New Orders and Guidance Coming for Kentucky Bars and Restaurants on August 10, 2020

By Kathie McDonald-McClure

During his COVID-19 update on August 6, 2020, Governor Andy Beshear said that the state will have new guidance and an order for bars and restaurants before his 4:00 pm update on Monday, August 10th.  He said that the specifics have not yet been finalized.  Nevertheless, he gave bars and restaurants a heads-up on what to expect.

Restaurants can expect to increase capacity back to 50%, but with some changes.  He said that restaurants will need to prioritize outdoor seating.  He indicated that many restaurants have already increased their outdoor seating in the last couple of weeks, which is much safer because “it keeps the virus down and will put us in better position” to contain the virus.

Bars can expect to be allowed to reopen but they will have an “enforced seat rule.”  The Governor said, “If you go to a bar, expect to have a seat, expect to sit in it, [and] expect not to get out of it unless you’re going to the restroom.”  He said that all the service and the orders will need to be at a table for the party that Kentuckians come to the bar with.

Both bars and restaurants are going to be expected to have their very last order served by 10 pm.  Then there will be about an hour to allow time for the people served at 10 pm to consume what they are served before going home.  He said that “we don’t want someone having a drink at 10:59 pm and then getting in their car right afterwards.”

The Governor said, “We think [these actions will] give us the best opportunity to avoid the mega spreading events, the super spreading events, and to encourage what we need to see from folks out there.”  He then reminded Kentuckians of the 10-person limit on house gatherings, saying, “It’s really important though that we [don’t] exchange those later nights that might have been at an establishment for a house party.”  He said we’re seeing this occur in other states and some officials have had to take additional measures to curtail such occurrences.  As an example, he mentioned the Los Angeles Mayor’s announcement on August 5th authorizing the city to shut off water and power services to resident properties holding large house parties.

 

Can Employers Limit Off-Duty Activities and Travel During the COVID-19 Pandemic?

Written by:  Meredith L. Eason

Most employers have implemented new policies to comply with OSHA’s requirement to provide a safe workplace and to limit the spread of COVID-19.  These new policies typically include enhanced cleaning procedures, facemask and social distancing requirements, and limitations on business travel and in-person meetings.  Many employers wonder whether they can legally take these policies a step further and place restrictions on their employees’ behavior outside the workplace, particularly if they believe the employee is engaging in risky travel or other behavior that may increase their likelihood of contracting the virus.  Unfortunately, as with most questions surrounding this pandemic, the answer is that it depends.

Certain states (California, Colorado, New York, and North Dakota) have laws that prohibit employers from placing any restrictions on employees engaged in lawful activities outside the workplace.  Other states have more narrow laws, such as statutes that protect the off-duty use of tobacco and alcohol or employees’ rights to free speech.  Employers must also consider other federal and state laws that would impact their ability to control their employees’ activities while they are off the clock.  For instance, employers cannot place restrictions that discriminate against certain protected groups under Title VII, that violate the Family and Medical Leave Act, or that limit concerted activity under the National Labor Relations Act.

Employers generally can place restrictions on their employees’ personal travel or other activities engaged in during their leisure time, if the employer has a reasonable belief that the employee presents an increased risk to the workplace and provided that the policy is enforced uniformly across the workforce.  However, even though it is legal, it probably is not recommended.

Most businesses would have trouble monitoring this and enforcing it equally – for instance, people who do not post their whereabouts on social media are less likely to be singled out than those who do.  Further, there could be substantial business interruptions if an employer mandates a quarantine whenever an employee engages in any type of “risky” behavior on his or her own time.  Employers should also consider whether this is necessary given the needs of the business.  Imposing strict requirements that limit employees’ personal lives could result in low morale and bad publicity, and it is probably not necessary if the majority of the workforce can work from home anyway.

A better approach would be to have a return to work policy in place that is strictly and uniformly enforced, which would require any employee showing symptoms to self-quarantine and would require all employees to wear masks and practice social distancing while in the workplace.  Depending on the business, employers may also want to implement a policy that requires employees to notify the employer about any upcoming personal travel, advise them about the risks of such travel, and implement policies for how the employee will be integrated back into the workforce after taking the trip.

Most of these questions are fact-specific and depend on which state law applies, the job duties of the employees, and the needs of the business.  If you have any specific questions about your workforce, please contact a member of Wyatt’s labor and employment team.

First Provider Loans Through the Accelerated and Advance Payment Programs Come Due

As we previously reported, the Centers for Medicare & Medicaid Services (CMS) extended the Accelerated and Advance Payment Programs back in March 2020 to allow providers and suppliers to apply for advances on their Medicare payments to offset their costs and losses incurred at the outset of the COVID-19 pandemic, then curbed the programs in April. Now, repayments of the first loans are coming due. Absent a Congressional or CMS extension, 120 days after the loans were issued, CMS will recoup the loan amounts via Medicare claim withholding. Hospitals have one year from the date of the loan payment to repay the full balance of the loan, while Medicare Part A providers and Part B suppliers have 210 days. Hospital and provider advocacy groups are asking Congress to extend the recoupment period for loan recipients given the surge in COVID-19 cases and hospitalizations and the ongoing precarious financial position of hospitals and providers.

