The coronavirus continues to adversely impact so many, and the court systems across the country are adapting in kind.  Accordingly, the Louisiana Supreme Court has issued orders over the last several weeks to help the court system navigate through these challenging times.  Recently, Louisiana’s Governor, in Proclamation JBE 2020-58, lifted the Stay-at Home Order and modified the emergency provisions in consideration of the ongoing pandemic. In Proclamation JBE 2020-59, the Governor of Louisiana suspended all legal deadlines until at least June 5, 2020.  Below is a digest of the most up-to-date information regarding courts in Louisiana as of the time of this posting.

On May 15, 2020, the Supreme Court repealed and replaced its April 2020 orders.  No jury trials, civil or criminal, will begin before June 30, 2020, pursuant to the Louisiana Supreme Court’s May 15, 2020 order. In-person proceedings are no longer prohibited, and courts are authorized to conduct in-person proceedings on all matters, except those suspended by executive action by the Governor, including, but not limited to evictions.

Courts must continue to take measures to limit access to courtrooms and other spaces, with absolute minimum physical contact, to practice social distancing and limit in-person court capacity to 25% of the total capacity, as determined by the State Fire Marshall, counting both the number of employees and members of the public present in the building at one time. As this situation is constantly changing, courts are further instructed to follow all guidelines issued by the Center for Disease Control, the President, and the Governor, and to further limit access to courtroom and other spaces to the maximum number of people set forth in any future guideline or official proclamation that may be issued. All matters should be conducted with the use of video and telephone conferencing whenever possible.

Please see below for additional court-specific information.

