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Archive for the ‘Coronavirus – Government’ Category

COVID-19: Protecting Those Who Protect Us

Posted on: April 2nd, 2020

By: Parisa Saleki

The Volunteer Protection Act of 1997 (Public Law 105–19) came into effect over two decades ago with a simple goal: promote volunteerism by limiting, and sometimes eliminating, a volunteer’s risk of tort liability. The recently enacted Coronavirus Aid, Relief, and Economic Security Act (CARES Act) further builds on the goal of encouraging volunteerism.

Specifically, the CARES Act limits liability of health care professional volunteers during the COVID-19 emergency response with respect to the diagnosis, prevention, or treatment of COVID-19 or the assessment or care of a person’s health-related to COVID-19. Section 4216 of the CARES Act states that a volunteer health care professional “shall not be liable under Federal or State law for any harm caused by an act or omission of the professional in the provision of health care services during the public health emergency.”

The CARES Act does not, however, eliminate liability altogether. Volunteers should be cautious of several exceptions to the new rule. For example, the limitation will not apply if a person sustained harm as a result of a volunteer’s willful act or gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the harmed individual. Further, liability will not be limited if a health care professional volunteer rendered services and caused a person harm while under the influence of alcohol or an intoxicating drug.

So, who exactly do these new rules apply to? The CARES Act defines the term “volunteer” as a health care professional who, with respect to the health care services rendered, does not receive compensation or any other thing of value in lieu of compensation, which includes a payment under any insurance policy or health plan, or under any Federal or State health benefits program.

For legal professionals handling claims under this section of the CARES Act, it is important to note that the section is not retroactive. The limitation of liability only applies to claims for harm in which the act or omission that caused harm occurred on or after the date the CARES Act was enacted. Lastly, the effect of this section comes to a halt once the COVID-19 public health emergency is declared over.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on the construction industry, employment issues arising from the virus, the real-world impact of business restrictions, and education claims. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Nursing Homes at Highest Risk, States Respond

Posted on: April 1st, 2020

By: Shaun M. Daugherty

States across the country are taking every measure possible to fight the spreading deadly COVID-19.  One of the most at-risk groups are the elderly, especially those with lengthy lists of other health problems.  In those instances where people reside in close quarters with attendants and staff constantly moving between rooms, it can be a disaster for the residents if the virus breaches its defenses.  The reports on March 30, an eon ago in this pandemic, were that over 400 nursing facilities across the United States have countless confirmed infected residents and/or staff.  The news confirms daily that states are being hit hard with reports of high levels of outbreak in their long-term care facilities. 

The CDC issued its checklist for long-term care facilities that recommend the restriction of all visitation except in those end of life situations; restriction of all non-essential personnel; cancel all group activities and communal dining, and implement active screening of resident that show any symptoms of the disease.  Centers for Medicare & Medicaid Services (CMS) has also issued guidance for nursing homes mirroring the CDC’s recommendations. 

Some nursing homes have temporarily been converted to COVID-19 only recovery centers.  Massachusetts has 12 such facilities currently.  In New York, the mandate is that nursing facilities are ordered to accept hospital discharges, even those that have tested positive for COVID-19.  These measures are providing the desperately needed bed space in the overburdened hospital systems.     

In Georgia, Governor Brain Kemp has issued an order to have the National Guard deployed to the state’s nursing homes to provide much-needed assistance in the attempts to stop the deadly spread of this disease in its elderly population.  The main role of the National Guard at these facilities will be for education and implementation of better sanitation methods and to train the staff on more aggressive infectious disease control measures.  They will also assist in deep cleaning the facilities where necessary. 

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CARES Act, education claims, law enforcement, the real-world impact of business restrictions, and the viruses’ impact on the construction industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

The CARES Act and What It Means for State and Local Governments

Posted on: March 31st, 2020

By: Jacob Daly

Much of the focus on the Coronavirus Aid, Relief, and Economic Security (CARES) Act has been on the relief it provides for individuals and both large and small businesses, as well as the funding it provides for public health initiatives.  Rightfully so.  But the relief it provides for state and local governments should not be overlooked.  Of the $2 trillion appropriated by the law, about $424 billion is allocated for state, local, and tribal governments.  The law also provides additional funding for joint federal-state programs such as Medicaid and unemployment compensation.

