Update on Kentucky Reopening: 30-Day Mask Mandate Takes Effect

NOTE: This article has been updated with information available from the Governor’s Office as of July 10, 2020 at 3:30 pm.  New information since June 26, 2020 is flagged with the word New!

by Kathie McDonald-McClure, Partner 

On Monday, June 22, 2020, during his coronavirus update, Governor Andy Beshear announced that Kentucky will begin Phase III of the White House reopening plan during the novel coronavirus 2019 (COVID-19) public health emergency (PHE).  (See below “New! Phase III Reopening”.) The Governor said, “Next Monday, just about everything in the Commonwealth will be open, from bars, wedding venues, public pools and even Kentucky Kingdom.” He continued, the “It has been a long road dealing with this virus. But by following medical guidelines we have gone from a time when our cases were doubling every week, to a point where we are safely beginning to reopen businesses and our economy.”

It has been a long road indeed.  Kentucky was one of the first states to declare a state of emergency on March 6, 2020.  Then, on March 26, 2002, the Governor launched Healthy at Home, with information, advice and restrictions aimed at ensuring social distancing and protecting the state’s health care operations.  Governor Beshear reported that studies by the CDC, the University of Louisville and the University of Kentucky all show that these early actions saved thousands of Kentuckians’ lives.

On April 27, 2020, the Governor began reopening parts of the healthcare sector with Healthy at Work for Healthcare Facilities, a four-phase, gradual reopening of healthcare services (not applicable to long-term care settings).  Phases I, II, III and IV are all now underway, with Phase IV having begun on May 27, 2020.  Under Phase IV, non-urgent/non-emergent inpatient procedures can proceed at volumes determined by each healthcare facility.  Visitation restrictions, however, remain in force: a single (one) visitor/support person per patient based on the best judgment and discretion of the facility. For additional information, see the Governor’s Healthy at Work for Healthcare Facilities website and Order.

Then, on May 11, 2020, Governor Beshear began reopening the non-healthcare sectors of Kentucky’s economy that had been closed due to the COVID-19.  Kentucky has been nationally recognized as among few states that are meeting the White House and CDC guidance for reopening the economy.  The reopening, called Healthy at Work, has been a phased approach that is intended to guide businesses and healthcare providers through a “smart, safe and gradual” reopening during the continuing COVID-19 PHE.  It is based on criteria set by public health experts and advice from industry experts. Each phase of Healthy at Work will be rolled out in steps to ensure the Commonwealth’s citizens can safely return to work while still protecting the most vulnerable Kentuckians.

Phase III Reopening.  On Monday, June 29, 2020, people can begin gathering in groups of 50 or fewer people. Adherence to rules on social distancing, mask use and sanitation remains critically important, and people in more vulnerable categories should continue to avoid such gatherings.  Updated guidance has been posted on the Healthy at Work website for many venues, including restaurants and bars. There also is new guidance covering wedding venues and event spaces and gatherings of 50 or fewer people.  Finally, specific requirements were updated to allow for up to 50% capacity effective June 25, 2020, for barbers/cosmetologists/ hair salons, massage therapy, nail salons, tanning salons and tattoo parlors.  Links to the updated requirements are in the timeline below.

New! Governor Issues Mandatory Face Covering Requirement.  In response to the rapid spread of COVID-19 across the country and the rising number of cases in Kentucky, on July 9, 2020, Governor Beshear announced that effective at 5 p.m. on Friday, July 10, people in Kentucky must cover their nose and mouth with a face covering in several enumerated situations that present a high risk of COVID-19 transmission. The Governor’s Executive Order states that face coverings will be required:

“While inside, or waiting in line to enter, any: retail establishment; grocery store; pharmacy; hair salon/barbershop; nail salon/spa; tattoo parlor; child care facility; restaurant or bar (when not seated and consuming food or beverage); health care setting, or; any other indoor public space in which it is difficult to maintain a physical distance of at least six feet from all individuals who are not members of that person’s household;

“While waiting for or riding on public transportation or paratransit, or while riding in a taxi, private car service, or ride-sharing vehicle, or driving any of the above while customers are present; or

“While in outdoor public spaces in which the person cannot maintain a physical distance of six feet from all individuals who are not members of the person’s household and is not otherwise covered by previously issued guidance.”