  1. Louisiana Supreme Court: All filings which were or are due to the Court from March 12, 2020 through June 5, 2020 shall be considered timely if filed no later than June 8, 2020.  Parties who are unable to meet this deadline due to the COVID-19 emergency may submit motion for extensions of time, supported by appropriate documentation and argument.
  2. First Circuit Court of Appeal: The court is open with restricted access. The court encourages electronic filings and mail-in filings.  The court continues to process all filings, and all cases with filed briefs will proceed to docketing and disposition. All deadlines set by the court, in all cases pending before the court, are extended until Friday, June 5, 2020.  All filings due during the period of March 12, 2020 through June 5, 2020 or which become due during this period shall be deemed timely if filed on or before June 8, 2020.  Parties who are unable to file within the extended time may submit a motion and order with supporting documentation and argument requesting reconsideration of timeliness or other such relief.
  3. Second Circuit Court of Appeal: All parties must submit filings via e-filing, mail or fax (fax filings are allowed only with prior notification and authorization from the Clerk of Court during normal court business hours).  The next oral argument is scheduled for June 22-23, 2020, either in person or by videoconference, as directed by the court.  Oral arguments for July 20-21, 2020 have been added to the court’s calendar to take place either in person or by videoconference, as directed by the court.  The period of suspension of legal deadlines ending June 5, 2020 is considered a legal holiday such that pleadings due that day are due within seven days of the resumption of normal court operations (June 12, 2020), except that expedited matters, such as cases governed by Uniform Riles- Courts of Appeal, Rule 5 will be due on or before June 8, 2020.
  4. Third Circuit Court of Appeal:  All deadlines are extended until June 5, 2020. All filings due during the period of March 12, 2020 through June 5, 2020 or which become due during this period shall be deemed timely if filed on or before June 8, 2020. All oral arguments scheduled to take place through April 30, 2020 and May 31, 2020 will be submitted on briefs.  All filings must be submitted by email, U.S. mail, or fax filing.
  5. Fourth Circuit Court of Appeal: The Court will have limited physical accessibility starting on May 18, 2020.  All in-person filings must be deposited pursuant to written instructions in the lobby of the Supreme Court building (400 Royal Street, New Orleans, Louisiana). All oral arguments scheduled to take place through April 30, 2020 are continued unless parties notify the court to have their matters submitted on briefs.  All filings due during the period of March 12, 2020 through June 5, 2020 or which become due during this period shall be deemed timely if filed on or before June 8, 2020.
  6. Fifth Circuit Court of Appeal: The court reopened on Monday, May 18, 2020.  All filing deadlines for the court will be suspended until at least June 5, 2020. All filings otherwise due between March 12, 2020 and June 5, 2020 shall be considered timely if filed on or before June 8, 2020. The court will continue to accept email filings and fax filings as a courtesy until June 30, 2020.  Convenience fees association with eFilings will remain waived as a courtesy until June 26, 2020.
  7. United States Court of Appeals for the Fifth Circuit: In-person oral arguments scheduled in New Orleans for April are cancelled. Parties are advised that the court has suspended until further notice the requirement to file paper copies of electronically filed pleadings and documents. The Clerk’s Office remains open for telephonic, electronic, and mail operations. The Clerk of the Court may direct the parties or counsel to provide paper copies of filings on a case-by-case basis, and at a future date, parties or counsel may be directed to provide paper copies of filings previously submitted electronically. All current deadlines for attorney filers remain in effect, except for those regarding production of paper copies. Extensions with justification may be requested from the Clerk’s Office following normal procedures and rules.  The Court has authorized panels to conduct oral arguments using videoconferencing technology or by means of audioconferencing.  The court will, when feasible, provide real-time public access to the audio-only portion of oral arguments that are conducted using videoconferencing technology or by means of audioconferencing. The Court expects that such access will be feasible for most if not all arguments.
  8. United States District Court, Eastern District of Louisiana: The court building is closed. All civil and criminal jury trials scheduled before or on August 1, 2020 are continued to a date to be reset by each presiding judge. With respect to other matters requiring in-person appearances, including bench trials, hearings, conferences,  or  other proceedings in either civil or criminal matters scheduled before or on August 1, 2020, counsel must contact the presiding judge’s chambers to determine whether and how the matter will proceed. Those continuances do not continue any pending deadlines other than the trial dates. Attorneys should contact the presiding judges in their continued cases if they seek to modify such other deadlines. Litigants may file documents electronically, by U.S. mail, or by facsimile. Due to concerns regarding COVID-19, until August 1, 2020, the Clerk’s Office for the Eastern District of Louisiana will not accept sealed documents on paper for filing. Sealed documents should be submitted by email to the Court.
  9. United States District Court, Middle District of Louisiana:  All civil and criminal (bench and jury) trials are postponed to a date to be determined by the presiding judge on or after June 30, 2020.  This postponement does not affect any other pending deadlines other than the pre-trial conference and trial dates. Parties seeking to modify other deadlines must do so by written motion. All civil evidentiary hearings and other in-court hearings and proceedings requiring personal appearances, on the dockets of the United States District Court and the United States Bankruptcy Court, set before June 30, 2020 are hereby postponed, to be reset by, and at the discretion of, the presiding judge. No in-person filings will be accepted through June 30, 2020 or until further order of this Court. Filings in sealed matters which are required to be filed conventionally (in-person) pursuant to administrative procedures shall be filed by facsimile by sending an electronically signed pleading in PDF format via encrypted or secure email (if available).  Non-sealed pleadings and sealed pleadings that are not required to be filed conventionally pursuant to administrative procedures should not be submitted to this email box and must be submitted for filing through CM/ECF. Electronic filing via the CMECF system will be fully functional and help desk support will be available.
  10. United States District Court, Western District of Louisiana: Public access to the Louisiana Western District Clerk of Court Offices in all divisions is suspended through May 31, 2020. The court is closed to tenants and employees through May 8, 2020 and will reopen on May 11, 2020.  All civil and criminal jury trials scheduled to begin on any date from now through July 1, 2020, are continued, to a date to be reset by each presiding judge. All other hearings, conferences and/or proceedings are subject to the discretion of the individual judge presiding over the proceeding. Any court filings or correspondence may be time-stamped and placed in the drop box located in each division.  Any and all payments made to the Clerk, U. S. District Court for the payment of fines, fees, criminal debt or restitution must be made online via www.pay.gov or paid via money order or check and mailed to any divisional office.
  11. Civil District Court for the Parish of Orleans: The court issued its last order on April 30, 2020, extending the closure of Civil District Court for the Parish of Orleans, First City Court, and Second City Court, until 8:00 AM on Monday, May 18, 2020.  All civil jury trials are suspended until July 1, 2020. All civil hearings scheduled between May 1, 2020 and May 18, 2020 may proceed by video conference via Zoom or Skype platform with the consent of the parties. Additionally, the court’s prior order provides that all civil matters that are set during the closure are continued and will be reset by request or by order of the court, and the parties are instructed to contact the division clerk for further instructions. The court’s order does not prohibit any court proceeding by telephone, video conferencing, or any other means that do not involve in-person contact. And the court’s order does not affect the court’s consideration of matters that can be resolved without in-person proceedings. All judgments rendered by a First and Second City Court or Civil District Court judge during the suspension period will be mailed pursuant to La. C.C.P. article 1913, unless notice is waived, after May 15, 2020. With respect to the Civil Division of the Civil District Court for the Parish of Orleans, you can continue to electronically file (e-file) documents and can fax file documents. Additionally, the Clerk of Civil District Court has offered free subscriptions to the Remote Access system, including civil records and land records, to ensure public access.  Existing subscriptions are being extended. For more information, please visit the Civil District Court for the Parish of Orleans’ website or the Clerk of Civil District Court for the Parish of Orleans’ website
  12. 19th Judicial District Court for the Parish of East Baton Rouge: The 19th Judicial District Court for the Parish of East Baton Rouge issued its last order on April 30, 2020, stating it is closed through the end of the business day on Friday, May 15, 2020. Those with pending criminal cases and civil matters set during this closure will be notified of a new court date. All dockets are cancelled except for emergency and time-sensitive matters as determined by the court that may be held by teleconference or video conference. The court’s order expressly does not prohibit any court proceedings by telephone, video conferencing, or any other means. The East Baton Rouge Parish Clerk of Court’s Office will reopen its operations on Monday, May 18, 2020, and its hours will be 8:00 AM to 4:30 PM, Monday thru Friday. For more information, please visit the 19th Judicial District Court’s website or the East Baton Rouge Parish Clerk of Court’s website.
  13. 15th Judicial District Court for the Parishes of Acadia, Lafayette and Vermilion: As of May 18, 2020, the courthouses in Acadia, Lafayette, and Vermillion parishes are open on a limited basis in accordance with certain “Phase One COVID-19 guidelines,” and will close to the public at 4:00 PM each weekday to allow for additional sanitation measures. All people entering the courthouses must wear a mask or face covering that covers the nose and mouth. Civil hearings should be conducted via video and in scheduled time slots, unless good cause can be shown otherwise. All matters that must be taken up in person shall be done in a manner so as to limit the number of people in a courtroom or hallway to 25% capacity and to allow for 6 feet of distancing between people. Only those with direct business with the court are allowed in the courtrooms, and no one is allowed to go to a judge’s office without an appointment. And as per the April 22, 2020 Order of the Louisiana Supreme Court, no civil or criminal jury trials shall commence prior to June 30, 2020. For more information, please visit the 15th Judicial District Court’s website, the Acadia Parish Clerk of Court’s website, the Lafayette Parish Clerk of Court’s website, or the Vermilion Parish Clerk of Court’s website.
  14. 1st Judicial District Court for the Parish of Caddo: As of May 18, 2020, the prior orders restricting access of the public to the courthouse are lifted, but all those entering the courthouse shall wear a mask covering their nose and mouth at all times unless instructed to remove it by courthouse security or court staff. No courtroom shall be permitted to contain, in the public gallery, more people than 25% of its public seating capacity. The court will strive to accomplish the goal of limited courtroom presence by the use of video, by staggering times for the appearance of litigants, and continuing matters that are not time-sensitive in favor of those that are. The court finds that the current health emergency continues to be a factor for the court’s consideration in what constitutes good grounds for continuance of all matters under Louisiana Civil Code Article 1601 to the extent that any continuance is necessary to comply with these orders. The Clerk of Court is directed that matters may be placed on a court’s docket for consent judgment or confirmation of preliminary default judgments only after the judge’s office has approved the setting. This is to confirm that dockets may comport with the court’s order regarding courtroom occupancy. The Caddo Parish Clerk of Court’s Office is now open from 8:30 AM to 5:00 PM, Monday thru Friday. It is still strongly suggested that persons utilize E-Recording/E-filing/Clerk Connect options due to the fact that admittance to the courthouse will be limited to 25% occupancy. For more information, please visit the Caddo Parish Clerk of Court’s website.
  15. 14th Judicial District Court for the Parish of Calcasieu: As of May 18, 2020, the Calcasieu Parish Clerk of Court’s Office is open from 8:30 AM to 4:00 PM, Monday thru Friday, with limited access and services. The Court issued its last order on May 1, 2020, stating that prior orders of this court continuing all civil hearings are rescinded. Non-jury and non-in-person civil matters may proceed as outlined by the Louisiana Supreme Court’s orders regarding such matters. The following matters remain exempt from those orders: (1) civil protective orders; (2) emergency child custody matters; (3) matters of public health; and (4) matters deemed necessary by the Duty Judge as provided by the Louisiana Supreme Court order. A judge will be available at the courthouse between 8:30 AM to 4:30 PM, Monday thru Friday, to handle such matters. For more information, please visit the 14th Judicial District Court’s website or the Calcasieu Parish Clerk of Court’s website.

