Thursday, March 26, 2020

COVID: Office for Civil Rights Issues Guidance on How Covered Entities May Disclose PHI About an Individual Infected/Exposed to COVID-19

Written by Bob Coffield, Flahety Sensabaugh Bonasso PLLC

On March 24, 2020, the Office for Civil Rights (OCR), U.S Department of Health and Human Services issued the following guidance document related to the ongoing COVID crisis, COVID-19 and HIPAA: Disclosures to law enforcement, paramedics,other first responders and public health authorities.

The OCR guidance indicates that covered entities (hospitals, physicians, long term care facilities, home health agencies, and other providers) may disclose protected health information (PHI) about an individual who has been infected with or exposed to COVID-19 to law enforcement, paramedics, other first responders, and public health authorities in compliance with the Health Insurance Portability and Accountability Act of 1996 under the Privacy Rule  (HIPAA). The PHI can be disclosed by the covered entity without first obtaining the individual's HIPAA authorization. 

The guidance explains the circumstances under which a covered entity may disclose PHI such as the name or other identifying information about individuals, without their HIPAA authorization, and provides examples including:
  • When needed to provide treatment;
  • When required by law;
  • When first responders may be at risk for an infection; and
  • When disclosure is necessary to prevent or lessen a serious and imminent threat.
This guidance clarifies the regulatory permissions that covered entities may use to disclose PHI to first responders and others so they can take extra precautions or use personal protective equipment. The guidance also includes a reminder that generally, covered entities must make reasonable efforts to limit the PHI used or disclosed to that which is the "minimum necessary" to accomplish the purpose for the disclosure. 

Examples outlined in the guidance include the following: 
  • HIPAA permits a covered skilled nursing facility to disclose PHI about an individual who has COVID-19 to emergency medical transport personnel who will provide treatment while transporting the individual to a hospital’s emergency department. 45 CFR 164.502(a)(1)(ii); 45 CFR 164.506(c)(2).
  • HIPAA permits a covered entity, such as a hospital, to disclose PHI about an individual who tests positive for COVID-19 in accordance with a state law requiring the reporting of confirmed or suspected cases of infectious disease to public health officials. 45 CFR 164.512(a). 
  • HIPAA permits a covered entity to disclose PHI to a public health authority (such as the Centers for Disease Control and Prevention (CDC), or state, tribal, local, and territorial public health departments) that is authorized by law to collect or receive PHI for the purpose of preventing or controlling disease, injury, or disability, including for public health surveillance, public health investigations, and public health interventions. 45 CFR 164.512(b)(1)(i); see also 45 CFR 164.501 (providing the definition of “public health authority”).
  • HIPAA permits a covered county health department, in accordance with a state law, to disclose PHI to a police officer or other person who may come into contact with a person who tested positive for COVID-19, for purposes of preventing or controlling the spread of COVID-19. 45 CFR 164.512(b)(1)(iv).
  • HIPAA permits a covered entity, consistent with applicable law and standards of ethical conduct, to disclose PHI about individuals who have tested positive for COVID-19 to fire department personnel, child welfare workers, mental health crisis services personnel, or others charged with protecting the health or safety of the public if the covered entity believes in good faith that the disclosure of the information is necessary to prevent or minimize the threat of imminent exposure to such personnel in the discharge of their duties. 45 CFR 164.512(j)(1).
  • HIPAA permits a covered entity, such as a physician, located at a prison medical facility to share an inmate’s positive COVID-19 test results with correctional guards at the facility for the health and safety of all people at the facility. 45 CFR 164.512(k)(5).
  • A covered entity, such as a hospital, may provide a list of the names and addresses of all individuals it knows to have tested positive, or received treatment, for COVID-19 to an EMS dispatch for use on a per-call basis. The EMS dispatch (even if it is a covered entity) would be allowed to use information on the list to inform EMS personnel who are responding to any particular emergency call so that they can take extra precautions or use personal protective equipment (PPE). Under this example, a 911 call center that is a covered entity should only disclose the minimum amount of information that the officer needs to take appropriate precautions to minimize the risk of exposure. Depending on the circumstances, the minimum necessary PHI may include, for example, an individual’s name and the result of the screening.
For more information on HIPAA and COVID-19, see OCR's February 2020 Bulletin, Office for Civil Rights, U.S. Department of Health and Human ServicesBULLETIN: HIPAA Privacy and Novel Coronavirus.

Wednesday, March 25, 2020

COVID-19: Small Business Administration Implementing Automatic Deferment on Payments Through the End of 2020

Additional relief was announced on Monday, March 23, 2020, by the U.S. Small Business Administration (“SBA”) for borrowers of home and business disaster loans currently in repayment. To assist borrowers who are repaying SBA loans from past disasters, the SBA is implementing a deferment on payments through the end of 2020.  The deferment is automatic, so borrowers of business and home disaster loans do not have to contact the SBA to request the deferment.

Written by Bryan Price of Flaherty Sensabaugh Bonasso, PLLC

West Virginia COVID-19 Pandemic - Listing of Health Care and Legal Resources

Prepared and updated by Amy McLaughlin and Bob Coffield, Flaherty Sensabaugh Bonasso PLLC
LAST UPDATED: 3/26/2020

We all are working to adapt to the volatile and fluid nature of the changes brought on by the COVID-19 pandemic. I hope this post finds you well, at your home and social distancing. Mountaineers are always free (montani semper liberi), but today and going forward please follow the "stay at home" order issued by the State of West Virginia. Let's bend and flatten this curve West Virginians along with the help of all humans around our globe.

It remains difficult to grasp and stay up to date on the fluid nature of the changing information relevant to our health care and business clients. The legal and regulatory landscape is in constant flux and a lot of questions are arising from our clients. As our health care law team works remotely to stay connected, share information, and attempts to analyze the most recent changes from the various state and federal agencies which regulate and oversee health care providers and the industry, we have pulled together this "resource" page post. We are regularly checking these various aggregation points for new or updated information that are specifically related to West Virginia. We thought it would be valuable to have an access point where not only we can go, but the general public can go, to access the latest information. 