Several exemptions will apply, including children who are 5 or younger and any person with a disability, or a physical or mental impairment, that prevents them from safely wearing a face covering.  To read the Executive Order and additional exemptions, click here.

The Governor said that the issue is so important that the Retail Industry Leaders Association wrote a letter to every governor urging them “to require consumers who are not encumbered by a medical condition to wear masks when shopping or in public places.” The face covering order is effective for 30 days and will be reviewed and subject to renewal upon its expiration.

Minimum Requirements Applicable to All Reopenings. Healthy at Work has continued with a phased reopening of specific business and organizational sectors. However, pursuant to the Governor’s Executive Order of May 11, 2020, all entities in the Commonwealth shall comply with certain “Minimum Requirements” attached to that Executive Order, in addition to business or activity-specific requirements.

On June 22, 2020, Dr. Steven Slack, Kentucky’s Commissioner of Public Health, continued to emphasize the importance of following the Minimum Requirements during Kentucky’s Phase III reopening. “Despite reopening, there are small things we have to do until we get a vaccine or treatment, Dr. Stack said. “Continue to socially distance, wear face masks, wash hands frequently and do temperature screenings at work and places of business.” Dr. Stack said using face masks and getting tests are crucial in keeping the virus under wraps.

Dr. Stack continues to stress the importance that Kentuckians follow the Minimum Requirements. During the Governor’s June 22nd update, he stated, “This is a dangerous disease. We are seeing in other states dramatic surges in virus cases”  He said, “The increase is not just about testing more, it’s about hospitals needing to admit more people, and having to treat more people.”

While all entities and activity organizations should carefully review the Minimum Requirements (EnglishEspañola), the Healthy at Work webpage summarizes them as follows:

As emphasized by the Governor, compliance with the above Minimum Requirements is essential to protect employees in all businesses, organizations and activities – both healthcare and non-healthcare – as well as to protect the individuals with whom employees may come into contact both inside and outside of their work and other activities.  Dr. Stack has previously asked employers to make accommodations for those who fall into high risk categories for whom COVID-19 can be deadly.

As set forth in the Minimum Requirements, if any entity fails to comply with the Minimum Requirements, they can be reported to KYSAFER at 833-KYSAFER or kysafer.ky.gov.

Industry Specific Guidance and Timeline for Reopening. Industry specific guidance is in place for each business or activity on the Governor’s Healthy at Work webpage.  The timeline for reopening each business sector and the industry-specific requirements for each business sector or activity, even if operations did not cease during the state of emergency, is as follows (specific requirements that are new with this update are flagged below as “New!” or “Updated!”):

May 9, 2020:

May 11, 2020:

  • Construction – Specific requirements
  • Horse racingnot including the rescheduled Kentucky Derby (no fans)(only authorized employees, Kentucky Horse Racing Commission license holders who have a horse stabled at a racetrack, and those providing support for a horse stabled at a racetrack at the racetrack, e.g., racetrack employees, trainers, assistant trainers, exercise riders, grooms, hot walkers, jockeys, veterinarians, farriers, and feed vendors) – Specific requirements
  • Manufacturing, distribution and supply chain businesses – Specific requirements
  • Office-based businesses (at 50% capacity)(includes finance and accounting, legal, insurance, engineering, architecture, real estate, scientific/technical, property management, non-profit organizations performing administrative services, and other corporate offices and private office-based firms) – Specific requirements
  • Pet grooming and boarding – Specific requirements
  • Photography (limited to family units and groups no larger than 10 provided that individuals who are not living in the same household pose at least 6 feet apart) – Specific requirements
  • Vehicle or vessel dealerships Revised Specific Requirements for 50% capacity as of June 11

May 18, 2020 – Order

May 20, 2020 – Order

May 22, 2020 – Order

  • Restaurants Only (up to 50% capacity + Outdoor Seating effective June 22, 2020) – Specific Requirements 2.0
  • Group of 10 people or fewer – Specific Requirements effective through June 28, 2020 Groups of up to 50 can gather beginning on June 29, 2020 (see below)
  • Travel Ban Lifted Order

May 25, 2020 – Order

Revised Specific Requirements 2.0 were issued to allow for up to 50% capacity effective June 25, 2020 for all of the following businesses.  See the “June 25, 2020” heading below for revised requirements.