The largest single appropriation in the CARES Act for state, local, and tribal governments is $150 billion for the creation of a Coronavirus Relief Fund.  (Note that local governments are eligible to participate in this fund only if they have a population of more than 500,000.)  Of this amount, $3 billion is allocated for Washington, D.C., Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa, and $8 billion is allocated for tribal governments.  The remaining $139 billion is to be allocated proportionally among the states, with each state receiving at least $1.25 billion.  Eligible local governments may not receive more than 45% of the amount allocated to the state in which they are located.  A chart prepared by Federal Funds Information for States showing the estimated allocation of the entire Coronavirus Relief Fund among the states, District of Columbia, Territories, and Tribes can be accessed here.

To be eligible for these funds, the chief executive of the government must certify to the Secretary of Treasury that it will comply with the following three conditions:

  1. the funds may be used only for necessary expenditures relating to COVID-19;
  2. the funds may not be used for expenditures that are already accounted for in the government’s most recently approved budget as of March 27, 2020; and
  3. the funds must be used for costs incurred between March 1, 2020, and December 30, 2020.

The Inspector General of the Department of the Treasury has oversight responsibility for funds provided to state, local, and tribal governments, and if it is determined that these funds were used improperly, the offending government must reimburse the federal government.

Other funding for which for state, local, and tribal governments may be eligible includes the following:

  • $454 billion for loans to businesses, states, and cities
  • $30.75 billion for an Education Stabilization Fund for states, school districts, and institutions of higher education for costs relating to COVID-19
  • $45 billion for a Disaster Relief Fund
  • $1.4 billion for deployments of the National Guard
  • $4.3 billion, through the CDC, to support efforts of federal, state, and local public health agencies
  • $25 billion for transit systems
  • $400 million in election security grants for the 2020 federal election cycle
  • $100 million for Emergency Management Performance Grants for emergency management activities
  • $45 million in grants to states for child welfare services
  • $850 million in grants through the Edward Byrne Memorial Justice Assistance Grant program to states for continuation of criminal justice programs
  • $5 billion for the Community Development Block Grant program to enable state and local governments to expand community health facilities, child care centers, food banks, and senior services

The CARES Act was phase 3 of the federal government’s legislative response to the COVID-19 pandemic.  Some members of Congress are already talking about phase 4, and when that happens, FMG will provide timely information about what it means for you.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CCPA, the CARES Act, Education Claims, Law Enforcement and the viruses’ impact on the Construction Industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

Challenges Begin to Coronavirus “Shelter In Place” Ordinances

Posted on: March 31st, 2020

By:  William J. Linkous, III

On March 24, 2020 a corporation “engaged in the business of purchasing, trading, and selling firearms, ammunition, tools, and other defensive and safety supplies to law enforcement and civilians” filed one of the first lawsuits in Georgia challenging a local government’s “Shelter in Place” ordinance.  The lawsuit, Clyde Armory, Inc. v. Unified Government of Athens-Clarke County et al., Athens-Clarke County Superior Court, lists the government entity as a defendant, as well as both the City/County Manager and the City/County Attorney in their official capacity as additional defendants.  The ordinance challenge is being brought “as applied” to Plaintiff, as well as “as applied” to other gun stores within the Athens-Clarke County jurisdiction.  The lawsuit brings challenges under both the Georgia Constitution, and the Federal Constitution, the latter of which raises the specter that the suit may be removed from Superior Court to Federal Court.

The lawsuit alleges that on March 16, 2020, Governor Brian Kemp declared a state of emergency in Georgia due to the COVID-19 virus pursuant to O.C.G.A. § 38-3-51.  It goes on to allege that on March 19, 2020, Athens-Clarke County passed its “Shelter in Place” ordinance pursuant to O.C.G.A. § 38-3-28.  The lawsuit alleges that although the ordinance might be interpreted to list gun stores as “Essential Activities” under the ordinance’s definition section, gun stores are not clearly listed as “Essential Businesses” allowed to remain open as normal during the state of emergency.  Interestingly, the lawsuit alleges that the City/County website indicates that gun stores are “Essential Businesses” that can remain open, but that the website does not have the force of law.