We will be adding and updating these resources as we go forward. If you know of any resource that we have not included, please leave a comment or send us an email. We will assess the information and consider adding it to the resource materials.

COVID-19 Data Resources and Real Time Tracking of the COVID-19 Crisis:
State of West Virginia Health Care Regulatory Agencies and Departments (including a short description of the scope of each agency/department along with a list of current COVID resources):
  • Office of Health Facility Licensure and Certification (OHFLAC)OHFLAC’s primary functions are processing licensure application and investigating complaints filed against its regulated health care facilities. OHFLAC supervises eight programs: Administration; Behavioral Health Program; Chronic Pain Management Clinic Program; Life Safety Program; Medicare/Hospital Program; Nurse Aide Program; Nursing Home Program; and Assisted Living Program.
    • 3/12/2020 announcement in response to COVID-19, including reporting requirements for all West Virginia providers to report "any postive COVID-19 illness in patients/residents/clients and employees to the local health department and OHFLAC". The notification requirements and information that must be reported are listed on this announcement.
  • Office of the West Virginia Attorney GeneralThe Office of the Attorney General is responsible for prosecuting and defending legal actions on behalf of the State, and for ensuring that the rights of the State and its citizens are protected in matters before the circuit courts of this State, the West Virginia Supreme Court of Appeals, and all federal courts. The Attorney General is entrusted with enforcing the laws of the State as they relate to consumer protection, unfair trade practices, civil rights, and other important areas
    • No current information/updates.
  • West Virginia Board of MedicineThe WVBOM is the state agency charged with protecting the health and safety of the public through licensure, regulation and oversight of medical doctors (MDs), podiatric physicians (DPMs), and collaborating physician assistants (PAs). The WVBOM is the sole authority for the issuance of licenses to practice medicine and surgery, to practice podiatry, and to practice as a physician assistant in collaboration with MDs and DPMs in West Virginia. The WVBOM is the regulatory and disciplinary body for medical doctors, podiatric physicians and their physician assistants
  • West Virginia Board of Occupational Therapy: The West Virginia Board of Occupational Therapy regulates and licenses persons providing occupational therapy services to the general public in the State of West Virginia. The Board's purposes are to protect consumers and promote quality of occupational therapy services, and to assure the highest degree of professional care and conduct on the part of occupational therapist and occupational therapist assistants. 
    • West Virginia Board of Physical Therapy: The WVBOPT is a state regulatory board created by the WV Legislature to regulate the practice of physical therapy and athletic training in order to protect the public from the unauthorized, unqualified and unregulated practice of physical therapy. The WVBOPT is a part of the Executive Branch of the Government which enforces laws
    • West Virginia Registered Nursing Board: The WV RN Board promotes and protects public health, safety, and welfare through the regulation of registered professional nurses, advance practice registered nurses and dialysis technicians. The WV RN Board also oversees the prescriptive authority privileges through collaborative practice agreements.
      • COVID-19 Information. Per this summary, the West Virginia RN Board by vote, has suspended some rules to expedite licensure. These rule suspensions are TEMPORARY in nature and all suspended requirements will have to be fulfilled after the emergency order is lifted.
        • Bullet Points for Board Voted Suspended Rules On Friday, March 20, 2020:
          • A Criminal Background Check (CBC) will still be required. However, if the facility where the applicant would go is closed and there isn’t one within a 50 mile radius then the applicant does NOT have to get the CBC. The applicant would have get the CBC as soon as other fingerprinting resources are available or within 30 days of the lifting of the State of Emergency, whichever comes first.
          • The temporary permit (TP) is extended for more than 90 days. Therefore, the applicant would be able to have a temporary permit for more than 90 days. This applies to both exam applicants and endorsement applicants.
          • Verifications do not have to be requested by applicants through NURSYS. The Board will utilize NURSYS and individual state websites.
          • For limited prescriptive authority, the applicant does not have to provide documentation of pharmacotherapy in the clinical practice.
          • Reinstatement applicants will not have to provide continuing education.
        • Bullet Points from the Governor’s Signed Executive Order on Monday, March 23, 2020:
          • If a person is licensed in another state as a RN or APRN a WV license is NOT required to practice in WV as long as disciplinary action hasn’t been taken or there is none pending.
          • There is no renewal of licenses.
          • CRNAs can administer anesthesia without supervision.
          • APRNs with prescriptive authority do not need a collaborative physician.
          • No limitation on prescriptive writing privileges for APRNs with prescriptive authority as to prescriptive formulary limitations, prescriptive refill and supply limitations.
          • Continuing education not required for APRNs.
          • Disciplinary timelines for hearings are waived and may be conducted by telephone at the discretion of the agency.
    • West Virginia State Board of Examiners for Licensed Practical Nurses: The WV LPN Board is a legally constituted agency of State government established by the West Virginia Legislature. The Board promotes and protects the public health, safety and welfare through licensure of practical nurses
      • Notice: The West Virginia LPN Board is instituting policies of social distancing to make our workplace as safe as possible. Staff who are able to perform their duties from home are working remotely. For a quicker response please use the message center in the nurse portal.
    • West Virginia State Tax Department: The State Tax Department’s primary mission is to collect and accurately assess taxes due to the State of West Virginia in support of State services and programs.
      • Coronavirus 2019 (COVID 19) Response
      • 3/25/2020 letter by Senate President Carmichael and House Speaker Hanshaw among other West Virginia Legislators requesting Governor Justice to issue an Executive Order extending the deadline for filing state income tax returns in West Virginia from April 15 to July 15. (via @BradMcElhinny tweet).
      • In his press conference held at 3:00 PM, March 25, Governor Jim Justice stated, “I have instructed State Tax Commissioner Dale Steager to extend the West Virginia state tax filing and payment deadline to July 15, 2020, to align with the Federal tax filing deadline.” The Administrative Order will be posted on the State Tax Department’s website at tax.wv.gov by end of day tomorrow, March 26.
    West Virginia Hospitals and Health Care Systems Information: 
    • Charleston Area Medical Center (CAMC)