  • Barbershops/Cosmetology/Hair Salons
  • Massage Therapy
  • Nail Salons
  • Tanning Salons
  • Tattoo Parlors

June 1, 2020 – Order

  • Auctions – New! See July 1, 2020 for revised specific requirements for up to 50% capacity
  • Auto/Dirt Track Racing –Specific Requirements
  • Aquatic CentersNew! See July 1, 2020 for specific requirements for Public Swimming and Bathing Facilities
  • Bowling AlleysNew! See July 1, 2020 for revised specific requirements for up to 50% capacity
  • Fishing Tournaments –Specific Requirements
  • Fitness Centers – New! See July 1, 2020 for revised specific requirements for up to 50% capacity
  • Kentucky State Park Lodges
  • Movie Theaters – New! See July 1, 2020 for revised specific requirements for up to 50% capacity
  • Salato Wildlife Education Center

June 8, 2020 – Order

  • Educational and Cultural Activities – Specific Requirements
    • Includes aquariums, distilleries, libraries, limited outdoor attractions, museums
    • Does NOT include amusement parks, theme parks, music venues, waterparks, fairs, festivals, sports complex and other convention or entertainment venues that attract large crowds.
  • Horse Shows – Specific Requirements
  • Some Childcare (in-home programs) – Specific Requirements

June 10, 2020  

 June 11, 2020

  • Kentucky Horse Park
  • Kentucky State Park Campgrounds
  • Vehicle or Vessel Dealerships 2.0 – Up to 50% capacitySpecific Requirements

June 15, 2020

June 18, 2020

 June 20, 2020

June 22, 2020

 June 25, 2020

 June 29, 2020

July 1, 2020

 July 10, 2020 – New! Universal face covering order (effective for 30 days)Executive Order

The Specific Requirements are also available in Spanish on the Healthy at Work webpage.

Healthy at Work Signage & Other Resources. Kentucky’s Healthy at Work webpage contains links to several resources businesses can use to help implement the Minimum Requirements. These include signage for employees and customers in English, Spanish and French, including signs for Healthy at Work compliance, Do Not Enter if Sick signs and Grocery Store Signage.  There is also a link to the Kentucky Chamber of Commerce webpage for businesses who need Personal Protective Equipment (PPE) such as hand sanitizer and masks.  The Governor’s Office has developed a Frequently Asked Questions (FAQs) webpage to answer questions on how the Commonwealth is reopening the state’s economy under the Healthy at Work plan.

Healthy at School Reopening Plan.  On June 23, 2020, the Governor, Lt. Governor Jacqueline Coleman and Kevin Brown, the Interim Commissioner of the Kentucky Department of Education (KDE), announced the Healthy at School reopening plans. KDE’s “flagship” document for the reopening of schools is titled Guidance on Safety Expectations and Best Practices for Kentucky Schools (K-12).  Commissioner Brown said that the Guidance is designed to vest decision-making in each of the Commonwealth’s 172 local school districts.  He said this recognizes the state’s long tradition in trusting school districts to make decisions that are best for the students in their individual communities.

The Healthy at School Guidance focuses on the following five areas of safety and best practices:

  • Social Distancing
  • Cloth Face Coverings, School Health Policies and PPE
  • Screening and School Exclusion
  • Sanitation and Environmental Factors
  • Contact Tracking

In regard to the key safety requirements involving social distancing and wearing masks, Commissioner Brown stated that so long as students are positioned six feet from others when sitting in class, the mask can come down. However, when students are seated less than six feet from other students or are in motion, the mask must be on. The motto used by the Commissioner to highlight when students should wear a mask was “When you move, you mask”.

Commissioner Brown highlighted the collaborative process by which the Guidance was developed, with input from the Education Continuation Task Force as well as the Governor’s Office, Department for Public Health, KDE, the Cabinet of Education and Workforce Development and the Cabinet for Health and Family Services.  He said that KDE will continue to seek collaborative input, including from student representatives, as school districts work towards implementing the recommendations and provide feedback.  He stated that additional guidance on pupil transportation, workplace health and safety, facilities and logistics, Career and Tech, Exceptional Learners and Performance-Based Instruction will be released over the coming month.

To review and stay abreast of all Healthy at School guidance documents and announcements, go to KDE COVID-19 Reopening Resources.