Calling the ordinance a quarantine, the lawsuit seeks an emergency injunction and declaratory judgment declaring the ordinance as an ultra vires act and an abuse of police powers.  It alleges that the ordinance legislates in an area for which the State of Georgia has enacted general laws in violation of O.C.G.A. § 36-35-3 (a) and complains that the ordinance cannot be appealed in the same manner as violations of state health regulations under state law.  It alleges more specifically that O.C.G.A. § 31-12-2.1 grants the Georgia Department of Public Health the primary responsibility for responding to public health emergencies.  The Plaintiff goes on to allege that the ordinance violates the Due Process and Equal Protection clauses of the U.S. Constitution and the Georgia Constitution, citing to Old South Duck Tours v. Mayor and Aldermen of City of Savannah, 272 Ga. 869 (2000).  The suit also contends that the language of the ordinance is overly broad and vague as to the term “Essential Business” (citing Bullock v. City of Dallas, 248 Ga. 164 (1991)), that the ordinance creates arbitrary and capricious classifications, exceeds the scope of the City/County’s police powers, and violates the U.S. Second Constitutional Amendment right to bear arms, as well as the Georgia Constitution’s similar protections under Article I, Section I, Paragraph VIII.  The lawsuit includes hints at a wider challenge of such ordinances, citing to Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71 (1988) and Truax v. Raich, 239 U.S. 33 (1915) for broader Due Process and Equal Protection concepts under the Fourteenth Amendment.

The lawsuit seeks a declaration that the ordinance is unlawful, and an injunction stopping its enforcement.  It also seeks a declaration that Plaintiff can carry on its business as normal as an “Essential Business,” and seeks attorneys’ fees and costs under 42 U.S.C. § 1988 but does not seek damages.  Ultimately, the resolution of this matter may come down to Federal law, perhaps to be decided in Federal Court.  The Georgia Supreme Court’s 2017 decision in Lathrop v. Deal, 301 Ga. 408 (2017) extended sovereign immunity to injunction and declaratory judgment claims against local governments where the constitutionality of their enactments is at issue, thus creating a possible barrier to the relief Plaintiff is seeking in the Clyde Armory case except as to the Federal claims.  Moreover, because in Georgia suits against local government officials in their official capacity are, in reality, suits against the local government itself, the inclusion of the local government Manager and Attorney would not seem to prevent the application of sovereign immunity to the claims.  In any event, it will be interesting to see whether the COVID-19 crisis ends before the Court can issue a definitive ruling in the Clyde Armory case.

Another lawsuit has been filed in Texas, challenging a “Shelter in Place” order issued by the Mayor of McKinney, Texas, although the basis of that lawsuit appears to be conflicting provisions of pandemic orders.  Last week, the NRA and other Second Amendment groups filed a Federal lawsuit in California to stop instances where local officials interpreted Governor Gavin Newsom’s “Shelter in Place” orders as making gun stores “non-essential.”  In addition, a coalition of gun-rights activists filed a lawsuit earlier this week against New Jersey Governor Phil Murphy under the Second Amendment to the U.S. Constitution for closing gun stores and suspending legally required background checks amid the pandemic.  The same activists are considering whether to file lawsuits against other states and cities that have deemed firearms retailers as “non-essential.”  Interestingly, according to news reports, guns sales have skyrocketed during the pandemic, while crime rates have dropped, particularly in large cities.  Abortion rights groups have also reportedly filed suit in Texas to keep abortion clinics from being designated as “non-essential” businesses.  Local government officials and attorneys should pay close attention as these lawsuits progress, and evaluate their orders and ordinances accordingly.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CCPA, the CARES Act, Law Enforcement and the viruses’ impact on the Construction Industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

More States are Following New Jersey’s Lead in Enacting Legislation to Require Insurers to Cover COVID-19 Losses

Posted on: March 31st, 2020

By: Erin Lamb and Ben Dunlap

FMG reported extensively after New Jersey began debating a bill that would force insurers to cover Business Interruption losses arising from COVID-19. The New Jersey bill would require courts to ignore virus and bacteria exclusions, or other policy language that might exclude such losses.

Now legislatures in other states are joining that effort.