    Tuesday, March 24, 2020

    Municipal Law: Navigating the West Virginia Open Governmental Meetings Act in Response to COVID-19

    Municipal Law: Navigating the West Virginia Open Governmental Meetings Act in Response to COVID-19

    By James V. Cann and Michael Secret, Flaherty Sensabaugh Bonasso PLLC

    On March 23, 2020, Governor Jim Justice issued an executive “Stay-at-Home” home order, officially known as Executive Order 9-20, in an attempt to further combat the spread of COVID-19 within West Virginia. However, municipal governments may be left asking themselves what impact this will have on their ability to hold meetings and make decisions to best benefit their citizens. Below is a quick guide to the requirements for a meeting under the West Virginia Open Governmental Meetings Act (“the Act”) and how these requirements can be met in consideration of COVID-19.

    First and foremost, municipal government is included as “essential business” under Section 3, Subsection (d) of Governor Justice’s executive order. Therefore, municipal decision-making bodies are still permitted to meet in light of West Virginia’s attempts to combat COVID-19. However, many municipalities may feel the need to hold their meetings in a way that limits in-person contact between citizens while still allowing citizens to take part in and observe municipal government functions.

    A “meeting” covered by the Act is a convening of a quorum of a governing body or subcommittee to make a decision or deliberation towards a decision. If this discussion takes place outside the confines of a public meeting—whether in person, by telephone, email or other telecommunication means — it is an illegal meeting. Therefore, a municipal decision-making body cannot make decisions unless it is in the public eye. This can obviously cause some public safety issues when considering meeting in spite of COVID-19.

    However, the Act simply requires municipal governing bodies to meet in open session where citizens may observe the proceedings in a reasonably accessible setting. Meetings by telephone, video, or webcast are still allowed if the public is reasonably able to participate. Any effort to hold a public meeting by remote means should be communicated clearly in the meeting agenda, with the procedure to access the meeting laid out.

    COVID-19 Emergency Response and Information by the Supreme Court of West Virginia, West Virginia State Bar and Other Legal Agencies

    COVID-19 Emergency Response and Information by the Supreme Court of West Virginia, West Virginia State Bar and Other Legal Agencies

    Written by Bob Coffield, Flaherty Sensabaugh Bonasso PLLC

    As a result of the ongoing COVID-19 pandemic, the Supreme Court of West Virginia, the West Virginia State Bar and other state agencies have taken various actions and issued orders in response to the ongoing COVID-19 crisis. Below are website resources, orders and summary of some of the actions taken in response. This list is not comprehensive and is likely subject to change in the coming days and months. Please advise me of any additional information or resources in the comments. Thanks to the West Virginia State Bar Blast for pushing out some of this information. I recommend that lawyers and law firms providing legal services in West Virginia regularly check the websites of both the Supreme Court and the West Virginia Bar for the latest updated information.
    • Supreme Court of West Virginia - Pandemic Response Documents. The following documents are being issued to govern operations by courts throughout the State of West Virginia in order to protect the health and well-being of court employees, litigants, witnesses, jurors, attorneys, and the general public. 
      • Administrative Order Re: Judicial Emergency Declared, March 22, 2020. This Administrative Order declares a judicial emergency in all 55 counties in West Virginia from March 23, 2020 through April 10, 2020. Pursuant to West Virginia Code 2-2-2(a), all proceedings and court deadlines, except emergency proceedings, directed to take place or any act required to be done on any day falling within this period of judicial emergency, are stayed. Deadlines in court rules, statutes, ordinances, administrative rules, scheduling orders, or otherwise that are set to expire between March 23, 2020 and April 10, 2020, are extended to April 11, 2020. Statutes of limitations and statues of repose that would expire during such period are extended to April 11, 202. Proceedings previously scheduled between these dates are continued generally until a later date determined by the presiding judicial officer. The Court may extend this order in the event the public health crisis continues. 
      • Administrative Order, Supreme Court of Appeals of West Virginia, March 16, 2020. This Administrative Order applies to all courts of West Virginia from March 16, 2020 through April 10, 2020, and requires that all civil and criminal trials, and jury orientations scheduled during this time shall be continued generally, except where a criminal defendant's speedy trial rights may preclude continuation. The Administrative Order outlines emergency matters, including domestic violence petitions, child abuse and neglect petitions, mental hygiene petitions. Further, it provides that all hearings shall either be postponed or held by telephonic or video technology. Judicial office or clerk's offices around the state shall remain accessible by telephone and email to the extent possible if closed to the public. 
      • COVID-19 Planning Document, Supreme Court of Appeals of West Virginia, March 12, 2020. This document provides direction from the Supreme Court of Appeals of West Virginia to all court systems, court affiliates, and court personnel throughout West Virginia, The Courts and the judicial system shall remain open and function as normally as possible absent specific direction from the Supreme Court of Appeals of West Virginia.
    • West Virginia State Bar - WV State Bar COVID-19 Response Plan (Updated March 20, 2020). This provides lawyers, law firms and judicial officers/staff various resource materials related to the pandemic preparedness., including vendors for teleconference/video conferencing platforms, virtual work policies/guides, virtual client services, virtual meeting tips, etc. 
    • West Virginia State Bar - Temporary Waiver of Online Continuing Legal Education Credit Limit, issued March 12, 2020. Click here for full Order In re: Temporary Waiver of Online CLE Credit Limitation, No.20-Rules-02. The Supreme Court of Appeals of West Virginia granted a request from the Mandatory Continuing Legal Education Commission for a temporary waiver of current CLE rules and regulations which limit the CLE credits for online and in-house credits to 12 credits, or half of the mandatory continuing legal education requirements. Attorneys will now be able to earn all or any portion of the required 24 CLE credit minimum through video, audio, correspondence, telephone seminars, computer-based training courses and in-house instruction, so long as the courses otherwise satisfy the requirements of the CLE rules and regulations and are approved for CLE credit in West Virginia. The temporary waiver is limited to the 2018-2020 reporting period ending June 30, 2020. 
    • West Virginia Division of Corrections and Rehabilitation COVID-19 Policy. The West Virginia Division of Corrections and Rehabilitation has suspended all non-lawyer visitation at all West Virginia correctional facilities.  Attorneys will still be able to visit their client in person, but will be subject to a screening process (questions and observation) to determine if they have symptoms of the Coronavirus.  Attorneys that do not want to consult or visit in person may meet with their client via video conferencing.  The attorney will need to make arrangement with the correctional facility.
    • Social Security Administration COVID-19 Policy. The Social Security Committee Chairperson has advised the State Bar that in an effort to stop the spread of Coronavirus/ COVID - 19, the Social Security Administration, Office of Hearings Operations, Charleston, WV closed to the public on March 17, 2020 until further notice.  We will be reaching out proactively to our patrons to discuss options for continuing holding scheduled hearings. We will be offering telephone hearings whenever possible. We will also provide video hearings if the representative has a Representative Video Unit and we are able to continue with the hearing via video in one of our local offices.

