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Archive for the ‘Coronavirus – Healthcare’ Category

Telemedicine in a Time of Crisis

Posted on: March 31st, 2020

By: Shaun Daugherty

Social distancing has become a new phrase in our lexicon which has specific meaning and pervasive general understanding within the population.  Telemedicine seems like the ideal format for delivery of certain medical services during the emergency period caused by COVID-19.  However, pre-emergency regulations, restrictions and requirements for qualification and reimbursement to telehealth providers greatly reduced access to these kinds of services.  The CARES Act has taken aim at suspending many of these prior limitations on access and reimbursements to open much needed medical care to those that are in the most need. 

During the existence of the current medical emergency, Medicare beneficiaries are temporarily granted access to telemedicine services in several ways.  Previously, to provide medical services via telemedicine, the provider must have seen and treated the patient within the last three years.  In addition, the pre-emergency restrictions also required stringent real-time audio-visual technology be available on both ends of the service.  The new law temporary lifts and eases these restrictions and opens up the options for services to a broader base of patient.  Now, both new patients and existing patients can take advantage of telemedicine.  No longer does one need to be an established patient for a telemedicine visit.  Additionally, the provider does not have to be compliant with the strict real-time audio-visual requirements as before and things such as FaceTime or Skype calls are permissible. In certain instances, audio only visits are allowed as long as no images are being reviewed.  This is especially useful in those places where there may be limitations in the technology available as well as the functional limitations of those receiving the care. 

The new law temporarily allows for hospice recertification without a face-to-face visit and home dialysis patients to receive periodic evaluations using the telehealth technologies.  The geographic or location restrictions for providers of telemedicine services are also temporarily lifted.  Previously, the regulations limited reimbursements for Rural Health Clinics (RHC) and Federally Qualified Health Clinics (FQHC) to only those services defined as a face-to-face encounter.  The current Act lifts these restrictions and allows for Medicare to reimburse for telemedicine services provided by these RHCs and FQHCs.  The Act also provides the HHS Secretary with the authority to relax additional statutory restrictions on telehealth services to be covered by Medicare. 

Of the $2 trillion total allocated in the CARES Act, $14.4 billion has been specifically earmarked to increase the access of telemedicine to patients of the Veterans Administration facilities throughout the country.  An additional $2.15 billion has been allocated to the Department of Veterans Affairs Information Technology to improve the infrastructure and increase the capabilities to deliver these types of healthcare services.  This is on top of the $27 billion allocated to the HHS’ Public Health and Social Services Emergency Fund to address increased access and infrastructure for telehealth generally. 

Opening the access to telemedicine services will hopefully help reduce the current strain on the healthcare communities by allowing providers to access patients remotely without exposing themselves or their patients to risks that could be avoided.  Those patients in remote or otherwise restricted locations can be screened and, in some instances, treated with the use of a smartphone.   While these measures are only temporary, the hope of many organizations that promote telemedicine is that it will pave the way for a more meaningful method of delivery of telemedicine services into the future. 

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.** 

Practice of Medicine Without a License in Georgia Under COVID-19

Posted on: March 30th, 2020

By: Shaun Daugherty

In the early evening hours of March 23, Georgia’s Governor Kemp signed an executive order addressing the current medical crisis that has developed due to the novel coronavirus, COVID-19.  Under this executive order, any “administrative rules that prohibit the practice of medicine, surgery, osteopathic medicine and osteopathic surgery” without a current license will not be enforced.  This only pertains to those individuals whose license has been inactive or lapsed within the last five (5) years, have no ongoing investigations and have had no history of administrative action adverse to the licensee.  The suspension of the enforcement of these provisions is limited to the treatment “of victims of the existing public health emergency and solely for the duration of the Order.” 

In addition, the Governor has permitted the Georgia Board of Nursing to grant temporary licenses to those registered nurses (RN) and practical nurses (PN) who have completed their training, but have yet to take and pass the licensing exam.  These temporary licenses will allow the graduates to work “under a licensed registered nurse or licensed practical nurse” during the effective dates of the Order.  This has generated Policy 1.16 from the Georgia Board of Nursing regarding the process and procedure of applying for the temporary permit.  This also allows nursing professionals from out of state to apply for and obtain temporary permits as well. 

Basically, if you have recently retired or allowed your medical license to lapse for other reasons, you are allowed to jump in and help provide medical care and treatment to those infected or suspected to be infected with the virus and not be charged with practicing medicine without a license.  That is as long as your last license was unencumbered and without prior adverse administrative action.  In addition, if you have recently graduated from nursing school and have not yet completed your licensing exams for this state, you too can practice immediately, under the supervision of an already licensed RN or LPN.  Applications for the emergency temporary permits can be found at the Georgia Board of Nursing website at https://sos.ga.gov/index.php/licensing/plb/45/emergency_temporary_permits

These provisions are clearly meant to address the growing shortage of health care providers available to treat the pandemic that has developed.  The next step is going to be finding places for them to treat the patients.  If you have any questions, please contact Shaun Daugherty at [email protected]

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.** 

Federal Government Issues New CMS Guidance To Protect Nursing Home Residents From COVID-19

Posted on: March 30th, 2020

By: Kevin G. Kenneally, Michael P. Giunta and William E. Gildea

Nursing home and skilled nursing facilities have been particularly hard hit by the COVID-19 virus.  The resident populations are uniquely vulnerable and outbreaks in facilities nationwide have sparked actions to protect elderly and disabled residents.