For more information about state district courts, parish and city courts not mentioned here, visit the Louisiana Supreme Court website for frequently updated court information.

The Louisiana Governor and State Fire Marshal have issued updated guidelines that take effect on May 15, 2020. As of the time of this post, the New Orleans Mayor has not yet issued her formal proclamation, but references are made to those differences with State law that the Mayor has verbally communicated in press conferences. The following applies to restaurants, bars with Department of Health and Hospitals food permits, cafes and coffee shops:

  • Those businesses may begin dine in service under the following conditions:
    • No exceeding 25% State Fire Marshal occupancy (including employees) (per State Fire Marshal – one person per 60 feet of gross area or 25% of posted State Fire Marshal capacity);
    • Maintain strict social distancing between employees and guests with employees wearing face coverings at all times when interacting with the public;
    • Waiting areas must be closed – guests should be required to make reservations or wait outside maintaining social distancing or in vehicles
    • All buffets or common food stations closed;
  • Businesses are allowed to continue drive-up or curbside delivery services;
  • (New Orleans proclamation will require reservations to be taken where the names and contact numbers of customers must be kept for 21 days for contact tracing purposes)
  • All must follow State Fire Marshal guidance (as of May 15th):
    • When possible, maintain at least 6 feet of separation from other individuals not within the same household.
    • Measures such as face covering, hand hygiene, cough etiquette, cleanliness, and sanitation should be rigorously practiced.
    • Tables shall be arranged such that a minimum of 6 feet of distance between persons seated at other tables is maintained, and more specifically:
      • Tables shall be placed a minimum of 6 feet apart, measured from the table edges, where movement or seating between tables is not necessary;
      • Where movement between tables is necessary, or where one person is seated between tables, the tables shall be spaced a minimum of 8 feet apart from the table edges;
    • Where persons are seated at each table back-to-back, the tables shall be spaced a minimum of 10 feet apart from the edges;
    • Booth seating units can be fully utilized if separated by partitions with a height that exceeds the height of an average seated patron’s head. If not, they are subject to spacing as provide above.
    • No more than 10 persons shall be seated at a single table and such parties should be members of the same household.
  • Kitchen and employee area capacity shall be reduced to allow for 6-foot distancing between employees.
  • Indoor live entertainment is not authorized in this Phase.
  • Customers are required to be seated at tables and not congregating in open areas of the establishment.
  • For outdoor seating::
    • Seating reduced to 25% capacity;
    • Tables 10’ apart;
    • Tables limited to groups of 10 people;
    • Self serve or table service allowed;
    • Outdoor live entertainment with no dancing or standing allowed;
    • For tents (same as above plus):
      • Fire extinguisher within 75’ of any tent area
      • If barriers exist, two remotely located exits
      • Minimum 7’6” ceiling height
    • Staff should check for fever and respiratory symptoms daily
      • Clean and sanitize tables and counters, as well as surfaces that customers touch often, like doorknobs, handles, plates, light switches, countertops, refrigerator and freeze door handles, etc. Follow the CDC guidance for proper cleaning and disinfecting.
      • Clean and disinfect the restrooms regularly.
      • Handwashing is the most important hand hygiene that can be done to stop the spread of COVID-19. Gloves are recommended when handling money but not recommended for other tasks that do not normally require gloves. If gloves are worn:
        • Hands should be washed before putting gloves on and after removing gloves.
        • Gloves should be changed often, changed between tasks, changed when they are obviously soiled, and changed after each interaction with a new individual.
      • Do not touch the customers.

Phase 1 is anticipated to last from Friday, May 15, 2020 to Friday, June 5, 2020. If you have any questions concerning the foregoing, please do not hesitate to contact Jill Gautreaux at (504) 620-3366 or jill.gautreaux@keanmiller.com.

For clients having operations in Louisiana which were affected by the recent Louisiana stay-at-home order (which expired May 14, 2020), the State Fire Marshal has released new phasing plan requirements as Louisiana moves into Phase 1 of reopening.  The link can be found here.  Guidance is broken down as follows:

  • Outdoors sports
  • Business/Organizations
  • Fitness centers/health clubs
  • Libraries
  • Movie theaters
  • Museums/zoos/aquariums
  • Places of worship
  • Restaurants
  • Salons/barber shops

These phasing requirements are in conjunction with Governor John Bel Edwards’ new proclamation found here.

Note that essential (critical) infrastructure businesses are not further restricted by the Fire Marshal’s new guidelines and may continue to operate under existing guidelines (if any) applicable to your business.

Businesses should periodically check for updates.  Those businesses that register with OpenSafely.la.gov should be aware of the fact that the state has announced that it will do periodic compliance checks, and by registering your business, the state has proof that your business was made aware of the requirements.

On May 13, 2020, the USCG published a Notice of Proposed Rulemaking advising of its intent to amend and update the regulations governing financial responsibility for environmental pollution under OPA 90 and CERCLA. Triggering these changes include a desire to close compliance gaps that cause untimely responses to oil spills due to operators failings to timely report certain changes relevant to financial responsibility. The USCG also aims to improve its ability to verify vessel compliance with COFR Regulations. In the USCG’s own words: “These changes are necessary to manage the COFR program more effectively, reduce the burden to the public, and accommodate the frequent changes in vessel operation during the normal course of maritime commerce.” Additional revisions focus on the National Pollution Fund Center’s administration of the COFR program, including a technologically-competent update regarding electronic record keeping. Highlights of the proposed changes include:

  • 33 CFR Part 138, Subpart A: Extending the regulatory requirement to establish and maintain evidence of financial responsibility to any tanker vessel between 100 and 300 gross tons.
    • Expands the population of vessels under 300 gross tons that are required to establish and maintain evidence of financial responsibility under 33 USC 2716, by removing an exception for vessels not engaged in transshipping or lightering.
  • New regulatory text expressly authorizing COFR Operators, guarantors, and agents for service of process to submit signed scanned documents.
  • Permitting COFR Operators submitting Applications or requests for COFR renewal by email or fax to pay COFR Application and certification fees up to 21 days after submission;
    • This method would replace the current rule’s requirement to pay certification fees before the NPFC issues the COFR.
    • Clarifies that Master Certificates do not name any specific vessel, but do state the maximum tonnages for the largest vessel for which the COFR Operator may be responsible.
    • Requires the COFR Operator to include a report with the Application providing information on the vessels covered by the Master Certificate.
    • Add a new requirement that certain Master Certificate application information be updated.
  • Updating and simplifying the provisions that detail how to apply gross tonnage assigned under different measurement systems.
    • This reflects changes in the law since OPA 90’s initial legislation and conforms the regulatory text to the Coast Guard’s “Measurement of Vessels” final rule (81 FR 18701, March 31, 2016), which amended the U.S. Tonnage regulations in 46 CFR part 69;
    • Requires reporting of the gross tonnage measurement system used and submission of a copy of the tonnage certifying document, upon request;
  • Adding new provisions describing the COFR program’s current procedures for determining the acceptability of COFR guarantors.
    • Modifying past technical amendments to implement the Electronic COFR (eCOFR).
    • Removes surety bonds as a specifically mentioned method for establishing and maintaining evidence of financial responsibility, because it falls under the “other method” provision.
    • Formalizes the current NPFC practice of guarantor liability for 30 days following NPFC receipt of notice of cancellation.
    • Describes current practice for establishing and maintaining the acceptability of COFR insurance guarantors;
    • Clarifies the net worth and working capital requirements for financial guarantors to reflect current practice, which requires net worth and working capital to be based on the aggregate total applicable amounts of each vessel owned by one operator.
  • Revises reporting requirements to emphasize prior notices of change that will require a new COFR before the change occurs;
    • Changes that will require issuance of a new COFR include, but are not limited to: a permanent vessel transfer, change of COFR Operator, vessel name change, change in the vessel’s gross tonnage, or termination of guaranty.
  • The proposed revisions also clarify and simplify terminology for consistency with law and COFR business practices.
  • Removes 33 CFR part 135 (OCLSA Fund) and subpart D of 33 CFR Part 153 (311(k) Fund) because OPA 90 repealed the legal authorities for them.

The USCG and OMB will collect public comments on the proposed rulemaking on the Federal Register’s Website, which will be open until August 11, 2020.

The Small Business Administration (“SBA”) issued an update to its “Frequently Asked Questions for Lenders and Borrowers for the Paycheck Protection Program,” adding question #46 and the response, which is recited below.  For PPP loans of less than $2 million, the borrower will be “deemed to have made the required certification concerning the necessity of the loan request in good faith.”  PPP loans greater than $2 million will be subject to SBA review for compliance. If the SBA concludes that “a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request,” it will seek repayment. Importantly, if the loan is repaid in response to such notification, the SBA will not pursue administrative enforcement or referrals to other agencies in regard to the loan necessity certification.

  1. Question: How will SBA review borrowers’ required good-faith certification concerning the necessity of their loan request?

Answer: When submitting a PPP application, all borrowers must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” SBA, in consultation with the Department of the Treasury, has determined that the following safe harbor will apply to SBA’s review of PPP loans with respect to this issue: Any borrower that, together with its affiliates,20 received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.

SBA has determined that this safe harbor is appropriate because borrowers with loans below this threshold are generally less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans. This safe harbor will also promote economic certainty as PPP borrowers with more limited resources endeavor to retain and rehire employees. In addition, given the large volume of PPP loans, this approach will enable SBA to conserve its finite audit resources and focus its reviews on larger loans, where the compliance effort may yield higher returns.

Importantly, borrowers with loans greater than $2 million that do not satisfy this safe harbor may still have an adequate basis for making the required good-faith certification, based on their individual circumstances in light of the language of the certification and SBA guidance. SBA has previously stated that all PPP loans in excess of $2 million, and other PPP loans as appropriate, will be subject to review by SBA for compliance with program requirements set forth in the PPP Interim Final Rules and in the Borrower Application Form. If SBA determines in the course of its review that a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request, SBA will seek repayment of the outstanding PPP loan balance and will inform the lender that the borrower is not eligible for loan forgiveness. If the borrower repays the loan after receiving notification from SBA, SBA will not pursue administrative enforcement or referrals to other agencies based on its determination with respect to the certification concerning necessity of the loan request. SBA’s determination concerning the certification regarding the necessity of the loan request will not affect SBA’s loan guarantee.

On March 27, 2020, Louisiana’s Insurance Commissioner, Jim Donelon, issued Emergency Rule 39 in response to the COVID-19 pandemic. Emergency Rule 39 provides all commercial insureds in Louisiana the right to demand a “mid-term self-audit” to determine if their policy premiums should be reduced, as long as the commercial insurance policies are “rated using an auditable exposure basis, including but not limited to, payroll, sales, enrollment, attendance, occupancy rates, square footage or any other basis.” The rule is intended to assist Louisiana’s businesses that have lower risk exposure due to the record number of layoffs and business closures amid the ongoing COVID-19 pandemic.

Many commercial insurance policies (including, but not limited to, general liability and property policies) are rated based on payroll, sales, enrollment, attendance, occupancy rates, and/or square footage; therefore, many Louisiana business should be able to take advantage of the rule. However, to take advantage of the rule, a company must demand a “mid-term self-audit” from their insurer before the termination of Emergency Rule 39, which is currently set for May 12, 2020. Once demanded, the insured will have until end of its policy period to complete the self-audit.

Upon the insured’s completion and submission of the self-audit to its insurer, the insurer must adjust the premium and refund any overpayment of premium to the insured within 10 days, if the self-audit establishes that the premium charged at the initiation of the policy is now in excess of what the premium would be based on the current rating variables.

It is currently unclear whether Emergency Rule 39 will be extended following Governor Edwards’ most recent proclamation extending non-essential business closures through May 15, 2020, therefore, business owners must act fast.

The full text of Emergency Rule 39 can be found here.

For more information, or guidance on demanding or performing a self-audit for your business, contact Elizabeth Wilson, Michael deBarros, or Mark Mese.

The Louisiana Legislature is currently considering proposed legislation which would provide workers’ compensation coverage for essential workers during the COVID-19 pandemic.[1]  The proposed law states that every essential worker who is disabled because of the contraction of the COVID-19 disease is entitled to the same compensation as if that essential worker had received personal injury by accident arising out of and in the course of his employment, which is nearly identical language to the workers’ compensation law for occupational diseases.  See LSA R.S. 23:1031.1.