    Monday, March 23, 2020

    West Virginia Governor Issues "Stay at Home Order" Effective Tuesday, March 24 at 8:00 pm

    Today the Governor of West Virginia announced a "Stay at Home Order" effective Tuesday, March 24 at 8:00 p.m. The Order does not have a duration listed but instead states that the Order will be in effect until terminated. Here is a summary FAQ issued by WVDHHR on "Staying at Home in West Virginia".

    The State of West Virginia Executive Department issued Executive Order No. 9-20, March 23, 2020, provides the detailed requirements of the "Stay at Home Order" and specifically lists those essential businesses and operations that can continue along with those non-essential businesses and operations that must temporarily cease operation. The Order states,

    1. Stay at home or your place of residence. To preserve public health and safety, and to ensure the healthcare system in West Virginia is capable of serving all citizens in need, especially those at high risk and vulnerable to COVID-19, all individuals within the State of West Virginia are under a general stay-at-home order and are directed to stay at home or their place of residence unless performing an essential activity. An activity is essential if the purpose of the activity is one of the following:

    a. Obtaining food, medicine, and other similar goods necessary for the individual or a family member of the individual.

    b. Obtaining non-elective medical care and treatment and other similar vital services for an individual or a family member of the individual.

    c. Going to and from an individual's workplace if such workplace and/or work is included in the definition of Essential Businesses and Operations as outlined in Section 3, below.

    d. Going to and from the home of a family member.

    e. Going to and from the home of another individual who, under the terms of a parenting plan or similar agreement, is entitled to visitation with or the care of a child.

    f. Going to and from an individual's place of worship.

    g. Engaging in outdoor activity, provided that individuals at all times and as much as reasonably possible maintain social distancing of six feet from one another and abide by a 1 0-person limitation on gathering size.

    Further, the Order outlines the following prohibited activities stating,

    "All places of public amusement, whether indoors or outdoors, including but not limited to locations with amusement rides, carnivals, zoos, museums, arcades, fairs, pool halls, bingo halls, malls (except where stores in a mall that have a direct outdoor entrance and exit that provide essential services and products under the terms of this Order), children's play centers, playgrounds, bowling alleys, movie and other theaters, concert and music halls, adult entertainment venues, racetracks, social clubs, and other similar businesses shall be closed."

    The Order continues by stating that,

    "All public and private gatherings of any number of people occurring outside a single household or living unit are prohibited, except for the limited purposes permitted by this Order. Any gathering of more than 1 0 people is prohibited unless exempted by this Order. Nothing in this Order prohibits the gathering of members of a household or residence."




    COVID: West Virginia Board of Pharmacy Issues Emergency Rule Limiting Prescriptions for Chloroquine and Hydroxychloroquine

    West Virginia Board of Pharmacy Issues Emergency Rule Limiting Prescriptions for Chloroquine and Hydroxychloroquine 

    Written by Luke Schmitt, Flaherty Sensabaugh Bonasso PLLC

    On March 21, 2020, the West Virginia Board of Pharmacy proposed an emergency rule pursuant to its general rulemaking authority seeking to ensure that chloroquine and hydroxychloroquine – two drugs thought to be potentially helpful in the treatment of COVID-19 – are only dispensed to individuals currently in need of these drugs. The emergency rule, Section 15-1-26.1, provides:

    26.1 No prescription for chloroquine or hydroxychloroquine may be dispensed except if all the following apply:
    26.1.a. The prescription bears a written diagnosis from the prescriber consistent with the evidence for its use;

    26.1.b. The prescription is limited to no more than thirty (30) tablets, unless the patient was previously established on the    medication prior to the effective date of this rule; and

    26.1.c. No refills may be permitted unless a new prescription is furnished. This requirement does not apply to the patient previously established on the medication prior to the effective date of this rule.
    This rule has been approved by the West Virginia Secretary of State and is now in effect.

    Both nationally and in West Virginia, some prescribers have begun writing prescriptions for these drugs for family, friends, and coworkers in anticipation of the further spread of COVID-19. This rule limits the ability for persons to obtain prescriptions for these medications by requiring that all new prescriptions for these medications contain a written diagnosis from the prescribing health care provider that is consistent with the medication’s use, limiting the supply to 30 days, and prohibiting refills on prescriptions for these medications.

    Today, March 23, 2020, the West Virginia Board of Medicine indicated in its notification "Emergency Rule Regarding Chloroquine and Hydroxychloriquine" that licensees should conform their prescribing practices to align with this emergency rule.

    COVID: Resources for West Virginia Businesses in Response to COVID-19 are Coming

    As part of Washington's efforts to minimize the economic disruption of COVID-19 to the nation's 30 million small businesses, the United States Small Business Administration ("SBA") is offering companies low-interest federal disaster loans for working capital through its Economic Injury Disaster Loan Program (EIDL). Small businesses in each of the fifty (50) states are eligible to apply. Applications may be submitted online or via mail.

