Supreme Court of Kentucky Limits In-Person Proceedings With New Orders

written by Marianna Michael

On November 20, 2020, the Supreme Court of Kentucky issued two new Administrative Orders regarding hearings. Orders 2020-71 and 2020-72  replace Administrative Orders 2020-63 and 2020-64 which were published in early November as guidance to courts in “red zone” counties. With nearly each of Kentucky’s 120 counties at or near “red zone” status, the Court is again mandating many of the restrictions imposed earlier this summer.

Court Facilities

  • Entrance to court facilities is limited to: (i) attorneys, parties, witnesses, jurors, domestic violence advocates, and other persons scheduled to appear at in-person hearings; (ii) individuals seeking emergency protective orders, interpersonal orders, emergency custody orders, and involuntary commitments; (iii) individuals attending judicial sales; (iv) individuals who have scheduled an appointment to access a physical case file; and (v) individuals with appointments for driver’s license services; and (vii) individuals reporting for scheduled drug tests.
  • Courts will continue to have signage reiterating proper COVID procedures prior to entering buildings and upon entering the facilities.
  • Individuals not permitted into Kentucky Court of Justice (“KCOJ”) facilities, but still required to make payment or report to or appear before the court, will be provided with a phone number or email address and must make arrangements to reschedule, appear remotely, or otherwise complete their business to avoid possible adverse action being taken by the court.
  • Individuals are prohibited from bringing purses or other similarly enclosed bags into court facilities, unless items in the bag are medically necessary. Items necessary for business before the court should be carried by hand or brought in an open container allowing for visual inspection.

Courts

  • All civil and criminal jury trials shall be postponed until February 1, 2021, with in-custody criminal trials taking priority over all other matters.
  • Courts shall hear civil and criminal matters using telephonic and video technology, with in-person hearings being held for emergency and time-sensitive matters including but not limited to, domestic violence hearings, emergency custody hearings, temporary child support hearings, evidentiary hearings in criminal cases, in-custody arraignments, in-custody preliminary hearings under RCr 3.10, in custody bond motions, in-custody probation violation hearings, and in-custody juvenile detention hearings.
  • Grand jury proceedings shall be conducted remotely via available telephonic or video technology subject to the applicable Rules of Criminal Procedure.
  • All residential and commercial eviction hearings shall proceed subject to various considerations.
  • All show cause dockets for payment of fines and court costs shall be rescheduled no sooner than February 1, 2021.
  • Judges should continue to issue summonses or notices to appear in lieu of bench warrants, unless the judge has good cause to believe a defendant will not appear voluntarily upon a summons or notice to appear.
  • Night traffic courts in Jefferson County are suspended until further notice.
  • Court orders requiring remote attendance of a party or the party’s counsel shall have the same effect as if requiring in-person attendance. Failure to appear remotely as ordered by a court may be grounds for sanctions.
  • Attorneys should continue to prepare and litigate cases, including providing discovery, negotiating possible resolutions, filing motions, and conducting investigations, to minimize delay in bringing cases to trial or resolution to the extent possible.

Office of Circuit Court Clerk

  • All filings must be mailed, eFiled or conventionally filed using a drop-box outside the judicial facility.
  • Payments for court costs, fines, fees, and restitution can be made by money order mailed to the circuit clerk’s office or by cash or credit card by calling the local circuit clerk’s office. Pre-payable citations can be paid online through ePay at kycourts.gov.
  • Individuals posting bond should contact the local circuit clerk’s office for further instruction.
  • Driver’s licenses, permits and identification cards that expire or are lost or stolen from March 1, 2020 through Feb. 28, 2021, must be renewed through the remote application process provided by the Office of Circuit Court Clerk in the county in which the cardholder resides, as provided in Transportation Cabinet Official Order 112301.
  • In-person appointments for individuals who need a new driver’s license, permit, identification card, or commercial driver’s license must schedule with the Office of Circuit Court Clerk and individuals who need in-person appointments for permit testing and road testing must schedule through the Kentucky State Police.