The proposed law broadly defines essential workers as “persons working in public safety, government, emergency response, health care, or private business as designated and deemed necessary or critical for the response to the COVID-19 pandemic by their employer or by virtue of their official commission.”  This essential worker requirement is notably broader than the requirements for a claimant to prove an occupational disease.  Under Louisiana law, a workers’ compensation claimant asserting a claim for an occupational disease must show that the disease or illness is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employees is exposed to such disease.  The proposed COVID-19 legislation appears to differ from the occupational disease law with respect to proving the disease was contracted due to conditions characteristic of and peculiar to the claimant’s particular job.  The proposed law also covers essential workers and their dependents whose death is caused by COVID-19.

Interestingly, the proposed law does not reference a standard of proof for medical causation of COVID-19 arising out of one’s employment, but merely requires that an employee disabled by COVID-19 be designated as an “essential worker” in order to receive compensation.  The Louisiana Workers’ Compensation Act generally provides that causation must be proven by a “preponderance of the evidence,” which means that it is more likely than not that a disability was caused by a work-related incident, or in these cases, exposure to the virus at work.  Some claims require a heightened standard of “clear and convincing evidence,” such as when an employee is totally disabled from doing any type of work.

Any comorbid or pre-existing conditions that an employee had at the time of the alleged exposure will likely impact the causation analysis.  The presence of comorbid and/or pre-existing conditions will certainly affect claims that are asserted by an essential worker’s’ dependents who passed away after contracting COVID-19.

Claims by employees against their employers alleging contraction of COVID-19 are inevitable as the pandemic continues to affect workers, especially essential workers on the front lines.  Each case alleging a disability due to COVID-19 will require extremely fact-specific determinations.  For now, employers are wise to rely on the guidance set forth by the CDC and other government directives, which will likely serve as the starting point for the Workers’ Compensation Courts in determining the reasonableness of their response to workplace safety concerns.

For more information, contact Forrest Guedry.

[1] Available at: https://www.legis.la.gov/legis/ViewDocument.aspx?d=1168160.

Under the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), most pesticides must be registered and are subject to product labeling requirements.  FIFRA defines a “pesticide” as “any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest.” 7 U.S.C. § 136(u).  A “pest” is defined in the statute to mean: “(1) any insect, rodent, nematode, fungus, weed, or (2) any other form of terrestrial or aquatic plant or animal life or virus, bacteria, or other micro-organism (except viruses, bacteria, or other micro-organisms on or in living man or other living animals) which the Administrator declares to be a pest under section 136w(c)(1).” 7 U.S.C. § 136(t).

Pesticide products that are intended for a “pesticidal purpose” must obtain a registration from the Environmental Protection Agency (“EPA”), unless they are covered by an exemption from the implementing rules in 40 C.F.R. Part 152.  If the seller or distributor of a product claims or implies that the product prevents, destroys, repels or mitigates a pest, then the product is considered to be intended for a “pesiticidal purpose.” Thus, if a product is claimed or implied to destroy, repel or mitigate the COVID-19 virus on its label or other product literature (including websites), then such product must be registered with EPA under FIFRA.  Each act of sale or distribution of an unregistered pesticide is a violation of FIFRA subject to enforcement action.

Key exclusions are set forth in 40 C.F.R. § 152.10, which provides in part:

The following types of products or articles are not considered to be pesticides unless a pesticidal claim is made on their labeling or in connection with their sale and distribution:

(a) Deodorizers, bleaches, and cleaning agents;

(b) Products not containing toxicants, intended only to attract pests for survey or detection purposes, and labeled accordingly;

(c) Products that are intended to exclude pests only by providing a physical barrier against pest access, and which contain no toxicants, such as certain pruning paints to trees.

(Emphasis added.) (Additional exclusions are beyond the scope of this article.) So to the extent a deodorizer, bleach, or cleaning agent does not make a “pesticidal claim,” then the FIFRA rules do not apply. However, be aware that the term “pesticidal claim” is relatively broad. EPA will consider claims of antimicrobial properties and/or having a similar composition to a FIFRA-registered product as evidence that the registration process is required.

Fortunately, EPA has published a list of pesticide products that have been registered with EPA and meet the criteria for use against the SARs-CoV-2 virus that causes COVID-19. The list is available at: https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2.  EPA will be updating the list as additional products are registered and meet its criteria. These products may be sold for use to combat COVID-19 without fear of enforcement by EPA under FIFRA (provided no claims are made on their label or marketing materials, including websites, that go beyond the approved product registration statements submitted to EPA for the FIFRA registration).

In August 2016, EPA also adopted guidance under FIFRA to “identify effective disinfectant products for use against emerging viral pathogens and to permit registrants to make limited claims of their product’s efficacy against such pathogens.” This guidance and process apply only to emerging viruses. Titled “Guidance to Registrants: Process for Making Claims Against Emerging Viral Pathogens Not on EPA-Registered Disinfectant Labels,”[1] the guidance  establishes a fast-track two-step process for obtaining FIFRA approval for products already registered as effective against the same viral subgroup.   The first step requires the registrant to request an amendment to its product label to indicate that the product may be effective against emerging viruses in the same sub-group as it is already approved for.  This can be done before or during an emerging virus outbreak. In the second step, the FIFRA approved label amendments could be used in off-label communications intended to inform users of the product that the product may be used against the specific emerging virus, but only after the Centers for Disease Control and Prevention has identified the emerging virus (so that is sub-group can be identified) and has recommended environmental surface disinfection to help control its spread.

EPA has announced that it will take aggressive enforcement action under FIFRA with regard to sale of unregistered disinfectants to protect the public.  EPA has also indicated it will take enforcement action against sellers of registered products to prevent fraud and false claims concerning the ability of such disinfectants to combat COVID-19 where the claims are not supported by the product registration. For example, the seller of a product registered under FIFRA as being effective to combat bacteria, could not claim that the product is effective against a virus without going through the FIFRA registration process with regard to the virucidal properties of the product.  EPA inspectors, federal law enforcement officers, and certain state environmental and law enforcement entities will assist with inspections and enforcement.  EPA has indicated that it will use both its “stop-sales” order authority and penalty authority under FIFRA to prosecute violations of FIFRA.

For more information, contact Lauren Rucinski or Maureen Harbourt.

[1] Available at: https://www.epa.gov/pesticide-registration/guidance-registrants-process-making-claims-against-emerging-viral-pathogens.

The coronavirus continues to adversely impact so many, and the court systems across the country are adapting in kind.  On April 30, 2020, Louisiana’s Governor in Proclamation JBE 2020-52 extended the suspension of all legal deadlines at least until May 15, 2020.  Further, the Louisiana Supreme Court has issued orders over the last several weeks to help the court system navigate through these challenging times. Below is a digest of the most up-to-date information regarding courts in Louisiana as of the time of this posting.