New! Traveling to “hot spots” in other states results in positive COVID-19 cases.  During the Governor’s June 24 and July 9 updates, Dr. Stack said that the Public Health Department had identified several clusters of positive COVID-19 cases among Kentuckians who had traveled to Myrtle Beach, South Carolina and other COVID-19 “hot spots” for vacation.  One cluster of 12 travelers to Myrtle Beach resulted in at least 9 individuals testing positive for COVID-19.  They developed symptoms within four days of their return to Kentucky.  Dr. Stack said that Kentuckians in other clusters who traveled to hot spots outside of Kentucky also are testing positive for COVID-19.  In his July 9th update, the Governor implored Kentuckians not to travel to areas of the country that are seeing dramatic spikes in COVID-19.

The Governor frequently reminds the public during his updates that any of the planned reopenings could be paused as needed to protect public health, especially if the Commonwealth’s progress in the fight against COVID-19 is threatened by Kentuckians who let their guard down as a result of the reopenings whether in the Commonwealth or when traveling to other states.

For the latest information on Healthy at Work, click here.  For the latest information on Healthy at School, click here. For the latest information on COVID-19 in Kentucky, go to kycovid19.ky.gov.

Doctors May Face False Claims Act Risks Concerning Telehealth Services

Although Congress is currently considering legislation to permanently implement the temporary telehealth expansion waivers implemented in response to the COVID-19 public health emergency, providers should carefully monitor current federal and state telehealth requirements in the event that the telehealth waivers lapse before permanent changes are made. For Medicare beneficiaries, waivers eliminated the “originating site” requirement and permitted providers to waive or reduce copays for telehealth services. Continuing these practices after the waivers have lapsed could lead to allegations of false claims. Providers may expect to see increased federal enforcement action that attempts to rein in fraudulent activity that often accompanies emergency periods. More information on these risks can be found here.

HHS Launches Additional COVID-19 Testing in Hotspots

On July 7, 2020, in response to surging COVID-19 cases across the country, the Department of Health and Human Services announced free COVID-19 testing in Jacksonville, Florida; Baton Rouge, Louisiana; and Edinburg, Texas. COVID-19 testing at these virus hotspots is available to anyone who is experiencing symptoms, may have been exposed to someone with COVID-19, or is worried about possibly having the virus. Hospital ICUs in many of the states experiencing COVID-19 surges are already near or at capacity. More information on current hospital capacity can be found here and here.  Meanwhile, during Kentucky Governor Beshear’s COVID-19 update on July 9, 2020, Dr. Steven Stack, Commissioner of the Kentucky Department for Public Health, reminded Kentuckians that they do not need a clinician’s order to receive a free COVID-19 test at any of the locations on the testing map displayed at kycovid19.ky.gov.  As of this writing, there are 212 free testing locations for Kentuckians.

HHS Awards Additional Funds to Health Centers for COVID-19 Response

On July 9, 2020, the Department of Health and Human Services, through the Health Resources and Services Administration, awarded $17 million to support Health Center Look-Alikes (LALs) in their COVID-19 response efforts. Health Center LALs are Health Resources and Service Administration award recipients that serve vulnerable populations or are located in underserved areas.  An additional $4.5 million was also awarded to Health Center Controlled Networks, which support health centers by utilizing health information technology to reduce costs and improve care coordination. The funding is intended to strengthen health IT support for participating health centers to effectively prevent and respond to COVID-19.

CMS Revises COVID-19 Medicare Fee-for-Service Billing Guidance for Outpatient Hospital Care

On July 8, 2020, the Centers for Medicare & Medicaid Services (CMS) revised its MLN Matters Article SE20011 on “Medicare Fee-for-Service (FFS) Response to the Public Health Emergency on the Coronavirus (COVID-19)”.  One revision addresses services provided by the hospital in the patient’s home as a provider-based outpatient department when the patient is registered as a hospital outpatient to state as follows:

During the COVID-19 PHE, hospitals may furnish clinical staff services in the patient’s home as a provider-based outpatient department and bill and be paid for these services as Hospital Outpatient Department (HOPD) services when the patient is registered as a hospital outpatient. Hospitals should bill as if the services were furnished in the hospital, including appending the PO modifier for excepted items and services and the PN modifier for non-excepted services. The DR condition code should also be appended to these claims.

Another revision was to add a section on “Teaching Physicians and Residents” which expands the CPT Codes that may be billed with the GE modifier under 42 CFR 415.174 on and after March 1, 2020, for the duration of the public health emergency.  See MLN Matters Article SE20011 for additional information.