The Centers for Medicare & Medicaid Services (“CMS”) provided new guidelines in a memorandum detailing protections for nursing home residents from COVID-19.  CMS recommends that all facilities restrict visitation of all visitors and non-essential health care personnel, absent certain compassionate care situations.  This follows on the heels of the preliminary results of the inspection of the Kirkland, Washington nursing home, which was the epicenter of the COVID-19 outbreak.  In addition to a focused inspection process provided to all facilities and inspectors, which is designed to ensure each facility is prepared to prevent the spread of the virus, the memorandum addresses additional guidance. If an individual enters a facility for a compassionate care situation, facilities should require visitors to perform hand hygiene and use Personal Protective Equipment like facemasks.  Decisions about visitation during these situations should be made on a case by case basis after careful screening of the potential visitor.  Facilities are expected to notify potential visitors to defer visitation until further notice. 

The memorandum lists specific guidelines that facilities should adhere to, including but not limited to: (1) cancelling communal dining and all group activities; (2) performing active screening of residents and staff for fever and respiratory symptoms; (3) reminding residents to practice social distancing and perform frequent hand hygiene; (4) screening all staff at the beginning of their shift for fever and respiratory symptoms; and (5) identify staff that work at multiple facilities and actively screen and restrict them appropriately.  The memorandum further discusses how facilities should consider hygiene and monitoring symptoms for persons entering/exiting facilities.  Facilities are encouraged to review and revise how their vendors deliver supplies, such as implementing dedicated drop-off locations for supplies at facilities.  If a nursing home has a resident suspected of having COVID-19, it should contact their local health department immediately. 

Instead of visits, facilities should consider offering alternative means of communications and assigning staff as primary sources of contact for residents.  If an individual enters a facility for a compassionate care situation, facilities should require visitors to perform hand hygiene and use Personal Protective Equipment like facemasks.  Decisions about visitation during these situations should be made on a case by case basis after careful screening of the potential visitor.  Facilities are expected to notify potential visitors to defer visitation until further notice.

The March 13, 2020 memorandum, in part, calls for facility staff to regularly monitor the Centers for Disease Control’s (“CDC”) website for additional information and resources. CMS recommends that facilities perform frequent monitoring for potential symptoms of respiratory infection.  The facilities should further maintain a “person-centered approach to care,” which includes communicating effectively with residents, resident representatives and/or family and further understanding the individual needs and goals of care for residents.  If a facility experiences an increased number of respiratory illnesses (regardless of suspected etiology), it should immediately contact their local or state health department for further guidance.

State governments closely regulate nursing homes, and many are issuing state specific guidance.  If a state government implements actions that exceed CMS requirements through an executive order, the facility will not be out of compliance with CMS’ requirements.  The memorandum further states that “State and Federal surveyors should not cite facilities for not having certain supplies (e.g., PPE such as gowns, N95 respirators, surgical masks and ABHR) if they are having difficulty obtaining supplies for reasons outside of their control.”  However, CMS still expects “facilities to take actions to mitigate any shortages and show they are taking all appropriate steps to obtain the necessary supply as soon as possible.”

The memorandum provides the following email address for a point of contact: [email protected].

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.**

HHS Waives Some HIPAA Sanctions During the Coronavirus Pandemic

Posted on: March 20th, 2020

By: David Cole

The HHS Office for Civil Rights (OCR) issued two important bulletins this week in response to the coronavirus pandemic. Each one announced that OCR will temporarily waive certain sanctions and penalties for noncompliance with HIPAA Rules to help deliver care to people in need.

Limited Waiver for Privacy Rule Requirements

First, OCR issued a Limited Waiver of HIPAA Sanctions and Penalties for not complying with certain parts of the Privacy Rule. Specifically, the Waiver says that healthcare providers will not be sanctioned or penalized for not complying with the following usual requirements:

  • The requirement to obtain a patient’s consent before speaking with family members or friends involved in the patient’s care;
  • The requirement to honor a request to opt-out of the facility directory;
  • The requirement to distribute a Notice of Privacy Practices;
  • The patient’s right to request privacy restrictions; and
  • The patient’s right to request confidential communications.

The Waiver became effective on March 15, 2020, but currently only applies (1) in the emergency area identified in the public health emergency declaration; (2) to hospitals that have instituted a disaster protocol; and (3) for up to 72 hours from the time the hospital implements its disaster protocol. It is unclear if OCR will extend the time for this Waiver given the widespread and potentially prolonged nature of the coronavirus outbreak. A copy of the bulletin is available here.

