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.

[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.

On Monday, the Federal Reserve Board announced significant expansions of the Municipal Liquidity Facility (“MLF”). The MLF was unveiled on April 9, 2020 as part of the federal initiative to provide trillions in loans to shore up those affected by the coronavirus pandemic. In a nutshell, the MLF is designed to provide a liquidity backstop to issuers of eligible short-term notes. The MLF will now offer up to $500 billion in lending to states and municipalities to help manage cash flow stresses caused by the coronavirus pandemic.

One major criticism of the original MLF was that it was only accessible by larger political subdivisions. For example, no parishes or cities in Louisiana qualified as eligible issuers under the original MLF. Under the revised program, the MLF will purchase short -term notes issued by states and the District of Columbia, counties/parishes with a population of at least 500,000 residents, and cities with a population of at least 250,000 residents. The new population thresholds will obviously allow substantially more public entities to borrow directly from the MLF than the initial plan. New Orleans, which was one of the cities hardest hit by the coronavirus, is now an eligible issuer.

Another criticism was that the maximum term of the notes (24 months) was too short to be useful. Under the revised program, notes must mature no later than 36 months from the date of issuance. In addition, among other rating requirements, eligible issuers must have had an investment grade rating as of April 8, 2020, from at least two major nationally recognized statistical rating organizations. The termination date for the MLF has also been extended to December 31, 2020 in order to provide eligible issuers greater flexibility.

Recognizing that most political subdivisions themselves will not meet the population threshold, the MLF allows states, cities and counties to use the proceeds of their notes to purchase the notes of, or otherwise assist, any of their political subdivisions or other governmental entities. Importantly, if an eligible issuer uses the proceeds of its notes to purchase the notes of one of its political subdivisions, the MLF will not assume the risk of these notes.  Regardless of the use of proceeds, the eligible issuer would bear the credit risk associated with any notes it purchases from its political subdivisions or other governmental entities.

Intellectual property comprises some of the most valuable assets a business may hold – its brands, patents, know-how, and other intangible rights that make the business unique.  The intellectual property assets (IP) throughout the energy sector—upstream, midstream, downstream and service providers along the way—will be affected as more energy companies seek bankruptcy relief in the wake of both the oil price war and the Covid-19 pandemic. Even companies not considering bankruptcy for themselves are likely to be affected when their IP licensors or licensees file for bankruptcy.

There is no one-size-fits-all answer to IP or bankruptcy issues, much less when they collide in a licensor or licensee’s bankruptcy case. A creditor-licensor of intellectual property rights is in a vastly different position than a creditor-licensee who takes its rights from a newly bankrupt party. This article explains some of the rights and obligations of the non-debtor licensor and licensee of IP. It also provides a brief overview of how potential IP buyers can benefit from Section 363 of the Bankruptcy Code, which allows them to acquire a bankrupt entity’s IP assets free and clear of that entity’s liabilities.

1. Rights and restrictions by a licensor against the debtor-licensee.

When an IP licensee files bankruptcy (i.e., becomes the “debtor” in a bankruptcy case), the non-debtor licensor may be placed in a precarious position.  Debtors are debtors because they cannot (or will not) pay their debts. If the debtor-licensee was already behind on license payments, and then files bankruptcy, the non-debtor licensor’s first instinct may be to terminate the license. Once the bankruptcy is filed, however, the licensor cannot unilaterally terminate the license without bankruptcy court approval.  The filing of a bankruptcy petition triggers an “automatic stay,” which prevents creditors from taking any actions against the debtor and its estate due to pre-bankruptcy debts. Violations of the automatic stay can carry hefty fines or worse; therefore, it is imperative to tread carefully and seek advice of counsel before taking any actions against a bankrupt debtor. Moreover, many courts have found that the “automatic termination” clauses that trigger upon a filing of bankruptcy are unenforceable. Thus, before terminating the license, the non-debtor licensor must obtain permission to do so from the bankruptcy court.

A bankruptcy filing gives the debtor-licensee great latitude in how to treat what is termed an “executory” IP license. The classification of a license as “executory” is an important distinction because a debtor-licensee may elect to reject (terminate), assume (keep the license as-is), or assign (effectively, sell or otherwise transfer)[1] an executory license. See 11 U.S.C. §365. While the bankruptcy statute does not define the term, a contract is generally considered “executory” if each party has ongoing obligations to perform in some way, and courts have been overly accommodating in finding contracts to be executory. For example, some courts have determined that a licensor’s continued obligation not to sue its licensee for infringement caused the license to be executory. Obligations as simple as a licensee’s requirement to maintain confidentiality, appropriately mark a patented product, or provide accounting of sales have been found to satisfy the “continued obligation” requirement.