CMS Provides Additional Guidance on Telehealth Services Provided by RHCs and FQHCs

On July 6, 2020, CMS updated MLN Matters Article SE20016  to clarify how Rural Health Clinics (RHCs) and Federally Qualified Health Centers (FQHCs) can apply the Cost Sharing (CS) modifier to preventive services furnished via telehealth. The update includes:

  • Additional claim examples
  • New section on the RHC Productivity Standard

There are several CPT and HCPCS codes included in the Article’s list of telehealth codes that describe preventive services that have waived cost-sharing.  See MLN Matters Article SE20016 for additional information.

The CMS Promoting Interoperability Hardship Exception Deadline Extended from July 1 to September 1

The Centers for Medicare & Medicaid Services (CMS) requires that all eligible hospitals use the 2015 Edition certified electronic health record technology (CEHRT) to meet the requirements of the Promoting Interoperability Programs. CMS mandates downward payment adjustments be applied to eligible hospitals that are not meaningful users of CEHRT.  Eligible hospitals may be exempt from Medicare penalties if they can show that compliance with the requirement for being a meaningful EHR user would result in a significant hardship. The deadline for eligible hospitals to submit an application is September 1, 2020, an extension from the original date of July 1, 2020 due to COVID-19.

To be considered for an exemption, eligible hospitals must complete a hardship exception application and provide proof of hardship. If approved, the hardship exception is valid for only one payment adjustment year. Eligible hospitals would need to submit new applications for subsequent years and in no case may an eligible hospital be granted an exception for more than five years.

 

For more information about payment adjustments and hardship information, click here.  For more information on the Promoting Interoperability Programs, visit the CMS website Promoting Interoperability Programs.

Kentucky Imposes Mandatory Face Covering Requirement

In response to the rapid spread of COVID-19 across the country and the rising number of cases in Kentucky, on July 9, 2020, Governor Beshear announced that effective at 5 p.m. on Friday, July 10, people in Kentucky must cover their nose and mouth with a face covering in several enumerated situations that present a high risk of COVID-19 transmission, including health care settings. Several exemptions will apply. The Order is effective for 30 days and will be reviewed and subject to renewal upon its expiration.

Kentucky Lawsuit Seeks Mail-In Option for General Election to Protect Vulnerable Kentuckians

Two Kentucky organizations, the Fair Elections Center and the Kentucky Equal Justice Center, filed suit on behalf of four voters who have health conditions and say that in-person voting would put them at serious risk of contracting COVID-19 during the ongoing public health emergency. The suit seeks to require election officials to apply the same rules to the November 2020 election that were used in the June 2020 primary election, whereby voters were permitted to use mail-in ballots without qualifying conditions for absentee voting.

Hospitals Must Submit COVID-19 Patient Data via Portal for Allocation of Remdesivir Beginning July 6, 2020

As we reported in Wyatt’s weekly COVID-19 Newsletter on July 2, 2020, the U.S. Department of Health & Human Services (HHS), announced on June 29, 2020 an agreement to secure more than 500,000 treatment courses of the drug remdesivir for the United States from Gilead Sciences through September.  As Gilead’s donated supply of remdesivir has been exhausted, U.S. hospitals will be required to purchase the drug at the Wholesale Acquisition Cost (WAC) of approximately $3,200 per treatment course.  The delivery of the purchased remdesivir will be streamlined, shipping directly from AmerisourceBergen to hospitals about every two weeks.

However, a hospital’s bi-weekly purchase will be limited to the amount of remdesivir determined to be its fair share based on current COVID-19 hospitalizations reported by the hospital.  The American Hospital Association (AHA) issued a Special Bulletin last week reminding hospitals to submit their COVID-19 patient data through the U.S. Healthcare COVID-19 TeleTracking Portal each Monday by 8 pm, every two weeks, beginning today, July 6, 2020.  The AHA bulletin further states: “All hospitals should report at least the six data fields for COVID-19 admissions and ICU numbers into TeleTracking, even if they are using another reporting mechanism (e.g., National Healthcare Safety Network, or state reporting) for daily reporting.”

For additional information on how to submit data see the AHA’s Special Bulletin of May 11, 2020.

For additional information, contact Kathie McDonald-McClure, Partner, Louisville Office, Phone (502) 562-7526, Email kmcclure@wyattfirm.com. For more information about Wyatt’s Health Care Legal Service Team and its members, click here.