    The SBA's EIDL Program offers up to $2 million in assistance per applicant that can provide vital support to small businesses in these trying times. The interest rate for qualifying non-profit businesses is 2.75%, and 3.75% for other small businesses.

    EIDL Program loans offer long-term repayment structures, up to 30 years, to keep payments affordable. The repayment terms are determined on a case-by-case basis and by taking into account each borrower's ability to repay.

    These are unprecedented times. Flaherty Sensabaugh Bonasso PLLC stands ready to assist you in your interactions with the United States Small Business Administration and to partner with you as you navigate these previously uncharted waters.

    Written by Bryan Price and Meghan Capps

    COVID: Legislative Responses and Legal Challenges to Viral Exclusions for Business Interruption Loss Coverages

    Part I: Legislative Responses and Legal Challenges to Viral Exclusions for Business Interruption Loss Coverages

    Written by Luke Schmitt, Flaherty Sensabaugh Bonasso PLLC (Part I)
    Written by Erica Baumgras, Flaherty Sensabaugh Bonasso PLLC (Part II)

    All eyes are on New Jersey Legislature, which is currently discussing and reviewing a bill that could force coverage under business interruption insurance for coronavirus related losses even in the presence of a “virus” related exclusion.

    After the SARS outbreak in 2003, which saw devastating effects, insurance companies made serious changes to their insurance policies relating to coverage for interruptions stemming from the disease. Specifically, many businesses who purchased business interruption coverage had “virus and bacteria” exclusions added to their policies.

    Business interruption policies generally cover direct property damage, which leads to periods of in-operation of the company. Arguably, pandemics, like COVID-19, could lead to property damage if there is contamination of the property or HVAC system, which caused property damage, but such claims may be difficult to demonstrate.

    Many insurers have added “Exclusion for Loss Due to Virus or Bacteria” provisions or similarly named exclusion provisions. As seen in reports out of New Jersey, these exclusions may bar first-party recovery for companies who suffer “loss or damage caused by or resulting from any virus . . . that induces or is capable of inducing physical distress, illness or disease.” Many business interruption policies contain slightly different language; however, the effect is still the same: no coverage for viral related damage during pandemics.

    Fast forward to 2019, when the world sees its second coronavirus related pandemic in the 21st Century, COVID-19 (a virus in the coronavirus family similar to that of SARS).

    To battle business losses stemming from the required social-distancing and other related damage, the New Jersey legislature appears to be the first to attempt to negate or void these existing insurance exclusion provisions. On March 16, 2020, New Jersey’s legislature proposed the following:

    “Notwithstanding the provisions of any other law, rule or regulation to the contrary, 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 this state on the effective date of this act, shall be construed to include among the covered perils under that policy, coverage for business interruption due to global virus transmission or pandemic . . . concerning the coronavirus disease 2019 pandemic.”

    The purpose behind this proposed legislation is to ease the burden on local, state, and federal governments, which would most likely need to provide nationwide bailouts, and of course, to aid the businesses who paid premiums for business interruption loss coverage. The New Jersey proposed legislation only intends to provide two changes: 1) to eliminate the virus exclusion, and 2) to eliminate the need to prove direct physical property damage under the business interruption policy. Aside from the myriad financial effects that this bill will have on the public and the insurance industry, this type of prospective legislation raises constitutional issues and will likely be reviewed by the courts in New Jersey and anywhere else similar legislation is adopted.

    This is not the first time that a legislature has retroactively acted to influence liability determinations. Following the Minnesota I-35W Bridge Collapse in 2007, which resulted in thirteen deaths and many injuries, the Minnesota legislature voluntarily established a $37 million fund for the compensation of affected families. To offset these payments, the state sought recovery from the engineering companies that had designed the bridge between 1962 and 1965. Typically, such a claim would be barred by the applicable statute of repose due to the passage of significant time since construction. Since the design professionals’ liability had been extinguished by way of that statute of repose, the Minnesota legislature revised its statutes to permit claims for indemnity and reimbursement against the designers. Specifically, the laws were amended to retroactively revive these time-barred claims arising out of one specific incident. The design professionals argued that the legislature’s action was unconstitutional; however, the Minnesota Supreme Court disagreed and allowed the state’s claims for indemnity against the engineer to stand.

    Not wishing to wait for their respective legislatures to act, some businesses are resorting to the courts to seek relief from these types of coverage exclusions. March 16, 2020, marked the date for the first of many anticipated declaratory actions brought in light of COVID-19 related business losses. Oceana Grill, a restaurant in New Orleans, filed suit seeking a declaration of coverage under their “all risks” property policy, which provided an extension of coverage for business closure by order of Civil Authority. The business is seeking a declaration that “the policy provides coverage to plaintiffs for future civil authority shutdowns of restaurants in the New Orleans area due to physical loss from Coronavirus contamination and that the policy provides business income coverage in the event that the coronavirus has contaminated the insured premises.” In advancing these arguments, businesses are relying upon the nature of the virus, specifically its propensity to stay on surfaces or materials, “fomites” for up to 28 days, and its ability to infect individuals physically. The outcome of these declaratory actions will likely not be seen for months, or even years.

    Moreover, legislatures that pursue similar measures to the one advanced in New Jersey will likely see their actions challenged on constitutional and other grounds. Which path West Virginia will follow will be determined in the coming weeks, months, and even years.

    Until then, Flaherty is here for your needs, whether they are part of your routine business or new in the face of unprecedented actions taken to combat COVID-19. In these fluid times, you can count on us to have current information that will help your business take advantage of opportunities as they become available. Please reach out if you have any questions or concerns about how these new requirements may impact your business or employees.

    Part II: Insurance Law Update on COVID-19: Part II

    Flaherty will continue to follow developments at both the national and state level, whether in the legislative, administrative, or judicial arena.  Please reach out to Erica Baumgras or Luke Schmitt if you have any questions about how these developments may impact you, your business, or your employees.