Staffing

  • All KCOJ employees who can telework, should do so.
  • Elected officials must determine appropriate in-person staffing based on various factors and submit staffing plans to the Human Resources Department at the Administrative Office of the Courts to ensure appropriate tracking of employees’ work hours.
  • Judges and circuit court clerks must collaborate to ensure there is adequate staff to prepare for and cover court dockets or other proceedings.

General Health and Safety Protocols for KCOJ Employees and Officials

  • All KCOJ officials are required to follow social distancing protocols and wear facial coverings while interacting with co-workers or in common areas of the building.
  • Each chief circuit judge must take steps to ensure that KCOJ employees and members of the public exercise appropriate social distancing in any court facility occupied by the KCOJ within their circuit. The Administrative Office of the Courts (“AOC”) Director or designee must take steps to ensure that AOC employees and members of the public exercise appropriate social distancing in all AOC offices, as well.
    • In mixed-use facilities, the chief circuit judge is responsible for ensuring appropriate social distancing practices in the space occupied by the KCOJ, including the common areas.
    • Any common area that cannot be configured to maintain appropriate social distancing must be closed.
    • To the extent possible, waiting lines or rooms should be eliminated through the use of appointments or other remote services. Areas should be demarked with six-foot spacing to maintain appropriate social distancing between individuals who are not members of the same household unit.
    • Each chief circuit judge and the AOC Director or designee must ensure that proper arrangements are made for cleaning and disinfecting of the court facilities in their circuit and all AOC offices, consistent with the KCOJ COVID-19 Health and Safety Requirements.

As with previous orders, the Orders encourage chief district and chief circuit judges to develop local plans and enter local court rules regarding any additional restrictions or changes in local procedure, consistent with the Order. The Order is effective beginning November 30, 2020 until further guidance is published.

Court Facilities

  • Entrance to court facilities is limited to: (i) attorneys, parties, witnesses, jurors, domestic violence advocates, and other persons scheduled to appear at in-person hearings; (ii) individuals seeking emergency protective orders, interpersonal orders, emergency custody orders, and involuntary commitments; (iii) individuals attending judicial sales; (iv) individuals who have scheduled an appointment to access a physical case file; and (v) individuals with appointments for driver’s license services; and (vii) individuals reporting for scheduled drug tests.
  • Courts will continue to have signage reiterating proper COVID procedures prior to entering buildings and upon entering the facilities.
  • Individuals not permitted into Kentucky Court of Justice (“KCOJ”) facilities, but still required to make payment or report to or appear before the court, will be provided with a phone number or email address and must make arrangements to reschedule, appear remotely, or otherwise complete their business to avoid possible adverse action being taken by the court.
  • Individuals are prohibited from bringing purses or other similarly enclosed bags into court facilities, unless items in the bag are medically necessary. Items necessary for business before the court should be carried by hand or brought in an open container allowing for visual inspection.

Courts

  • All civil and criminal jury trials shall be postponed until February 1, 2021, with in-custody criminal trials taking priority over all other matters.
  • Courts shall hear civil and criminal matters using telephonic and video technology, with in-person hearings being held for emergency and time-sensitive matters including but not limited to, domestic violence hearings, emergency custody hearings, temporary child support hearings, evidentiary hearings in criminal cases, in-custody arraignments, in-custody preliminary hearings under RCr 3.10, in custody bond motions, in-custody probation violation hearings, and in-custody juvenile detention hearings.
  • Grand jury proceedings shall be conducted remotely via available telephonic or video technology subject to the applicable Rules of Criminal Procedure.
  • All residential and commercial eviction hearings shall proceed subject to various considerations.
  • All show cause dockets for payment of fines and court costs shall be rescheduled no sooner than February 1, 2021.
  • Judges should continue to issue summonses or notices to appear in lieu of bench warrants, unless the judge has good cause to believe a defendant will not appear voluntarily upon a summons or notice to appear.
  • Night traffic courts in Jefferson County are suspended until further notice.
  • Court orders requiring remote attendance of a party or the party’s counsel shall have the same effect as if requiring in-person attendance. Failure to appear remotely as ordered by a court may be grounds for sanctions.
  • Attorneys should continue to prepare and litigate cases, including providing discovery, negotiating possible resolutions, filing motions, and conducting investigations, to minimize delay in bringing cases to trial or resolution to the extent possible.

