State Launching Online Tracking System for COVID-19 Contact Tracing

by Partners, Tyson Gorman and Kathie McDonald-McClure and Summer Associate, Joseph Profancik

Editor’s Note: This article was supplemented by notes that were taken during the May 21, 2020 webinar provided by the Kentucky Chamber of Commerce, featuring Governor Beshear and Mark Carter, discussing plans for the launch of the State’s contact tracing program.

While speaking virtually to the Kentucky Chamber of Commerce, Gov. Beshear noted that the initial models suggested as many as 80,000 Kentuckians could be infected by COVID-19. However, he said Kentuckians’ social distancing and other positive efforts have flattened the curve. Gov. Beshear also stated that flattening the curve came at a cost, but he believes the economic hardship is only temporary. The reopening of the economy will help the recovery so long as we do it in a sustainable manner.

Testing and tracing will be critical to preventing a second outbreak. Gov. Beshear stated that we cannot politicize these two necessary steps. Our community and business leaders must promote testing and tracing so that we can protect each other. If there is an attempt to politicize these measures, the Governor asks that we push them aside. He said that both the National Governors Association and the White House are promoting the practice of testing and tracing as well.


“We are at a place that we always dreamed that we would be,” said Gov. Beshear. As of May 21, 2020, Kentucky has enough capacity to do 2.5 times the White House recommended testing each month. The new challenge is getting people tested so that we can identify asymptomatic individuals. According to the webpage, there are now over 150 testing locations throughout the state. The Governor urged everyone to get tested as Kentucky continues with reopening under the Healthy at Work plan. See our article, The Kentucky “Healthy at Work” Phased Reopening.


Contact tracing, which is funded through the CARES Act, is expanding to meet both the White House and Governor’s benchmarks for safely reopening the economy. On May 18, 2020, Gov. Beshear announced the appointment of Mark Carter as executive adviser leading the contact tracing efforts in the Office of the Secretary of the Cabinet for Health and Family Services (CHFS) and in coordination with the Department of Public Health. Carter said the expanded seven-month contact tracing program combines public participation and the power of technology to help public health officials and health care providers contain the spread of COVID-19. The information provided is kept completely private and confidential. Information regarding the individuals who have COVID-19 and people they have made in-person contact with recently is not released or made public.

Overview of Contact Tracing Process: 

Kentucky is not currently using a COVID-19 contact tracing mobile app as part of its tracing efforts, but rather is using human-led efforts to track the Coronavirus in the community.  Employed individuals in the program will utilize contact tracing technology to collect and manage the data essential to identifying individuals exposed to COVID-19 in order to reduce the risk of transmission in the community. Most individuals with COVID-19 are entered in the contact tracing technology via reports by healthcare providers who are responsible for reporting all positive COVID-19 tests to their local health departments. The local health department will enter COVID-19 positive cases into the contact tracing technology for follow-up by the contact tracing team.

Three key positions will carry out the mission of the contact tracing program: Disease Investigators; Contact Tracers; and Social Support Coordinators. The Disease Investigator is responsible for calling individuals who have COVID-19, confirming their lab results, verifying their isolation needs, and asking about potential contacts. The Contact Tracer is responsible for calling the individuals who have been exposed to COVID-19, providing information, and accessing their risks. The contacts will be classified as low, medium, or high risk, dependent upon the extent of the contacts. This will help determine whether or not the contact should be isolated for a period of 14 days. Carter emphasized that the identity of the COVID-19 patient will not be disclosed to the individuals with whom that patient has been in contact. Finally, the Social Support Coordinator helps support indicated needs of individuals who must self-isolate, such as food, child-care and contacting employers. Although several of the key positions have been onboarded already, Carter said that additional applicants are being sought.

Business Community Support is Critical

Both Governor Beshear and Carter said that the cooperation of businesses will be critical to the success of the contact tracing program. Businesses should make their employees aware that they may be contacted by a public health worker to gather information regarding a COVID-19 patient. Employers can also help employees understand the importance of answering that public health worker’s call.  Carter said that the role each employee plays in contact tracing is critical to protecting the ones we care about, our friends, family and co-workers. Employers should help employees understand that the focus of contact tracing is on keeping folks well. Carter used the following slide to lay out the key roles employers play in contact tracing:

Picture1The public can watch a video illustrating how Kentucky’s contact tracing program will work. The state has provided the following additional resources helpful to employers in emphasizing to employees the important role that contact tracing plays on containing the virus to keep Kentuckians safe and businesses open:


Questions and Answers from the Kentucky Chamber of Commerce Webinar:

What happens to the data from tracing and who has access to it?

