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Archive for the ‘Hospitality’ Category

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.** 

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.**

A Dog Walks Into a Bar with its Owner: Service Animals Welcome Accessories Please Leave at the Door

Posted on: October 9th, 2019

By: David Molinari

The Americans with Disabilities Act (ADA) provides people with disabilities equal access to employment, state and local government programs and goods and services.  Businesses open to the public including hospitality venues must comply with the ADA and are prohibited from discriminating against individuals with disabilities.  The ADA requires businesses (hospitality establishments) open to the public allow individuals to bring in their service animals even if the establishment has a “no pet” policy.

A trend encountered in the hospitality industry is clientele demanding the venue accommodate their pet who does not meet the requirements of a “service animal.”  Staff is often faced with an immediate decision that has rippling consequences; a possible violation of the ADA resulting in civil penalties, possible damages and an award of the opposing party’s attorney’s fees.

A service animal is any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability; including a physical, sensory, psychiatric, intellectual or other mental disability.  Service animals are working animals.  They are not pets.

Customers often blur the line with animals that provide emotional support, companionship or comfort.  These are not considered service animals because the animal does not perform a specific task associated with an individual’s disability.

The task performed by a service animal must be directly related to the disability of the person handling the animal.  Such tasks include, but are not limited to: guiding a person who is blind or has low vision, alerting a person with hearing loss, picking up or retrieving objects, alerting individuals to the presence of allergens, providing physical support or assistance with balance, assisting a person with psychiatric disabilities by interrupting impulsive behaviors.

For frontline staff dealing with customers in the hospitality industry, staff may not be able to immediately recognize a disability that is not obvious.  Therefore, staff should be trained to ask two questions: first, is the animal a service animal; and second, what task has the animal been trained to perform?

The hospitality venue and staff must refrain from asking about the nature or extent of the person’s disability, requesting the handler demonstrate the service animal’s task or requiring documentation proving the animal has been certified, trained or licensed.

A service animal must always be under the handler’s control.  Service animals must have harness, leash or other tether unless the handler’s disability prohibits such use or the animals’ task is adversely impacted by the use of a harness, leash or tether.

The hospitality venue must keep in mind that a service animal is a working animal; not a pet.  The staff must refrain from distractive actions around a service animal such as attempting to pet, feed or distract the animal.  Under no circumstances should the venue attempt to extract an extra fee or surcharge from a customer with a service animal.  This includes hotels that require a deposit for customers with pets, as well as restaurants, bars or other hospitality venues.

If a service animal is disruptive, threatening or not housebroken, the venue may ask the handler to remove the animal.  The venue must allow the individual with the disability the option of returning to the establishment without the animal.  Other customers who may have allergies or fears of dogs is not a valid reason for denying access to a disabled individual with a service animal.  The venue must try to separate the person with the allergy or other aversion from the disabled person with a service animal.

If further information is needed, please feel free to contact me at [email protected]com; (619) 687-3000.

Connecticut Governor Signs Anti-Indemnity Law for Snow and Ice Management Contracts

Posted on: July 23rd, 2019

By: Marc Finkel

Connecticut recently became the third state, joining Illinois and Colorado, to pass legislation prohibiting certain indemnity and hold harmless clauses within snow and ice management services contracts.  An Act Concerning Snow and Ice Control Services Contracts (“the Act”) was signed into law by Governor Ned Lamont on July 12, 2019.  The Act forbids a service receiver from including provisions within snow and ice removal contracts that: (1) requires a service provider to indemnify a service receiver for acts not required under the terms of a snow and ice removal contract; or (2) requires a service provider to hold a service receiver harmless for the acts or omissions of the service receiver or its agents or employees.

The Accredited Snow Contractors Association has championed the passage of this legislation and has advocated for the passage of similar legislation throughout the United States.  Anti-indemnity legislation, such as the Act, has the anticipated benefit of ensuring that property owners and/or managers maintain adequate treatment for their roadways and sidewalks following a snow or ice event by forbidding the transfer of contractual defense and indemnity for the property owner or manager’s own negligence.  Additionally, the Act could also help to lower insurance premiums for snow and ice removal contractors by limiting tenders of contractual defense and indemnity by property owners and/or management companies.

Josh Ferguson and Marc Finkel of Freeman Mathis and Gary will join Kevin Gilbride of the Accredited Snow Contractors Association to discuss the Act at ASCA Snow Academy: Operating Under the New Law on August 20, 2019 at the Hartford/Windsor Marriott Airport Hotel in Windsor, CT. We look forward to seeing you there.

For further information on the Act or for inquiries involving hospitality or premises liability law, please contact Marc Finkel at [email protected].

Colorado Limits Risk Transfer for Snow and Ice Management Services

Posted on: June 13th, 2018

By: Josh Ferguson

Colorado becomes the second state to recently pass an anti-indemnity bill regarding snow and ice management service contracts.  The Snow Removal Service Liability Limitation Act has passed in Colorado and been signed into law by the Governor. The Act provides that it is against public policy and void for a snow and ice removal contract to require a snow and ice management service provider or receiver to: (1) indemnify the other for their own acts or omissions; (2) hold the other harmless for their own acts or omissions; or (3) impose a duty to defend the other for their own acts or omissions. Similar legislation is pending in many other states as indicated by Accredited Snow Contractors Association President Kevin Gilbride.

The Accredited Snow Contractors Association has noted several anticipated benefits to this legislation for the snow and ice management contractors. First, prohibiting transfer of contractual defense and indemnity for a property owner or manager’s own negligence, the property owner and/or manager has an increased reason to make sure the roadways and sidewalks are adequately treated.  Additionally, a potential side effect this statute could have is lowering ever increasing insurance premiums for snow and ice removal contractors by avoiding those tenders of contractual defense and indemnity.

For further information or for further inquiries involving hospitality or premises liability law, you may contact Josh Ferguson of Freeman Mathis & Gary, LLP, at [email protected].