Tuesday, April 07, 2020

COVID-19 Pandemic - West Virginia and Federal Health Care and Legal Resources UPDATED

Prepared and updated by Bob Coffield, Flaherty Sensabaugh Bonasso PLLC
LAST UPDATED: 4/7/2020

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:
  • The COVID Tracking Project - Most Recent Data (by state). The COVID Tracking Project collects information from 50 US states, the District of Columbia, and 5 other US territories to provide the most comprehensive testing data we can collect for the novel coronavirus, SARS-CoV-2. We attempt to report positive and negative results, pending tests, and total people tested for each state or district currently reporting that data.
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 General: The 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 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 3/20/2020:
          • 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 3/23/2020 (but see Executive Order 12-20 issued 3/26/2020, which rescinded the suspension of certain requirements):
          • 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. Suspension Rescinded by Governor 3/26/2020
          • APRNs with prescriptive authority do not need a collaborative physician. Suspension Rescinded by Governor 3/26/2020 
          • No limitation on prescriptive writing privileges for APRNs with prescriptive authority as to prescriptive formulary limitations, prescriptive refill and supply limitations. Suspension Rescinded by Governor 3/26/2020
          • Continuing education not required for APRNs. Suspension Rescinded by Governor 3/26/2020
          • 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): 
    Federal Legislation and Information: 
    • CMS Medicare and Medicaid Programs; Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency (Interim Final Rule with comment period), issued 3/26/2020 and applicable beginning on 3/1/2020. This interim final rule with comment period (IFC) gives individuals and entities that provide services to Medicare beneficiaries needed flexibilities to respond effectively to the serious public health threats posed by the spread of the 2019 Novel Coronavirus (COVID-19). Recognizing the urgency of this situation, and understanding that some pre-existing Medicare payment rules may inhibit innovative uses of technology and capacity that might otherwise be effective in the efforts to mitigate the impact of the pandemic on Medicare beneficiaries and the American public, we are changing Medicare payment rules during the Public Health Emergency (PHE) for the COVID-19 pandemic so that physicians and other practitioners, home health and hospice providers, inpatient rehabilitation facilities, rural health clinics (RHCs), and federally qualified health centers (FQHCs) are allowed broad flexibilities to furnish services using remote communications technology to avoid exposure risks to health care providers, patients, and the community. We are also altering the applicable payment policies to provide specimen collection fees for independent laboratories collecting specimens from beneficiaries who are homebound or inpatients (not in a hospital) for COVID-19 testing. We are also expanding, on an interim basis, the list of destinations for which Medicare covers ambulance transports under Medicare Part B. In addition, we are making programmatic changes to the Medicare Diabetes Prevention Program (MDPP) and the Comprehensive Care for Joint Replacement (CJR) Model in light of the PHE, and program-specific requirements for the Quality Payment Program to avoid inadvertently creating incentives to place cost considerations above patient safety. This IFC will modify the calculation of the 2021 and 2022 Part C and D Star Ratings to address the expected disruption to data collection and measure scores posed by the COVID-19 pandemic and also to avoid inadvertently creating incentives to place cost considerations above patient safety. This rule also amends the Medicaid home health regulations to allow other licensed practitioners to order home health services, for the period of this PHE for the COVID-19 pandemic in accordance with state scope of practice laws. We are also modifying our under arrangements policy during the PHE for the COVID-19 pandemic so that hospitals are allowed broader flexibilities to furnish inpatient services, including routine services outside the hospital.
    • KFF Medicaid Emergency Authority Tracker: Approved State Actions to Address COVID-19. This page aggregates tracking information on approved Medicaid emergency authorities to address the COVID-19 Coronavirus emergency. We currently include details on Section 1135 waivers and 1915 (c) Waiver Appendix K strategies, but will update soon to add additional emergency authorities.
    Other Guidance, Resources and Information: 
    Posted by Bob Coffield at 12:47 PM 0 comments
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    COVID-19 Emergency Response and Information by the Supreme Court of West Virginia, West Virginia State Bar and Other Legal Agencies UPDATED 4/27/2020

    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. 
      • Temporary Order Regarding Civil Litigation and Rules of Civil Procedure in Circuit Court, Docket No. 20-Rules-04, April 24, 2020. This Temporary Order, "temporarily amend[s] certain rules governing the conduct of civil litigation under the West Virginia Rules of Civil Procedure. Access to the courts requires that parties have the ability to conduct proceedings in civil cases, including hearings, depositions and meditations, as long as such proceedings are conducted remotely and consistent with the consent requirements and authority of the judicial officer to determine the reasonableness of a party's refusal to consent, as contained in the Second Amended Order." Lawyers currently handling litigation matters in West Virginia should consult this Temporary Order. The Temporary Order contains significant details on holdings hearings, motions, written discovery, depositions, etc. 
      • Administrative Order re: Judicial Emergency Declared, Second Amended Order, April 22, 2020. This Second Amended Order extends the March 22, 2020 Administrative Order and adjusts the emergency order for deadlines set to expire between March 23, 2020 and May 15, 2020, and extended through May 18, 2020, for all 55 counties in West Virginia. The Second Amended Order further provides other direction regarding limited emergency proceedings and affirmatively states that circuit court judges, family court judges, and magistrates may conduct hearings, proceedings, or bench trials via telephone or video conferencing in non-emergency matters upon mutual consent of the parties. 
      • 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, 2020. 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.
    Posted by Bob Coffield at 9:57 AM 0 comments
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