On April 29, 2020, the Supreme Court amended its April 22, 2020 order as it pertains to remote proceedings. All provisions of the April 6, 2020 Order as modified on April 22, 2020 will remain in place except that judges are now encouraged to conduct all court matters by remote conferencing, to the extent that proceedings can be conducted in that manner.

All jury trials, civil or criminal, were continued until June 30, 2020 pursuant to the Louisiana Supreme Court’s April 22, 2020 order. In-person proceedings are prohibited until May 18, 2020, unless to address emergency matters that cannot be resolved virtually.

Courts must continue to take measures to limit access to courtrooms and other spaces, with absolute minimum physical contact, to practice social distancing and limit in-person court activity to only the emergency matters. As this situation is constantly changing, courts are further instructed to follow all guidelines issued by the Center for Disease Control, the President and the Governor, and to further limit access to courtroom and other spaces to the maximum number of people set forth in any future guideline or official proclamation that may be issued. All emergency matters should be conducted with the use of video and telephone conferencing whenever possible.

Hearings related to civil protective orders, child in need of care proceedings, emergency child custody matters, proceedings for children removed from their home by emergency court order, proceedings related to emergency interdictions and mental health orders,  temporary restraining orders and mental health orders, and matters of public health related to this crisis and other emergency matters necessary to protect the health, safety and liberty of individuals as determined by each court are considered emergency civil matters that should be conducted via video and/or telephone conferencing.

Court proceedings by telephone, video, teleconferencing or any other means that do not involve in-person contact may proceed with consent of all parties and the judge. Further, courts may consider matters that can be resolved without in-person proceedings.  Per its April 22, 2020 order, the Louisiana Supreme Court ordered that consent for remote proceedings in civil matters “shall not be unreasonably withheld by any party” and provided that a trial judge can enforce this Order “pursuant to authority granted by the Louisiana Code of Civil Procedure Article 191 or as expressly provided by law.”

Courts should work with parish clerks to encourage in-person filings of court pleadings to be replaced with filing by other means, such as U.S. mail, e-filing, email or facsimile. In all criminal, juvenile and civil matters handled on an emergency or expedited basis, a record shall be kept under the direction of the acting judge for each action.

Please see below for additional court-specific information.