    On March 22, 2020, a bipartisan group from the United States House of Representatives sent a letter to four (4) insurance industry trade organizations, asking insurers to provide business interruption coverage under existing commercial property policies for losses due to closures tied to COVID-19. The lawmakers asserted that the coronavirus pandemic fulfills the policies’ requirement that an interruption in business be attributable to a “direct physical loss” or damage to a property. They also asserted that state and local “shelter-in-place” and curfew orders should trigger coverage for losses under the “civil authority” prong that is often found in commercial property policies.

    In response, executives of the four groups, the American Property Casualty Insurance Association, National Association of Mutual Insurance Companies, Independent Insurance Agents, and Brokers of America, and Council of Insurance Agents and Brokers, sent a joint letter to Rep. Nydia Velazquez, D-N.Y., saying that business interruption policies “do not, and were not designed to, provide coverage against communicable diseases such as COVID-19.” The groups said that the “U.S. insurance industry remains committed to our consumers and will ensure that prompt payments are made in instances where coverage exists.” The trade groups added that their member companies have assisted in local charitable relief efforts and have begun to work with customers “on issues such as flexibility in premium payments.” The groups also said the “U.S. is in the midst of a national crisis that will require federal assistance that provides funding directly to those American individuals and businesses most in need,” and that their “organizations stand ready to work with Congress on solutions that provide the necessary relief as soon as possible.”

    Also, at the national level, a subcommittee of the House Committee on Oversight and Reform on Wednesday asked three (3) travel insurance carriers to produce documents and participate in interviews to address the scope of coverage provided by their policies for trip cancellations related to the coronavirus. The chairman of the Economic and Consumer Policy subcommittee sent letters to Allianz Global Assistance USA, Generali Global Assistance Inc., and Travel Guard Group Inc., asking them to provide certain information by March 25. Among other things, the subcommittee is seeking data on the number of claims the carriers have received from policyholders for reimbursement of trip cancellations or medical expenses, as well how many of those claims have been paid or denied. Rep. Raja Krishnamoorthi, D-Ill., also asked executives of the three insurers to schedule interviews, noting that the subcommittee “can make arrangements for a remote interview.” The executives previously declined invitations to testify at a subcommittee hearing on travel insurance issues scheduled for March 11. The inquiries are part of an ongoing investigation into consumer complaints that their travel insurance claims have been improperly denied.

    The three insurers have all issued public statements indicating they now consider the coronavirus outbreak to be a “foreseeable event” and that cancellations for fear of travel generally will not be covered under most of their policies. The carriers have said their “cancel for any reason” policies might provide partial or full coverage for cancellations on these grounds, depending on the policies’ terms. In addition, the insurers have all indicated that some of their policies might cover claims for trip cancellation or interruption if a policyholder’s plans are disrupted by a confirmed diagnosis of COVID-19.

    At the state level, in the New Jersey General Assembly, lawmakers are in discussions with insurance carriers regarding potential changes to a bill, A3844, that would retroactively expand business interruption insurance to include losses attributed to the coronavirus pandemic. The bill was reported out of the General Assembly’s Homeland Security and State Preparedness Committee last Monday. It was set for a vote by the full chamber the same day before the sponsors pulled it at the last second. Assemblyman Freiman’s chief of staff reported that the bill was pulled so lawmakers could engage in further discussions with insurers. After several conversations with various insurance companies, they concluded that they are going to allow companies to come forward with their plans to address the issue proactively, and they want to give them a few days to do so. As of March 20, talks were still ongoing.

    As currently written, A3844 would apply to business interruption policies held by New Jersey businesses with fewer than 100 full-time employees, provided that the policies were issued by March 9, when Gov. Phil Murphy declared a state of emergency. The bill would effectively rewrite such policies to explicitly include coverage for “business interruption due to global virus transmission or pandemic.” Insurers that pay out business interruption claims under these policies would potentially be eligible for reimbursement from the New Jersey Department of Banking and Insurance, according to as-yet-undetermined standards that would have to be established by the department.

    A3844 was met with swift criticism by a host of both New Jersey and national insurance industry trade groups, which cautioned against legislation that would retroactively create coverage for otherwise uncovered losses. Those concerns were echoed by attorneys who represent insurers, who pointed out that many policies with business interruption coverage contain a “virus” exclusion that was developed by the Insurance Services Office and approved by state regulators years ago. If passed in its current form, the bill could be met with numerous constitutional challenges by insurers.

    Citing the coronavirus outbreak, the California Insurance Commissioner issued a notice March 19 requesting that all insurance carriers doing business in the state grant their policyholders a “grace period” of at least 60 days before canceling their policies due to a failure to pay premiums. During that period, policyholders would be able to catch up on payments. Commissioner Lara said he issued the notice, which applies to insurers offering life, health, auto, property, casualty, and other types of coverage, to ensure policies are not canceled for nonpayment of premium due to the novel coronavirus (COVID-19) public health emergency. Lara further requested that all insurance agents, brokers and others who accept premium payments on behalf of insurers take steps to ensure that customers have the means to make payments if and where possible, including alternate methods of payment, such as online payments, to eliminate the need for in-person payment methods in order to protect the health and safety of both workers and customers.

    COVID: West Virginia Board of Medicine and West Virginia Board of Osteopathic Medicine Responding to Address COVID-19 Crisis

    West Virginia Board of Medicine and West Virginia Board of Osteopathic Medicine Responding to Address COVID-19 Crisis

    Written by Luke Schmitt, Flaherty Sensabaugh Bonasso PLLC

    In response to the COVID-19 pandemic and in anticipation of the challenges to come, the West Virginia Board of Medicine (the “Board”) this week has taken specific measures to prepare and to assist healthcare providers during this unprecedented time. The Board issued a COVID-19 Information Update on March 20, 2020.