Flexibility has been added to HIPAA to balance privacy protections while ensuring that health care providers appropriately share information with the CDC, family members of patients, first responders and others, to help address the COVID-19 emergency.  Contacts will only be informed that they may have been exposed to a patient with the infection, and the name of the patient will not be disclosed to the contacts. The information will be destroyed in accordance with relevant regulations.

If someone comes in contact with me and I am contacted by a contact tracer who asks me to stay home from work, could I be eligible for unemployment once again?

The unemployment insurance coverage was expanded by executive order.  However, the Governor’s Office is continuing to look into an executive order to address this specific issue.

How can people apply for these positions?

There will be a link on the website which provides staffing agencies that help identify candidates based upon region. Hopefully this link will be up by the close of business May 22, 2020.

How are we addressing schools specifically?

School districts have been asked to come up with plans for several different scenarios that can be anticipated. The Governor met with several district officials on May 21, 2020 to discuss implementing a similar plan tailored for schools.

How will contact tracing apply to healthcare workers?

Most healthcare providers have their own testing procedures. However, the same mechanism for contact tracing will apply.

In a Kentucky Chamber poll, 81% of respondents said that they are ready to return to normal.

Despite the desire to return to “normal,” as Governor Beshear has emphasized in his daily 5PM updates, until there is an effective vaccine readily available to everyone, Kentuckians cannot let up the good work they have done so far to help contain the virus. For the duration of the state of emergency, businesses should follow both the Minimum Requirements that apply to all businesses, organizations and recreational activities as well as the additional applicable specific requirements as set forth on Kentucky’s Healthy at Work webpage.

CMS Requires All Nursing Homes to Report Confirmed and Suspected COVID-19 Cases

In April, the Centers for Medicare & Medicaid Services (CMS) announced that it will require nursing home facilities to report COVID-19 information to the CDC and to residents’ families. On May 8, CMS issued an Interim Final Rule with Comment Period with new regulatory requirements. Nursing homes were required to begin reporting data through the CDC’s National Healthcare Safety Network module beginning May 8, but no later than May 17. All nursing homes should be in compliance with this reporting requirement at this time.

AMA Issues Guidance on Physician Use of COVID-19 Antibody Tests

On May 14, 2020, The American Medical Association (AMA) issued guidance cautioning physicians and the general public about the use of serology, or antibody, testing to determine individual immunity to COVID-19. More specifically, while these tests may be helpful in determining the overall prevalence of COVID-19 in the U.S. population, these tests have several inherent limitations. First, they can provide false positive results, leading individuals to believe they are immune when in fact they may be able to acquire and transmit the virus. Second, some of these tests may suffer from “cross-reactivity,” where the test identifies not only antibodies to the SARS-CoV-2 virus causing COVID-19 but to other viruses as well, thus falsely indicating that the patient had been infected with COVID-19. Finally, much is still unknown about COVID-19 and it is still unclear exactly what “immunity” those who are recovering from infection may have or how long it may last. The AMA provides several recommendations for the use and reliance on serology tests.

HEROES Act Faces Unlikely Future

On Friday, May 15, 2020, the U.S. House of Representatives passed the $3 trillion Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act. Among other financial awards, the Act would provide an additional $100 billion into the provider relief fund to support hospitals and other health care providers and establish a $200 billion Heroes’ fund to ensure that essential workers who have continued to work through the COVID-19 pandemic receive hazard pay. However, the U.S. Senate is unlikely to advance the HEROES Act.

CMS Releases Additional Waivers for Hospitals and Ground Ambulance Organizations

On May 19, 2020, CMS released the following additional waivers to provide flexibilities needed to take care of patients for the duration of the COVID-19 public health emergency (PHE), including:

  • Modification of existing physical environment waivers for surge capacity and patient quarantine at hospitals, psychiatric hospitals and critical access hospitals so as to permit facility and non-facility space that is not normally used for patient care to be utilized for patient care or quarantine, provided the location is approved by the state and is consistent with the state’s emergency preparedness or pandemic plan; and
  • Modification of the data collection and reporting periods for ground ambulance organizations.