  1. Louisiana Supreme Court: All filings which were or are due to the Court from March 12, 2020 through May 15, 2020 shall be considered timely if filed no later than May 18, 2020.  Parties who are unable to meet this deadline due to the COVID-19 emergency may submit motion for extensions of time, supported by appropriate documentation and argument.
  2. First Circuit Court of Appeal: The court is closed until May 15, 2020 unless extended by further order. The court will still handle administration of emergency matters. All oral arguments are continued without date and will be scheduled to take place as soon as possible after May 15, 2020. The court will accept filings via U.S. Mail and e-filing. All deadlines set by the court in all cases pending before the court are extended until Friday, May, 15, 2020.  All filings due during the period of March 12, 2020 through May 15, 2020 or which become due during this period shall be deemed timely if filed on or before May 18, 2020.
  3. Second Circuit Court of Appeal: All parties must submit filings via e-filing, mail or fax (fax filings are allowed only with prior notification and authorization from the Clerk of Court during normal court business hours). Payments for fax or e-filing fees must be mailed. No in-person filings will be accepted. The entire April docket has been reset for May 18, 2020.
  4. Third Circuit Court of Appeal: The courthouse shall maintain restricted access until May 15, 2020 unless extended by further order.  All deadlines are extended until May 15, 2020. All oral arguments scheduled to take place through April 30, 2020 and May 31, 2020 will be submitted on briefs.  All filings must be submitted by email, U.S. mail, or fax filing.
  5. Fourth Circuit Court of Appeal: The Court shall remain physically inaccessible though May 15, 2020 and will reopen May 18, 2020. All oral arguments scheduled to take place through April 30, 2020 are continued unless parties notify the court to have their matters submitted on briefs. All filings must be submitted via e-filing.  The court will send all notices by electronic means.
  6. Fifth Circuit Court of Appeal: The court is closed, but court operations are occurring remotely.  All filing deadlines for the court will be suspended until at least May 15, 2020. All filings otherwise due between March 12, 2020 and May 15, 2020 shall be considered timely if filed on or before May 18, 2020. The court will accept e-filings and emergency fax filings while closed.  Filings by mail will be processed as circumstances allow.  No in-person filings are allowed.
  7. United States Court of Appeals for the Fifth Circuit: In-person oral arguments scheduled in New Orleans for April are cancelled. Parties are advised that the court has suspended until further notice the requirement to file paper copies of electronically filed pleadings and documents. The Clerk’s Office remains open for telephonic, electronic, and mail operations. The Clerk of the Court may direct the parties or counsel to provide paper copies of filings on a case-by-case basis, and at a future date, parties or counsel may be directed to provide paper copies of filings previously submitted electronically. All current deadlines for attorney filers remain in effect, except for those regarding production of paper copies. Extensions with justification may be requested from the Clerk’s Office following normal procedures and rules.  The Court has authorized panels to conduct oral arguments using videoconferencing technology or by means of audioconferencing.  The court will, when feasible, provide real-time public access to the audio-only portion of oral arguments that are conducted using videoconferencing technology or by means of audioconferencing. The Court expects that such access will be feasible for most if not all arguments.
  8. United States District Court, Eastern District of Louisiana: The court building is closed. All civil and criminal jury trials scheduled before or on August 1, 2020 are continued to a date to be reset by each presiding judge. With respect to other matters requiring in-person appearances, including bench trials, hearings, conferences,  or  other proceedings in either civil or criminal matters scheduled before or on August 1, 2020, counsel must contact the presiding judge’s chambers to determine whether and how the matter will proceed. Those continuances do not continue any pending deadlines other than the trial dates. Attorneys should contact the presiding judges in their continued cases if they seek to modify such other deadlines. Litigants may file documents electronically, by U.S. mail, or by facsimile. Due to concerns regarding COVID-19, until August 1, 2020, the Clerk’s Office for the Eastern District of Louisiana will not accept sealed documents on paper for filing. Sealed documents should be submitted by email to the Court.
  9. United States District Court, Middle District of Louisiana:  All civil and criminal (bench and jury) trials are postponed to a date to be determined by the presiding judge on or after June 30, 2020.  This postponement does not affect any other pending deadlines other than the pre-trial conference and trial dates. Parties seeking to modify other deadlines must do so by written motion. All civil evidentiary hearings and other in-court hearings and proceedings requiring personal appearances, on the dockets of the United States District Court and the United States Bankruptcy Court, set before June 30, 2020 are hereby postponed, to be reset by, and at the discretion of, the presiding judge. No in-person filings will be accepted through June 30, 2020 or until further order of this Court. Filings in sealed matters which are required to be filed conventionally (in-person) pursuant to administrative procedures shall be filed by facsimile by sending an electronically signed pleading in PDF format via encrypted or secure email (if available).  Non-sealed pleadings and sealed pleadings that are not required to be filed conventionally pursuant to administrative procedures should not be submitted to this email box and must be submitted for filing through CM/ECF. Electronic filing via the CMECF system will be fully functional and help desk support will be available.
  10. United States District Court, Western District of Louisiana: Public access to the Louisiana Western District Clerk of Court Offices in all divisions is suspended through May 31, 2020. The court is closed to tenants and employees through May 8, 2020 and will reopen on May 11, 2020.  All civil and criminal jury trials scheduled to begin on any date from now through July 1, 2020, are continued, to a date to be reset by each presiding judge. All other hearings, conferences and/or proceedings are subject to the discretion of the individual judge presiding over the proceeding. Any court filings or correspondence may be time-stamped and placed in the drop box located in each division.  Any and all payments made to the Clerk, U. S. District Court for the payment of fines, fees, criminal debt or restitution must be made online via www.pay.gov or paid via money order or check and mailed to any divisional office.
  11. Civil District Court for the Parish of Orleans: On April 30, 2020, the court issued an order extending the closure of Civil District Court for the Parish of Orleans, First City Court, and Second City Court, until 8:00 AM on Monday, May 18, 2020.  All civil jury trials are suspended until July 1, 2020. All civil hearings scheduled between May 1, 2020 and May 18, 2020 may proceed by video conference via Zoom or Skype platform with the consent of the parties. Additionally, the court’s prior order provides that all civil matters that are set during the closure are continued and will be reset by request or by order of the court, and the parties are instructed to contact the division clerk for further instructions. The court’s order does not prohibit any court proceeding by telephone, video conferencing, or any other means that do not involve in-person contact. And the court’s order does not affect the court’s consideration of matters that can be resolved without in-person proceedings. All judgments rendered by a First and Second City Court or Civil District Court judge during the suspension period will be mailed pursuant to La. C.C.P. article 1913, unless notice is waived, after May 15, 2020.With respect to the Civil Division of the Civil District Court for the Parish of Orleans, you can continue to electronically file (e-file) documents and can fax file documents. Additionally, the Clerk of Civil District Court has offered free subscriptions to the Remote Access system, including civil records and land records, to ensure public access.  Existing subscriptions are being extended. For more information, please visit the Civil District Court for the Parish of Orleans’ website or the Clerk of Civil District Court for the Parish of Orleans’ website
  12. 19th Judicial District Court for the Parish of East Baton Rouge: The 19th Judicial District Court for the Parish of East Baton Rouge is closed through the end of the business day on Friday, May 15, 2020, and those with pending criminal cases and civil matters set during this closure will be notified of a new court date. All dockets are cancelled except for emergency and time-sensitive matters as determined by the court that may be held by teleconference or video conference. The court’s order expressly does not prohibit any court proceedings by telephone, video conferencing, or any other means. The East Baton Rouge Parish Clerk of Court’s Office will be closed to the general public during this same time period, except that it will be open only for emergency filings between the hours of 8:00 AM to 12:00 PM Monday thru Friday. During this period of closure, e-filing through Clerk Connect and fax filing will be accepted. For more information, please visit either the 19th Judicial District Court’s website or the East Baton Rouge Clerk of Court’s website.
  13. 15th Judicial District Court for the Parishes of Acadia, Lafayette and Vermilion: All civil jury trials scheduled to commence prior to June 30, 2020 will be continued and reset. All civil hearings, including motions for summary judgment, are to be conducted by video or telephone conference, unless good cause can be shown otherwise. Communication will be sent from each judge’s office concerning scheduling of video conferences, and you should contact the presiding judge’s office if you do not receive such communication. In Lafayette and Vermilion parishes, the courthouses shall be closed to the public except to provide services in the following categories: (1) civil domestic protective orders under title 46:2131 (domestic violence), 46:2181 (post-separation family violence), and 9:361 (sexual abuse); (2) emergency child custody matters pursuant to La. C.C.P. article 3945; (3) proceedings for children removed from their home by emergency court order; and (4) emergency interdiction/commitment matters. In Acadia Parish, the Clerk’s Office will accept filings between the hours of 8:30 AM to 4:00 PM Monday thru Friday so long as the procedure articulated in the court’s order is followed. The court’s order also provides that any member of the public allowed entry into the courthouse in Acadia, Vermilion or Lafayette Parish shall wear a mask or other face covering, which shall completely cover the mouth and face. For more information, please visit the 15th Judicial District Court’s website, the Acadia Parish Clerk of Court’s website, the Lafayette Parish Clerk of Court’s website, or the Vermilion Parish Clerk of Court’s website.
  14. 1st Judicial District Court for the Parish of Caddo: The Court’s website advises that you should not come to the courthouse unless absolutely necessary, and you will only be allowed in the courthouse if necessary. All members of the public entering the courthouse shall wear a mask covering their nose and mouth at all times unless instructed to remove it by courthouse security or court staff. Through May 15, 2020, all civil and domestic trials, hearings and court appearances are hereby continued, to be reset by order with the following exceptions: (1) civil protective orders; (2) emergency child custody matters pursuant to La. C.C.P. article 3945; (3) emergency interdictions; (4) public health matters related to the current health emergency; (5) civil commitments where the party is in continued involuntary custody; and (6) any matter in which a rule to show cause is granted after the moving party sets forth written grounds why the matter should proceed despite the concerns surrounding the coronavirus and that rule is set for hearing by the court. The Clerk of Court is directed that matters may be placed on a court’s docket for consent judgment or confirmation of preliminary default judgments only after the judge’s office has approved the setting. The Clerk’s Office will be open from 8:30 AM to 1:00 PM Monday thru Friday until further notice. A small staff will be on hand until 4:30 PM Monday thru Friday to answer phones and to complete filings and e-recordings. For more information, please visit the Caddo Parish Clerk of Court’s website.
  15. 14th Judicial District Court for the Parish of Calcasieu: On May 1, 2020 the court issued an order stating that prior orders of this court continuing all civil hearings are hereby rescinded. Non-jury and non-in-person civil matters may proceed as outlined by the Louisiana Supreme Court’s orders regarding such matters. The following matters remain exempt from those orders: (1) civil protective orders; (2) emergency child custody matters; (3) matters of public health; and (4) matters deemed necessary by the Duty Judge as provided by the Louisiana Supreme Court order. A judge will be available at the courthouse between 8:30 AM to 4:30 PM Monday thru Friday to handle such matters. The Clerk’s Office has no public access except for filings pursuant to the Louisiana Protective Order statutes, pursuant to Louisiana Code of Civil Procedure articles 3945 and 3601, and to request a property bond for the purpose of bonding someone out of jail. Through May 15, 2020, the Clerk’s Office has reduced hours from 8:30 AM to 12:30 PM Monday thru Friday for the purposes of accepting the above-mentioned filings and any other filings which, by law, require original documents to be filed. All other filings will be accepted by the Calcasieu Clerk of Court’s office Monday thru Friday by U.S. mail, electronic filing, and facsimile filing. For more information, please visit the Calcasieu Parish Clerk of Court’s website.