New York:  Assemblyman Robert C. Carroll, whose district covers parts of Brooklyn including Park Slope, introduced A10266, an Act “requiring certain perils be covered under business interruption insurance during the coronavirus disease 2019 (COVID-19) pandemic.” The bill starts by saying it applies  “[n]otwithstanding any provisions of law, rule or regulation to the contrary.…” It goes on to decree that any policy of insurance insuring against loss or damage of property that includes the loss of use and occupancy and business interruption, must treat such interruption as a “covered peril” during a period of “declared state emergency due to the coronavirus disease 2019 (COVID-19) pandemic.”

The New York bill appears designed to nullify the 2006 ISO exclusion on losses for virus or bacteria. Assemblyman Carroll wrote an op-ed stating that it is “…unconscionable that insurance companies that were bailed out in 2008 won’t pay out… because they say ’viruses’ were either explicitly carved out of policies or because adjusters claim a ‘virus’ is not a ‘physical’ interruption.” Like the New Jersey bill, the New York law would apply to businesses with less than 100 eligible employees and calls for funds to be collected and made available for relief and reimbursement for insurers who must pay claims under this Act. Such funds would be collected from the insurance companies themselves in a special purpose apportionment. It would be retroactive to March 7, 2020.

Carroll is calling for the New York State Legislature to push off passing a state budget until COVID-19 related policy issues are addressed. Such a measure is essentially the only way that the law could pass in this legislative session, and it would still be subject to constitutional challenge.

Massachusetts: The Massachusetts legislature is considering another bill that attacks the virus exclusion, and states that “…no insurer in the commonwealth may deny a claim for the loss of use and occupancy and business interruption on account of (i) COVID-19 being a virus (even if the relevant insurance policy excludes losses resulting from viruses); or (ii) there being no physical damage to the property of the insured or to any other relevant property.”

The bill’s application is limited to policies issued to businesses in Massachusetts with 150 or fewer full-time employees. It would also apply only until the termination of the state of emergency declared in the Governor’s March 10, 2020 Executive Order 591.

The Massachusetts bill also creates a reimbursement process. Before it can be passed in the current session, the legislature must first grant the bill special emergency status.

To FMG’s knowledge, the Massachusetts bill is the first of its kind to tie COVID-19 denials to unfair practices. It specifically invokes the provisions of M.G.L. c. 176D, which regulates unfair practices by insurance companies, creating the potential for substantial penalties on insurers.

Ohio: HB No. 589 also would require insurers offering business interruption insurance to cover losses attributable to COVID-19.

If passed, the Ohio bill would provide that “every policy of insurance insuring against loss or damage to property, which includes the loss of use and occupancy and business interruption, in force in [Ohio] on the effective date of this section, shall be construed to include among the covered perils under that policy, coverage for business interruption due to global virus transmission or pandemic during the state of emergency.”

It also would require that “[t]he coverage required by this section shall indemnify the insured, subject to the limits under the policy, for any loss of business or business interruption for the duration of the state of emergency,” which the bill defines as “the state of emergency declared under Executive Order 2020-01D, issued on March 9, 2020, to protect the well-being of Ohio citizens from the dangerous effects of COVID-19.”

The bill would limit its effects only to insureds: (1) located in Ohio; and (2) who employ 100 or fewer eligible employees; and (3) are covered by a policy in force on the effective date of this section.

Like the other bills in this category, Ohio’s bill would allow insurers who pay applicable COVID-19-related losses to request from the Ohio Superintendent of Insurance “relief and reimbursement from funds collected and made available” for the purpose of the bill. Further, the bill would require the Superintendent to assess all Ohio insurers for the funds needed to satisfy eligible reimbursement claims.

Federal reaction: At the federal level, Congresswoman Mikie Sherill of New Jersey signed a bipartisan letter to the heads of various industry groups urging them to consider coverage of such claims. Sherill told The Daily Beast that Congress is monitoring the issue and may include specific aid for business interruptions in a future stimulus bill.

We will continue to see these bills rolled out as Covid-19 claims increase. We will likely see a second round of such bills in the fall, once the pandemic has ceased enough for Americans to begin to see the toll of Covid-19 losses on local restaurants and small businesses, particularly if Congress has not acted.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CCPA, the CARES Act, Law Enforcement and the viruses’ impact on the Construction Industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**