Office of Circuit Court Clerk

  • All filings must be mailed, eFiled or conventionally filed using a drop-box outside the judicial facility.
  • Payments for court costs, fines, fees, and restitution can be made by money order mailed to the circuit clerk’s office or by cash or credit card by calling the local circuit clerk’s office. Pre-payable citations can be paid online through ePay at kycourts.gov.
  • Individuals posting bond should contact the local circuit clerk’s office for further instruction.
  • Driver’s licenses, permits and identification cards that expire or are lost or stolen from March 1, 2020 through Feb. 28, 2021, must be renewed through the remote application process provided by the Office of Circuit Court Clerk in the county in which the cardholder resides, as provided in Transportation Cabinet Official Order 112301.
  • In-person appointments for individuals who need a new driver’s license, permit, identification card, or commercial driver’s license must schedule with the Office of Circuit Court Clerk and individuals who need in-person appointments for permit testing and road testing must schedule through the Kentucky State Police.

Staffing

  • All KCOJ employees who can telework, should do so.
  • Elected officials must determine appropriate in-person staffing based on various factors and submit staffing plans to the Human Resources Department at the Administrative Office of the Courts to ensure appropriate tracking of employees’ work hours.
  • Judges and circuit court clerks must collaborate to ensure there is adequate staff to prepare for and cover court dockets or other proceedings.

General Health and Safety Protocols for KCOJ Employees and Officials

  • All KCOJ officials are required to follow social distancing protocols and wear facial coverings while interacting with co-workers or in common areas of the building.
  • Each chief circuit judge must take steps to ensure that KCOJ employees and members of the public exercise appropriate social distancing in any court facility occupied by the KCOJ within their circuit. The Administrative Office of the Courts (“AOC”) Director or designee must take steps to ensure that AOC employees and members of the public exercise appropriate social distancing in all AOC offices, as well.
    • In mixed-use facilities, the chief circuit judge is responsible for ensuring appropriate social distancing practices in the space occupied by the KCOJ, including the common areas.
    • Any common area that cannot be configured to maintain appropriate social distancing must be closed.
    • To the extent possible, waiting lines or rooms should be eliminated through the use of appointments or other remote services. Areas should be demarked with six-foot spacing to maintain appropriate social distancing between individuals who are not members of the same household unit.
    • Each chief circuit judge and the AOC Director or designee must ensure that proper arrangements are made for cleaning and disinfecting of the court facilities in their circuit and all AOC offices, consistent with the KCOJ COVID-19 Health and Safety Requirements.

As with previous orders, the Orders encourage chief district and chief circuit judges to develop local plans and enter local court rules regarding any additional restrictions or changes in local procedure, consistent with the Order. The Order is effective beginning November 30, 2020 until further guidance is published.

Supreme Court of Kentucky Issues Guidance for Counties in “Red Zones”

woman wearing face mask

Written by Marianna J. Michael

With COVID-19 cases increasing and cases expected to continue to rise during the colder months, the Supreme Court of Kentucky issued new safety precautions that courts throughout the state are encouraged to follow. Unlike prior Orders, this guidance does not supersede the Supreme Court’s latest COVID-related Administrative Orders, 2020-63 and 2020-64.

The Court recommends court officials check their respective county’s COVID status on a weekly basis on the Kentucky Coronavirus Monitoring Map. If a county is in the COVID “red zone,” the following recommendations apply:

  • Court Proceedings. All court proceedings should be conducted remotely.
  • Jury Trials. Jury trials should be postponed until the county returns to the yellow zone.
  • Offices of Circuit Court Clerk. Circuit court clerks should close their offices to in-person services. All filings should be mailed, eFiled, or conventionally filed using a drop box provided outside the judicial facility. All payments for court costs, fines, fees and restitution should be made by money order mailed to the Office of Circuit Court Clerk or by cash or credit card by calling the office.
  • Access to Court Facilities. Access to court facilities should be limited to attorneys and parties required to attend emergency, in-person hearings and individuals seeking emergency protective orders, interpersonal protective orders and emergency custody orders.
  • Masks and Social Distancing. Proper use of facial coverings and social distancing while in court facilities should be strictly enforced.
  • Teleworking. All court employees who are able to telework should be encouraged to do so. 