For more information about state district courts, parish and city courts not mentioned here, visit the Louisiana Supreme Court website for frequently updated court information.

The Centers for Medicare and Medicaid Services (“CMS”) has issued additional blanket waivers retroactive to March 1, 2020 through the end of the emergency declaration to help healthcare providers contain the spread of COVID-19.  The updated waivers were released on April 29, 2020 and are an update from those issued on April 21, 2020.  The goal of the waivers is to make it easier for Medicare and Medicaid beneficiaries to get tested for COVID-19 and to provide flexibility to the healthcare system as America reopens.  Providers may begin to use these waivers immediately.  The changes announced by CMS include new rules to support and expand COVID-19 diagnostic testing for Medicare and Medicaid beneficiaries; increasing hospital capacity; removing barriers for hiring healthcare professionals; decreasing administrative burdens and further expanding telehealth and Medicare.

 COVID-19 Testing

With the new waivers, Medicare will no longer require an order from a treating physician or other practitioner for Medicare beneficiaries to get COVID-19 tests and laboratory tests required for a COVID-19 diagnosis.  COVID-19 tests will be covered when ordered by any healthcare professional who is authorized to do so under state law.  A written practitioner’s orders also are no longer required for Medicare to pay for the COVID-19 test.  For example, a pharmacist can work with a practitioner to provide an assessment and specimen collection with the physician or other practitioner billing Medicare for the services.  Pharmacists can perform COVID-19 tests if they are enrolled in Medicare as a laboratory if it is within the pharmacist’s scope of practice according to state law.  This waiver would allow beneficiaries to get tested at pharmacies and other types of healthcare entities in order to help expand COVID-19 testing capacity.  CMS will pay practitioners to assess beneficiaries and collect laboratory samples for COVID-19 testing and make a separate payment if that is the only service the patient receives.  CMS also announced that Medicare and Medicaid will cover certain serology antibody tests and laboratory processing of certain FDA-authorized tests that beneficiaries may self-collect at home.

Expansion of Hospitals

CMS will allow hospitals to provide services at other health care facilities and sites that are not part of the existing hospital to help address patient needs.  For example, CMS will allow freestanding inpatient rehabilitation facilities to accept patients from acute care hospitals even if the patients do not require rehabilitation care.  The purpose is to make use of available beds in freestanding inpatient rehabilitation facilities to help acute care hospitals make room for COVID-19 patients.  CMS will also pay for outpatient hospital services such as wound care, drug administration, and behavioral health services delivered in a temporary expansion location.  CMS will allow certain provider-based hospital outpatient departments that relocate to off campus sites to continue to be paid under the outpatient prospective payment system.  Additionally, long term acute care hospitals can accept any acute care hospital patients and be paid at the higher Medicare payment rate pursuant to the CARES Act.

Healthcare Professionals

Nurse practitioners, clinical nurse specialists and physicians’ assistants will be allowed to provide home health services pursuant to the CARES Act for beneficiaries who need in-home services.  These licensed practitioners can now order home health services, establish and periodically review a plan of care for home health patients; and certify and recertify that the patient is eligible for home health services.  Previously only a physician could certify a patient for home health services.  This change is effective for both Medicare and Medicaid beneficiaries.  CMS will allow physical and occupational therapists to delegate maintenance therapy services to therapy assistants in an outpatient setting.  As with hospitals, CMS is now waiving a requirement for ambulatory surgical centers to periodically reappraise medical staff privileges during the emergency thereby allowing physicians and other practitioners whose privileges are expiring to continue taking care of patients during the emergency.

Partial Hospitalization Services

CMS will allow the following partial hospitalization services to be delivered in temporary expansion locations including patients’ homes:  individual psychotherapy; patient education; and group psychotherapy.  Community mental health centers may offer partial hospitalization and other mental health services to clients in the safety of their own homes.  CMS will not enforce certain clinical criteria in local coverage determinations that limit access to therapeutic continuous glucose monitors for beneficiaries with diabetes.  Clinicians will have the flexibility to allow more of their diabetic patients to monitor their glucose and adjust insulin doses at home.

Telehealth

CMS is attempting to further expand telehealth for Medicare by waiving limitations on the type of clinical practitioners that can furnish telehealth services.  Previously only doctors, nurse practitioners and physician assistants could deliver telehealth services; however, now other practitioners such as physical therapists, occupational therapists and speech language pathologists can also provide telehealth services.  CMS will allow hospitals to bill for services furnished remotely by hospital-based practitioners to Medicare patients who are registered as hospital outpatients including counseling, educational services, and therapy services.  Hospitals can bill as the originating site for the telehealth services if services furnished by a hospital-based practitioner to Medicare patients when the patient is at home.

CMS is broadening the list of services that can be conducted by audio only telephone to include many behavioral health and patient education services.  CMS will be increasing payments for telephone visits to match payments for similar office and outpatient visits.  The payments will be retroactive to March 1, 2020.  CMS is changing the process to add new telehealth services on a “sub-regulatory basis” by considering prices from practitioners who are now using telehealth.  CMS is now paying for Medicare telehealth services provided by rural health clinics in federally qualified health clinics, allowing beneficiaries located in rural and other medically underserved areas more options to access care from their home without having to travel.

CMS is waiving the video requirement for certain telephone evaluations resulting in Medicare beneficiaries being able to use audio-only telephones to get these services.   The designated codes permissible for audio-only telephone evaluation can be found at https://www.cms.gov/Medicare/Medicare-general-information/telehealth/telehealth-codes.