommunicators and trainee telecommunicators who are employed by primary public safety answering points to complete training modules or continuing education are suspended until 60 days after the termination of the any state of emergency or disaster related to the COVID-19 pandemic.

Executive Order 2020-150 became effective July 13, 2020 and will continue until the end of any state of emergency or disaster related to the COVID-19 pandemic.