Video Technology Allowed for Telemedicine

Second, OCR issued a Notification of Enforcement Discretion allowing healthcare providers to use “any non-public facing remote communication product that is available” to communicate with patients to provide telehealth during the coronavirus national emergency. As examples, OCR said it will allow healthcare providers to use video chat application like Apple FaceTime, Facebook Messenger, Google Hangouts, or Skype, to provide telehealth without risk of penalty for noncompliance with HIPAA Rules. However, Facebook Live, Twitch, TikTok, and other similar public-facing video applications are not allowed. Healthcare providers are still expected to enter into Business Associate Agreements with the technology companies providing the video communication services, but OCR says it will not impose penalties for failing to do so during the time of the national emergency. A copy of the Notice is available here.

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. 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 educational 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.** 

U.S. Department of Labor Issues COVID-19 Guidance on FLSA and FMLA

Posted on: March 20th, 2020

By: Catherine Scott

As the federal government continues to grapple with questions from employers regarding COVID-19, the federal agencies have begun to roll out new guidance. The latest comes from the U.S. Department of Labor (DOL), which has issued guidance for employers seeking answers concerning their obligations pursuant to the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA).

DOL Guidance for FLSA

The FLSA provides rules and regulations concerning how employees must be paid, including the payment of wages and overtime. Employers around the country have wrestled with whether they can reduce salary and/or hours or furlough or lay off employees as the economy slows down due to COVID-19 and whether employees are required to be paid and in what manner.

The DOL has answered several frequently asked questions concerning these issues. The latest guidance provides as follows:

  • For non-exempt, hourly employees, employers can reduce their hours and/or pay, so long as minimum wage and overtime requirements are met. Non-exempt, hourly employees also can be placed on an unpaid leave of absence or furlough or be laid off due to an economic slowdown;
  • For exempt employees, employers are generally required to pay these employees their full weekly salary if any work is done during the workweek (subject to exceptions, such as when the employer is open for business and an employee, who has no PTO remaining or hasn’t qualified, misses an entire day of work).  Of course, exempt employees can be required to use any accrued, unused vacation or paid time off under the FLSA for any missed time so long as they are still being paid their salary.
  • All employees must generally be paid for telework performed at home, subject to the limitations described above;
  • Employees of private organizations are generally not allowed to volunteer their normal services without pay, subject to a few limited exceptions. Employees may volunteer for public organizations without pay if they (a) perform such services for civic, charitable or humanitarian reasons without promise, expectation, or receipt of compensation; (b) offer their services freely and without coercion, direct or implied; and, (c) are not otherwise employed by the same public agency to perform the same services as those for which they propose to volunteer.

Pay issues can be complicated and very fact-specific (and state-specific) so if you have a question about furloughs, layoffs, or schedule or compensation reductions (whether temporarily or permanently), please contact us so we can assess the individual factual and legal circumstances of your situation.

DOL Guidance for FMLA

Similarly, employers have wrestled with their obligations under the FMLA and whether they must provide job-protected leave to employees who need time away for a qualifying reason.  Initially, it is important to understand that any employer that has between 50 – 500 employees should first familiarize itself with the Families First Coronavirus Response Act as that Act (which will be effective April 2, 2020) substantially expands some of the obligations traditional imposed on employers under the FMLA.  For those employers, however, that are below 50 or above 50 employees, you should keep the following principles in mind in dealing with the Coronavirus.

  • Employees who develop complications from COVID-19 may have a “serious health condition” that would trigger FMLA leave. The same is true of a “family member,” defined by the FMLA as a spouse, child, or parent, who develops complications from COVID-19;
  • However, leave taken by an employee to avoid exposure to COVID-19 would not be covered by the traditional principles of the FMLA;
  • The traditional FMLA does not currently cover employees who require leave to tend to healthy children or children who have been dismissed from school or childcare by their state governments;
  • The traditional FMLA provides only for unpaid leave to employees who qualify; however, the FMLA allows for employees to substitute paid leave in place of unpaid leave in certain circumstances and if the employer’s policies provide for such paid leave;
  • Employees seeking to use FMLA leave are required to provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable.  In addition, employers may require employees to provide:
    • medical certification supporting the need for leave due to a serious health condition affecting the employee or a spouse, son, daughter or parent, including periodic recertification;
    • second or third medical opinions (at the employer’s expense);
    • periodic reports during FMLA leave regarding the employee’s status and intent to return to work; and
    • consistent with a uniformly-applied policy or practice for similarly-situated employees, a fitness for duty certification. (Employers should be aware that fitness-for-duty certifications may be difficult to obtain during a pandemic.)

The Department of Labor is generally encouraging employers to be flexible in dealing with situations involving employees affected by COVID-19, including re-examining both paid and unpaid leave policies in place at the employer and allowing paid telecommuting to occur.

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. 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 educational 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.**