For additional information on these waivers, see the CMS “COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers” document, pp. 4 and 29, marked “(Modified since 5/11 Release).

HHS Awards Rural Health Clinics with $225 Million to Expand Virus Testing

On May 20, 2020, the Department of Health and Human Services (HHS) announced that rural health clinics (RHCs) will receive $225 million to expand COVID-19 diagnostic testing. This funding will be divided among 4,500 RHCs, each clinic receiving almost $50,000. These funds can be used to implement testing programs, buy testing supplies, train staff, build or expand facilities, and report testing data to HHS. 267 Kentucky RHCs will receive these funds, totaling $13,206,199. For more information, click here.

Skilled Nursing Facilities Receive $4.9 Billion Distribution to Combat COVID-19

On May 22, 2020, the Department of Health and Human Services (HHS) announced that it has begun distributing additional relief funds to skilled nursing facilities hit hard by the COVID-19 pandemic. Each facility with six or more certified beds will receive a fixed distribution of $50,000, plus a variable distribution of $2,500 per bed. Facilities must attest that they will only use these distributions for permissible purposes set forth in the Terms and Conditions accompanying the funds.


Wyatt’s Pat Mulloy Elected Chairman of Argentum Board of Directors

Wyatt, Tarrant & Combs is pleased to announce that Pat Mulloy, a member of the Firm’s Corporate & Securities Team, has been elected Chairman of the Argentum Board of Directors. Mr. Mulloy previously served as Argentum’s Vice Chairman. Argentum is the leading national association that is exclusively dedicated to supporting companies operating professionally managed, resident-centered senior living communities and the older adults and families they serve. Argentum has been advocating for choice, independence, dignity and quality of life for all older adults since 1990.

Click here to read the full press release. 

The Supreme Court of Kentucky Issues Guidance Regarding Upcoming Trials

By Marianna J. Michael

Shortly after releasing its guidelines for reopening courts in the Commonwealth, the Supreme Court of Kentucky provided further guidance in regards to upcoming trials. The Order builds in time for courts to prioritize criminal proceedings that have been delayed as a result of COVID-19. As such, the Order makes the following provisions:

  • All jury trials currently scheduled to occur before August 1, 2020 are to be postponed and rescheduled no sooner than August 1, 2020 with in-custody criminal trials having priority over all other proceedings.
  • Grand jury proceedings may resume on June 1, 2020 and may be conducted remotely via available telephonic or video technology subject to the applicable Rules of Criminal Procedure.
  • Access to view the return of indictments pursuant to RCr 5.20 must be provided to members of the public and media through live audio or video or by digital recording.
  • Any case where the 60-day period in RCr 5.22(3) or an extension thereof was tolled by operation [of] Order 2020-28 shall be presented to the grand jury on or before July 30, 2020. The Commonwealth’s Attorney is encouraged to give priority to cases where the defendant is in custody and proceedings have been tolled by the Supreme Court’s response to the COVID-19 emergency.
  • Existing grand jury panels may be extended at the discretion of the court, subject to the 20-day limitation set out in AP Part II, Sec. 19(3).
  • Jurors who are ill, caring for someone who is ill, or in a high-risk category shall have their jury service postponed to a later date.
  • Jurors who are unable to wear a facial covering because doing so would pose a serious threat to their health or safety shall have their jury service postponed to a later date.
  • Jurors who were laid off, became unemployed, or otherwise suffered an economic loss due to the COVID-19 pandemic, and who show they would suffer further economic loss as a result of jury service, shall be excused for undue hardship.

The Order, which can be found here, will take effect on June 1, 2020 and shall remain in effect until further guidance is published. Return here for additional updates on the judiciary’s response to COVID-19.


A Practical Guide to Employee Temperature Screening

Michelle D. Wyrick and Lilian Williams

As businesses begin the first stages of reopening or increasing employee capacity, many have implemented or intend to implement temperature screening procedures. Some businesses are required to screen employee temperatures as a precondition to open under state or local law, as seen in Kentucky, while other businesses look to screen employee temperatures as a precautionary measure. Click here to read more.