    First, the Board has announced that it recognizes the need to facilitate the influx of available health care practitioners into West Virginia and is taking efforts to try to expedite the process. The Board has announced that it is working to streamline the licensure approval process for COVID-19 providers and to maximize practice authorizations for physician assistants. However, the Board has not yet released specific details regarding its anticipated changes.

    In addition, the Board in its March 20, 2020, update encouraged the use of telemedicine technologies, to provide flexibility for licensed health care professionals to respond to this emergency and expected patient volume surges. Specifically, the Board has stated that physicians who are evaluating and/or triaging COVID-19 patients are providing emergency care that falls within a statutory exception to the requirement for a face-to-face (in person or video) initial encounter to establish a physician/patient relationship. These providers may, consistent with the standard of care, conduct such evaluations through an audio-only encounter. The Board cautioned, however, that all non-COVID-19 telemedicine practice must continue to comply with the requirements prohibiting the establishment of a physician/patient relationship via audio-only communication.

    Finally, the Board has stated that physician assistants with authorized Practice Agreements and/or active Practice Notifications may practice via telemedicine in collaboration with physicians even if the Practice Agreement and/or Practice Notification does not specifically identify telemedicine as an authorized practice modality. The Board further stated that physician assistants who are likewise evaluating and/or triaging COVID-19 patients may similarly conduct initial patient encounters through audio-only measures even though the establishment of a physician/patient ordinarily must occur via a face-to-face (in person or by video) initial encounter. Again, regular practice requirements continue to govern in situations not involving the treatment of COVID-19 patients.

    Following is the complete language posted by the Board regarding its recommendations on telemedicine services in West Virginia: 

    Telemedicine:  (New 3-18-2020)
     In an effort to ensure maximum flexibility for our licensees and to surge the response to this emergency,  the Board encourages the use of telemedicine technologies, consistent with the standard of care, where appropriate.  
    Physician Telemedicine Practice for COVID-19 Emergency 
    For physicians who are evaluating and/or triaging COVID-19 patients, this emergency care falls within a statutory exception to the requirement for a face-to-face (in person or via video) initial encounter to establish a physician/patient relationship and may, consistent with the standard of care, occur through an audio-only encounter.  All non-COVID-19 telemedicine practice must continue to comport with the requirement that a physician-patient relationship may not be established via audio-only.    
    Physician Assistant Telemedicine Practice for COVID-19 Emergency and Non-COVID-19 Practice 
    Physician assistants with authorized Practice Agreements and/or active Practice Notifications may practice via telemedicine, where appropriate and in collaboration with physicians, even if the PA’s Practice Agreement and/or Practice Notification does not specifically identify telemedicine as an authorized practice modality.   For physician assistants who are evaluating and/or triaging COVID-19 patients, this emergency care falls within a statutory exception to the requirement for a face-to-face (in person or via video) initial encounter to establish a practitioner/patient relationship and may, consistent with the standard of care, occur through an audio-only encounter.  All non-COVID-19 telemedicine practice must continue to comport with the requirement that a practitioner/patient relationship may not be established via audio-only.

    Likewise, the West Virginia Board of Osteopathic Medicine has indicated that it is in the process of reviewing its licensing and renewal requirements and its authority to make changes to those requirements in emergencies. While specific measures have not been announced, the Board has stated it will initiate every possible action to ensure that qualified individuals can efficiently obtain a license so that they can assist in responding to this unfolding health care challenge.


    COVID: Loosening of HIPAA Requirements

    Loosening of HIPAA Requirements

    Permit providers subject to HIPAA to communicate with patients and provide telehealth services through certain remote communications technologies
    Written by Caleb Knight, Flaherty Sensabaugh Bonasso PLLC

    The Office for Civil Rights (“OCR”) at the Department of Health and Human Services (“HHS”) has taken steps to permit covered health care providers subject to the HIPAA Rules to seek to communicate with patients and provide telehealth services through remote communications technologies.  Some technologies and the manner in which they are used may not comply with the requirements of HIPAA; however, OCR announced that it will exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under HIPAA rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.

    For example, a covered health care provider, in the exercise of their professional judgment, may request to examine a patient exhibiting COVID- 19 symptoms using a video chat application to assess a greater number of patients while limiting the risk of infection. Likewise, a covered health care provider may provide similar telehealth services, in the exercise of their professional judgment, to assess or treat other medical conditions unrelated to COVID-19, such as a sprained ankle, dental consultation, or psychological evaluation, or other conditions.

    Under OCR’s Notification of Enforcement Discretion for Telehealth Remote Communications During the COVID-19 Nationwide Public Health Emergency issued March 17, 2020, covered health care providers may use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide telehealth without the risk that OCR might seek to impose a penalty for noncompliance with the HIPAA Rules related to the good faith provision of telehealth during the COVID-19 nationwide public health emergency. Providers are encouraged to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications.

    Under this Notice, however, Facebook Live, Twitch, TikTok, and similar video communication applications are public facing. They should not be used in the provision of telehealth by covered health care providers.

    Covered health care providers that seek additional privacy protections for telehealth while using video communication products should provide such services through technology vendors that are HIPAA compliant and will enter into HIPAA business associate agreements (BAAs) in connection with the provision of their video communication products. The list below includes some vendors that represent that they provide HIPAA-compliant video communication products and that they will enter into a HIPAA BAA.
    • Skype for Business
    • Updox
    • Zoom for Healthcare
    • Google G Suite Hangouts Meet


    The Notification of Enforcement Discretion on telehealth remote communications may be found at: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification-enforcement-discretion-telehealth/index.html.
    For more information on HIPAA and COVID-19, see OCR's February 2020 Bulletin: https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf - PDF


    Sunday, March 22, 2020

    COVID: Expanded Medicare Telehealth Coverage

    Expanded Medicare Telehealth Coverage

    Enables beneficiaries to receive a broader range of telemedicine healthcare
    Written by Caleb Knight, Flaherty Sensabaugh Bonasso PLLC

    To promote continuity of care and to help minimize exposure and spread, on Monday, March 16, 2020, the Trump Administration announced expanded Medicare telehealth coverage that will enable beneficiaries to receive a broader range of healthcare services from their doctors without having to travel to a healthcare facility. Beginning on March 6, 2020, Medicare will temporarily pay clinicians to provide telehealth services for beneficiaries residing across the entire country.

