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Archive for the ‘Coronavirus – Government’ Category

Requests for Compassionate Release in the Era of COVID-19

Posted on: May 4th, 2020

By: Curt Graham

Correctional facilities across the country are facing unique challenges related to the COVID-19 pandemic. Some facilities have already reduced inmate populations in an effort to curb its effects. Additionally, courts are receiving an unprecedented number of requests for early release or modified sentences. A recent opinion from the United States District Court for the Eastern District of Kentucky examined an inmate’s request for a compassionate release due to coronavirus concerns.

In United States v. Cornett, No. 7:10-2-KKC, 2020 U.S. Dist. LEXIS 68878 (E.D. Ky. Apr. 20, 2020), an inmate filed an emergency motion for immediate release and argued his correctional institution was not taking adequate steps to protect prisoners from the virus. His motion was denied, as the Court found the inmate had not exhausted his administrative rights under the First Step Act of 2018. The First Step Act permits prisoners to file a motion for compassionate release on their own (as opposed to the Bureau of Prisons filing one on their behalf), but only if the prisoner has first “fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or if 30 days have lapsed since the warden of the defendant’s facility received the defendant’s request to file a motion on his behalf, whichever is earlier.”). Finding the exhaustion requirements were jurisdictional, the Court rejected the argument that these requirements should be waived in light of the dangers posed by COVID-19.

The Cornett opinion emphasized that in these unsettling times, “the exhaustion requirement of the compassionate release statute is perhaps most important,” because the Bureau of Prisons (BOP) is better positioned than the courts to first assess issues such as a defendant’s health, the adequacy of the measures taken by a particular place of incarceration to address any health risks, the risk presented to the public by a defendant’s release, and the adequacy of a defendant’s release plan.” The Court also observed that the BOP has begun a review of all inmates who have COVID-19 risk factors to determine which inmates are suitable for home confinement.

Given the ongoing COVID-19 concerns, courts will undoubtedly be flooded with similar requests for early release. However, statutory exhaustion requirements may bar such requests before they are ever heard on their merits. 

FMG attorneys Wesley Jackson, Ashley Hobson and Curt Graham will be presenting a webinar on Wednesday, May 13, 2020 from 1:00 – 2:15 p.m. EST entitled “COVID-19 in Custody: Practical Tips and Liability Considerations.” They will be joined by Edward Sweeney of Sweeney Corrections Consulting. This webinar will offer an in-depth discussion of the CDC Guidance on Management of COVID-19 in Correctional and Detention Facilities and will address various legal considerations relating to COVID-19 in the correctional setting.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include real estate issues, protecting business interruption losses, and more. Click here to view upcoming webinars.

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.**

Stay at Home Orders Under Attack – What are the Limits and Rights of State Governments?

Posted on: April 22nd, 2020

By: Marc Finkel

Faced with the uncertainty of navigating through a global pandemic, governors throughout the United States have issued a series of executive orders aimed at slowing the spread of the novel coronavirus.  Many of these executive orders have placed restrictions on our daily lives from the closure of schools to the closure of restaurants, movie theaters, and barbershops.  Since the beginning of March, as the number of positive cases of the novel coronavirus began to increase in different parts of the United States, the frequency of additionally restrictive executive orders aimed at “flattening the curve” of the novel coronavirus has increased as well.  Due to the varying degrees of restrictions that have been placed on some of our freedoms, there has been a recent uptick in court challenges to several of these executive orders. 

A recent illustration of this has started playing out in the State of Kansas, where Governor Laura Kelly issued Executive Orders 20-18 and 20-25 that modified prior executive orders placing certain restrictions on public activities and mass gatherings to include a prohibition against in-person religious gatherings of more than 10 people.  On April 11, 2020, the Kansas Supreme Court upheld Governor Kelly’s limitations on such in-person religious gatherings on state law grounds.  However, recently, United States District Court Judge for the District of Kansas, Hon. John W. Broomes, granted a temporary injunction on behalf of the First Baptist Church and Calvary Baptist Church that enjoins Executive Orders 20-18 and 20-25 from being further implemented on U.S. Constitutional grounds. 