Return here for additional updates on the judiciary’s response to COVID-19.

Hospitals Must Report Daily Flu, COVID-19 Data to HHS

On October 6, 2020, the Department of Health and Human Services (HHS) announced that starting October 7, hospitals will have 14 weeks to comply with federal COVID-19 data-reporting requirements.  This timeline follows the interim final rule published on September 2 that requires all Medicare and Medicaid-certified hospitals to provide daily data updates to HHS on numerous COVID-related measures.  Under the new guidance, hospitals will also have to provide similar data about the seasonal flu.  Failure to make the mandatory reporting could result in exclusion from the Medicare and Medicaid programs.

Antigen Testing

On September 28, 2020, the Kentucky Department of Public Health released guidance to providers regarding interpretation of results from point-of-care antigen tests:

  • A positive result in an individual with symptoms consistent with COVID-19 or with history of specific exposure to COVID-19 provides presumptive laboratory evidence and the individual would be classified as a probable COVID-19 case.
  • A positive result in an individual with no symptoms and no history of specific exposure to COVID-19 is recommended to be immediately followed by a PCR test to verify the positive result.
  • A negative result in an individual with no symptoms and no history of exposure to COVID-19 would be taken at face value and would not require additional follow-up.

A negative result in an individual with symptoms consistent with COVID-19 would be only presumptively negative. This individual would continue as a person under investigation pending verification of that negative antigen test with a negative PCR test.  A negative result in an individual with history of specific exposure to COVID-19 would not eliminate the need for quarantine.

Guidance for Celebrating Halloween

jack o lantern on a wooden bench

On October 1, Kentucky Governor Andy Beshear and Kentucky Public Health issued Guidance for Celebrating Halloween designed to curb the spread of COVID-19.  This document provides guidance for parents and guardians, community members, and operators of events and attractions on ways to lower risks and, if trick-or-treating is permitted, tips on doing it safely:

  • Place individually wrapped candy outside on the porch, driveway, or table.
  • Maintain a social distance of at least 6 feet from anyone not within your household.
  • Always wear a face covering. Halloween masks DO NOT count as a face covering.
  • Clean hands before and after touching the wrapped candy.
  • Trick-or-treat in family groups and don’t congregate in large groups.
  • Trick-or-treat in your own neighborhood and do not travel to other neighborhoods.

This guidance is also summarized in a one-page document entitled Celebrate Halloween Safely

CHFS Clarifies State Guidance on Essential Workers

On September 10, 2020, the Cabinet for Health and Family Service’s Department for Public Health issued guidance clarifying that in the face of the ongoing COVID-19 pandemic and the reopening of all industries in the state, only healthcare workers and first responders fall into the category of “critical” workers who may be exempt from specific quarantine requirements if exposed to a confirmed COVID-19 case. This classification narrows the definition of what constitutes an “essential critical infrastructure worker” under the federal advisory list on the Essential Critical Infrastructure Workforce for workforces in Kentucky.

CMS Will Require Positive COVID-19 Test for Inpatient Medicare Reimbursement Add-On

On August 17, 2020, the Centers for Medicare & Medicaid Services (CMS) published new guidance stating that effective September 1, 2020, hospitals will be required to document a positive COVID-19 laboratory test to receive a 20% increase in the MS-DRG weighting factor for their inpatients being treated for COVID-19. Positive tests must be demonstrated using only the results of viral testing consistent with CDC guidelines either performed during the hospital admission or not more than 14 days prior to the hospital admission (certain limited exceptions apply).

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.

CHFS Clarification on Medicaid Add-on Billing

On July 10, 2020, the Kentucky Cabinet for Health and Family Services (CHFS) issued guidance to health care facilities clarifying that the lab result is the source document for billing start/stop dates. Billing starts when the positive test result is received and continues until the COVID-19 resident is released from isolation (i.e., considered recovered) based on negative lab results. EXAMPLE: Test results are available on a Friday night, but not pulled until Saturday morning, so Friday would be billable if COVID-level care was provided through that day.

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.