Kentucky Supreme Court Unanimously Upholds Executive COVID Response Orders

On November 12, 2020, the Supreme Court of Kentucky, overruling a lower court, unanimously upheld Governor Andy Beshear’s authority to issue executive orders in an emergency. Attorney General Daniel Cameron had joined three Northern Kentucky business owners in contesting executive orders issued by Governor Beshear in response to the COVID-19 pandemic. The plaintiffs argued that the restrictions exceeded Governor Beshear’s constitutional powers.

The court limited its opinion to the issues before it, making note of certain hot button issues it was not addressing. In regard to masks, the court only ruled on whether the penalty provisions in the emergency regulation are enforceable. The court also did not address restraints on religious activities, since those issues were not before the court and the issue had previously been litigated in federal court. The court also did not address restraints on elective medical procedures.

Governor Beshear’s actions were challenged in relation to KRS Chapter 13A and provisions of the Constitution of Kentucky. The court ruled that Governor Beshear properly declared a state of emergency pursuant to KRS 39A.100, which authorizes the governor to declare a state of emergency in the event of the occurrence of any of the situations or events contemplated under KRS 39A.010. The plaintiffs argued that KRS Chapter 13A limits the governor’s powers under KRS Chapter 39. The court ruled that nothing in the text of KRS 39A requires consideration of Chapter 13A or promulgation of regulations. Simply put, “the Governor can choose to act solely through executive orders.” Further, the court found that Governor Beshear’s executive orders do not violate Sections 1 or 2 of the Kentucky Constitution because they are not arbitrary. Finally, the court ruled that the Boone Circuit Court’s ruling, which granted injunctive relief prohibiting enforcement of Governor Beshear’s orders or regulations, was improper because the plaintiffs were unable to prove that they suffered irreparable injury. The court held that, “[e]ven if some Plaintiffs arguably have established irreparable harm to their businesses, that alone is insufficient to justify an injunction precluding enforcement of emergency orders and regulations directed to the protection of the health and safety of all Kentuckians.” The Supreme Court of Kentucky’s full opinion can be found here.

CMS Clarifies COVID-19 Telehealth Billing for Registered Dietitians and Nutritional Professionals

On November 12, 2020, the Centers for Medicare & Medicaid Services (CMS) clarified in its MLN Connects (the official CMS weekly news from its Medicare Learning Network®) that Non-Practitioners, including registered dietitians and nutrition professionals, can use the COVID-19 CPT Codes 98966-98968 to bill for audio-only telephone assessment and management services.   

Kentucky Providers Can Enroll to Administer COVID-19 Vaccines

On November 2, 2020, the Kentucky Department for Public Health (KDPH) issued a letter instructing healthcare providers interested in administering COVID-19 vaccines to enroll as a COVID-19 vaccine provider here. The KDPH is anticipating a late 2020 to early 2021 release of new vaccines in limited quantities, which will be distributed according to the statewide vaccination plan prioritizing vaccinations among certain populations. This COVID-19 Vaccine Provider Enrollment Checklist provides instructions for enrollment.

Kentucky Supreme Court Upholds Governor’s Emergency Executive Order Authority

On November 12, 2020, the Kentucky Supreme Court issued a unanimous ruling that the executive orders issued by Governor Andy Beshear under the COVID-19 state of emergency are lawful under Kentucky’s constitution. Justice Lisabeth T. Hughes said that the orders “were, and continue to be, necessary to slow the spread of COVID-19 and protect the health and safety of all Kentucky citizens.” Consequently, all of the Governor’s current mandates will stay in place, including the executive orders requiring face coverings, capacity limits on businesses including restaurants and bars, and healthcare providers’ and pharmacies’ expanded authority and scope of practice during the emergency.  For a further discussion of the court’s decision, see this blog post on the Wyatt Employment Law Report.  The Governor’s Executive Orders related to reopening Kentucky’s economy are linked on the Governor’s Team Kentucky webpage for Healthy at Work.

Medicare Beneficiaries can Receive Monoclonal Antibodies with No Cost Share

On November 10, 2020, the Centers for Medicare & Medicaid Services (CMS) announced  that Medicare beneficiaries can receive coverage of monoclonal antibodies to treat COVID-19 with no cost-sharing during the public health emergency. This treatment can be received in doctors’ offices, nursing homes, infusion centers, and hospitals, as long as safety conditions can be met. CMS intends to issue billing and coding instructions to providers for these treatments soon. Healthcare providers who intend to administer these treatments must be enrolled to administer COVID-19 vaccines. More information is available in the related instructions.