In First Baptist Church, et al. v. Governor Laura Kelly, No. 20-1102-JWB, (April 18, 2020), Judge Broomes determined that the Plaintiffs met the standard for the issuance of a temporary restraining order by finding that Executive Orders 20-18 and 20-25 were not facially neutral in the restrictions it placed upon in-person religious assemblies.  The Court primarily based its decision on the fact that religious assembly was previously considered an essential public activity under the first wave of executive orders issued by Governor Kelly to combat the novel coronavirus pandemic in the State of Kansas, and that Executive Orders 20-18 and 20-25 were issued specifically to place restrictions on the right of in-person religious assembly.  The Court also found that the restrictions on the right of in-person religious assembly were likely not narrowly tailored, because the safety concerns that serve the basis of Executive Orders 20-18 and 20-25 are not dissimilar to safety concerns with respect to other secular mass gathering activities deemed essential under prior executive orders issued by Governor Kelly (e.g., mass gatherings at airports).  The Court noted, however, that those other secular mass gatherings are subjected to less restrictive conditions under Executive Orders 20-18 and 20-25.  Furthermore, as this is a matter that concerns a limitation on a person’s First Amendment rights, even if only for a minimal period of time, the Court found that the Plaintiffs risk irreparable injury for the purpose of obtaining a temporary restraining order.

Hearing on a permanent injunction as to Executive Orders 20-18 and 20-25 is scheduled for April 23, 2020.  The Court recognized the novel coronavirus presents an “unprecedented health crisis” that places on Governor Kelly an “immense and sobering responsibility” to protect the lives of Kansans.  Therefore, the Court in granting the temporary restraining order, expressly stated that it would “not issue any restraint, temporary or otherwise, if the evidence showed such action would substantially interfere with that responsibility.”  Accordingly, it is unclear whether the Plaintiffs will ultimately obtain a permanent injunction as to the implementation of Executive Orders 20-18 and 20-25.  In fact, a reading of the Court’s decision granting the temporary restraining order suggests that a more facially neutral limitation on the right to in-person religious assembly may pass constitutional muster.  This is a critical matter worth following, as the Court’s decision on whether to issue a permanent injunction will likely serve as a roadmap for deciding constitutional challenges to similar executive orders throughout the United States.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include returning to the workplace, business interruption coverage and more. Click here to view upcoming webinars.

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.**

Federal Judge Refuses to Enjoin Kentucky Governor from Restricting Interstate Travel

Posted on: April 6th, 2020

By: Barry Miller

A federal judge has refused to halt enforcement of an order that directed Kentuckians not to travel outside the state for two weeks because of COVID-19.

Governor Andy Beshear issued the order on March 30. It makes exceptions for those traveling to meet work requirements, buy necessary supplies, seek health care, or provide care for the elderly or disabled.

Plaintiff Allison Alessandro sued the governor in the United States District Court for the Eastern District of Kentucky on April 2. She filed her motion for a temporary restraining order with her complaint.

That motion argued that the right of interstate travel is “virtually unqualified,” and because this constitutional right was being impaired, irreparable injury is presumed. Judge Gregory Van Tatenhove said Alessandro still must show that any harm to her is immediate. He said he desire to visit friends and family in Ohio failed to satisfy that requirement.

Ms. Alessandro resides in Campbell County, Kentucky, which is on the Ohio border.

Judge Van Tatenhove also questioned whether Alessandro had shown irreparable harm. Because Ohio has also restricted travel it was not clear that enjoining Beshear’s travel order would give her a remedy.

The order also discussed a balance of harms, saying that enjoining the order might substantially harm other citizens, particularly those more vulnerable to COVID-19. Typically, if a law is unconstitutional, there is no harm to others by enjoining it, Judge Van Tatenhove wrote. The judge stated his review was preliminary. “In-depth consideration of the constitutional issues at play will require additional briefing from the parties,” he wrote, noting that the Commonwealth had not yet briefed those issues. He scheduled a telephonic conference with the parties for Monday.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include employment issues, the real-world impact of business restrictions, education claims and more. 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.**

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.**