HHS Extends Deadline for Medicaid Providers to Request Relief

In June 2020, Medicaid, Children’s Health Insurance Program (CHIP), and dental providers were able to apply to the Provider Relief Fund for funding of up to 2% of reported revenue from patient care. The initial deadline of July 20, 2020 was extended to August 3. Now, the Department of Health and Human Services has extended the deadline to August 28 to apply for funds. Furthermore, starting next week, Medicare providers who missed the opportunity to apply for additional funding from the initial Medicare General Distribution made in April will be able to apply for funds until August 28.

CMS Proposes Permanent Expanded Telehealth Benefits

On August 4, 2020, pursuant to Executive Order on Improving Rural and Telehealth Access, the Centers for Medicare & Medicaid Services (CMS) announced proposed permanent changes to extend the availability of certain telehealth services even after the COVID-19 public health emergency ends to give Medicare beneficiaries more convenient ways to access healthcare, particularly in rural areas. CMS proposes adding services to the permanent Medicare telehealth list here and seeks to create a category of Medicare telehealth services available on a temporary basis. CMS is soliciting feedback and public comments on the proposed rule which are due by October 5, 2020.

Kentucky DPH COVID-19 Guidance on Release from Isolation/Return to Work

On August 3, 2020, the Kentucky Department for Public Health (KDPH) issued Confirmed or Suspected COVID-19 Disease Clearance Guidance on determining when to release an individual from isolation and/or return the individual to work.  The KDPH recommends a symptom-based strategy to determine resolution of COVID-19 clinical disease and likely infectivity. The guidance states that it represents KDPH’s best expert judgment on this date and will continue to evolve as understanding of COVID-19 improves.

FAQs on COVID-19 Testing for Long-Term Care Facilities

On August 5, 2020, the Kentucky Cabinet for Health & Family Services (CHFS) answered Frequently Asked Questions relating to surveillance COVID-19 Testing for long-term care facilities.  These FAQs address common questions about testing of staff and residents, such as who should be tested, how often, should staff be tested if not working, etc.  This follows up the previously issued Provider Guidance: Surveillance COVID-19 Testing for Long-Term Care Facilities which recommends testing each staff member (including agency staff, contracted health professionals and others who regularly enter the facility) at least bi-weekly.

COVID-19 Test Guidance for Healthcare Providers

On August 5, 2020, the Kentucky Cabinet for Health & Family Services (CHFS) issued guidance for healthcare providers, reminding them that they are required by law to report all positive laboratory COVID-19 results, including rapid tests, of Kentucky residents to the local or state health department within 24 hours.

For any positive results, providers must submit a CDC Person Under Investigation (PUI) Form (also called a “COVID-19 Case Report Form”) and Kentucky’s Reportable Disease Form, an EPID 200, to the state or local health department. An updated version of the PUI Form can be found on CDC’s website, and an updated version of the EPID 200 can be found on the Commonwealth’s website.

COVID-19 Test Guidance for Clinical Commercial Laboratories

On August 5, 2020, the Kentucky Cabinet for Health & Family Services (CHFS) issued updated test reporting guidance to clinical laboratories that conduct testing for COVID-19, including rapid testing.  Effective immediately, CHFS now requires that all laboratories and facilities report all test results (all positive and non-positive) electronically through the Kentucky Health Information Exchange (KHIE). Labs not yet submitting results via KHIE must begin transitioning to KHIE reporting.  This guidance provides additional advice to labs on reporting to KHIE, health departments, and providers.

CMS is Reprocessing Physician Telehealth Claims That Were Denied Due to SNF CB Edits

On July 31, 2020, in a late Special Edition of the MLN News, the Centers for Medicare and Medicaid Services (CMS) indicated that claims with dates of service on or after March 1, 2020, for physician telehealth services to Medicare Part A residents in a Skilled Nursing Facility (SNF) had been erroneously denied. The denials resulted from SNF Consolidated Billing (CB) edits that otherwise disallow these claims absent the broad COVID-19 Public Health Emergency (PHE) waivers. CMS reconfirmed that physicians can use CPT codes 99441, 99442, and 99443 (on the list of telehealth codes) during the COVID-19 PHE on Medicare Part B claims for telehealth services to Part A SNF residents.  CMS stated that physicians need not take any action to have these denied claims reprocessed, further stating that Medicare Administrative Contractors (MACs) are reprocessing these claims. CMS advised physicians who had already received payment from the SNF for these telehealth services to return such payments to the SNF once the MAC reprocesses the claim.