    For more information regarding the actions of the Centers for Medicare & Medicaid Services (“CMS”) in this regard, please visit: www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet.

    On Tuesday, March 17, 2020, CMS issued further guidance, which can be accessed at: www.medicaid.gov/medicaid/benefits/downloads/medicaid-telehealth-services.pdf. The homepage for general Medicaid Telehealth Guidance can be found at: www.medicaid.gov/medicaid/benefits/telemedicine/index.html.

    COVID: Interstate Medical License Compact

    Interstate Medical License Compact

    Not a new effort, but offers a pathway for establishing a multi-state practice
    Written by Luke Schmitt, Flaherty Sensabaugh Bonasso PLLC

    Even before the COVID-19 pandemic, efforts were made within the United States to facilitate the borderless practice of medicine in our country.  However, now more than ever, these measures are necessary even if temporarily.  To effectively combat this public health crisis, we need to be able to mobilize resources efficiently and effectively.

    The Interstate Medical License Compact (the “Compact”) offers a voluntary, expedited pathway to licensure for qualified physicians who wish to practice in multiple states.  The mission of the Compact is to increase access to health care for patients in underserved or rural areas and to allow them to connect with medical experts through telemedicine technologies more efficiently.  In addition to making it easier for physicians to obtain licenses to practice in multiple states, the Compact also seeks to strengthen public policy by enhancing the ability of states to share investigative and disciplinary information.

    The Compact is not a federal program or administered by a federal agency.  Nor was it a product of Congressional action or the result of executive or administrative order.  Rather, it is an agreement among states with the Commission functioning as an independent organization.  The Commission is based in Littleton, Colorado, and is governed by the terms of the Compact, which empowers the Commission to create bylaws, rules, and policies.

    In West Virginia, in 2015, the Legislature passed House Bill 2496, adopting the Interstate Medical Licensure Compact.  West Virginia Code 30-1C-1 codifies the Interstate Medical Licensure Compact Act. West Virginia Code 30-1C-3 outlines eligibility requirements, West Virginia Code 30-1C-5 governs applications and the issuance of expedited licenses, and West Virginia Code 30-1C-6 sets forth the application fees.

    The efficacy of the Compact may not move the needle much in our current situation, but its goals and purposes are something to keep in mind for the future.

    More information about who may qualify to participate in the Compact and how to apply is available at the Interstate Medical Licensure Compact website at: https://imlcc.org/.

    In addition, to directly combat COVID-19, on Wednesday, March 18, 2020, the Trump Administration announced that the Department of Health and Human Services (“HHS”) would allow all physicians and other medical personnel to practice in states other than those in which they are currently licensed to practice. The HHS regulation is designed to mobilize doctors across state lines to meet the needs of hospitals as they arise during this public health crisis.

    However, it is crucial to recognize that the federal medical licensure waivers by HHS are limited in scope to conditions of participation and payment for federal health care programs such as Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP).  HHS and CMS accomplished these waivers according to Section 1135 of the Social Security Act, which authorizes the Secretary of HHS to waive certain Medicare, Medicaid, and CHIP program requirements and conditions of participation once the President declares a public health emergency (“PHE”)HHS Secretary Alex M. Azar issued a PHE on January 31,2020, and President Trump declared an emergency on March 13, 2020.

    These waivers do not waive the requirement for physicians and other healthcare providers to maintain licensure in states where they are practicing a licensed profession, including via telehealth.  State laws continue to govern whether a provider is authorized to provide professional services in that state without holding an active license from that state’s medical board.  However, some states are working to ease these restrictions.

    Congress is currently considering additional Legislation that would apply to covered health services by private payors.  We are continuing to monitor these developments.

    COVID: The Health Care Law Blog Restart

    These unprecedented and uncertain times have all of us worried, seeking data/information, thinking in new ways as a result of our world being turned upside down in the past month due to the ongoing COVID-19 crisis. The law is largely built around precedent and written law/regulations. However, no time during my legal career have I see so much change and fluid movement in the law as I saw this past week.

    As we stay home and shelter with our families and communities, I thought it was time to restart my blogging at the Health Care Law Blog as a way to share health care and legal information and content relevant that may be helpful to my health care clients, other health care providers, hospitals, nursing homes, physicians/physician practices, home health agencies and other providers. My last post on this blog was in 2012 - but it is time to dust off the blogging keyboard again in light of these worldwide events that impact us all from every direction. I started the Health Care Law Blog back in 2004, the infant hears of blogging and social media. At that time, there were only a handful of bloggers who connected nationally/globally. It was such an eye opening experience as a young lawyers sitting in little old wild and wonderful West Virginia - through this platform I was immediately connected with health care industry, health care lawyers and other technology interested lawyers around the world. Many of those individuals I still follow today via my Twitter feed at @BobCoffield and other social media platforms. In fact, much of my "trusted content" on the developing COVID crisis comes from these same health care blogging resources who I have trusted over the years. 

    So with these opening comments, this health care regulatory, transactional and technology lawyer who practices out of Charleston, West Virginia at Flaherty Sensabaugh Bonasso PLLC is starting up the posts today. In the coming days, I plan to share my own thoughts and health care/legal related content along with content prepared by other health care lawyers in our firm's health care practice group, including, Caleb Knight, Shereen Compton McDanielAmy McLaughlin, Luke Schmitt, and others at our firm. This past week a few of us were brainstorming how we can help our clients, our communities, our state of West Virginia, our country and our globe during these difficult times. I think we all are struggling with what role we can and should play. Maybe through efforts to write, document, share content and commentary we can find some balance to what are likely difficult days and months to come for us and so many. 

    Stay home, stay safe.