A licensee’s ability to assume or assign a license may raise great alarm to a licensor concerned that its rights could fall into the hands of an ineffective licensee or a competitor.  Luckily, the power to assign or assume a license is not absolute. Section 365(c)(1) of the Bankruptcy Code prevents a debtor-licensee from assigning or assuming an executory contract when (a) the licensor does not consent to the assumption/assignment and (b) applicable law otherwise excuses the licensor from accepting performance or rendering performance to another party. While an anti-assignment clause in the license will be disregarded for these purposes, a clause that specifically allows assignment under certain circumstances may be used to provide the requisite consent. A non-debtor licensor should insert itself into negotiations about a possible sale and assignment of a license to ensure that its rights are protected, and it should be prepared to file an objection to the assignment with the bankruptcy court when necessary to protect and preserve its rights.

Depending on the circumstances, a licensor may urge the bankruptcy court to treat license payments that accrue while a bankruptcy case is pending as an administrative claim. If accepted, the claim would be entitled to priority over some other claims against the estate and paid during the course of bankruptcy. If unsuccessful, however, this action may be detrimental to the licensor’s rights.

2. Rights and restrictions of the licensee against a debtor-licensor.

When a licensor files bankruptcy, a licensee will logically fear that it will lose the rights to continue using a critical piece of technology. After all, the same statutes that allow a bankrupt licensee to reject, assign, or assume an executory contract also apply to the licensor. Importantly, Section 365(n) of the Bankruptcy Code protects a licensee’s ability to continue business as usual in some regards. Notably, even if a bankrupt licensor rejects an IP license, the licensee can elect to either (1) accept the termination and assert a breach of contract claim or (2) continue to act on the license as it existed on the day the bankruptcy petition was filed. In effect, as long as the licensee continues to uphold its end of the license (e.g., pay royalties, appropriately mark and account for product sold, etc.), the licensee will be entitled to continue using the technology or other licensed IP as it existed when the bankruptcy petition was filed. One important caveat is that the licensee’s rights will often not extend to any improvement to the technology made after the petition is filed. Moreover, the licensee is on its own if an infringement claim is made against it. A licensor who has rejected a license will not be required to perform any obligations under the license, such as defending its licensee from infringement claims, other than to refrain from suing the licensee for infringement.

It is important to note that the particular provisions of Section 365(n) only apply to copyright, patent and trade secret/know-how licenses; they do not apply to trademark licenses.  For information on a recent Supreme Court ruling concerning trademarks and bankruptcy, see our article at https://www.louisianalawblog.com/business-and-corporate/recent-united-states-supreme-court-decision-tackles-question-of-what-happens-when-bankruptcy-meets-intellectual-property/.

3. Issues and benefits of acquisitions through bankruptcy – the 363 sale.

Sales of a bankrupt company’s assets through Section 363 of the Bankruptcy Code offer a great opportunity for a solvent company to expand its patent portfolio, acquire desirable IP licenses, and otherwise expand its IP.  Bankruptcy sales are a specialized form of asset acquisition; a potential buyer should engage experienced counsel to guide it through the process and avoid potential landmines.  One particularly attractive aspect of “363 Sales,” as they are often called, is that purchasers of estate assets can usually obtain those assets free and clear of any liens and encumbrances.[2]  The buyer can often take the assets free of any unknown liabilities, such as infringement claims that pre-date the sale.

As with any asset purchase, due diligence will need to be performed on the assets (IP) to be acquired. Unlike typical deals, however, sales through the bankruptcy are often subject to a relatively short timeline. Due diligence of the bankrupt assets is typically compressed and may have to be performed without substantial assistance from the bankrupt seller, who often lacks the necessary funds or infrastructure to assist. Diligence is particularly important because the seller may cease to exist as a going concern soon after the sale closes.  Post-closing indemnities are rare, and trying to enforce one may be practically impossible.  This risk is typically factored into the purchase price for the assets.

Moreover, portfolios are often acquired in less than pristine shape. It costs money to maintain IP rights: both U.S. and foreign patent and trademark registrations require the payment of maintenance fees to remain in force, and many foreign countries require these payments annually. The failure to pay these fees at any time may result in the abandonment of the rights. As such, the potential purchaser needs to ascertain the status of all significant intellectual property rights and develop a plan during the due diligence to take over and cure[3] any issues or defects that may exist. Likewise, to the extent that pending applications are acquired, the purchaser needs to be ready to take over these applications in whatever state they exist and take immediate action to perfect these rights. Kean Miller maintains relationships with foreign IP attorneys who are ready to assist our clients in the protection of their rights across the globe.

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[1] Perhaps the biggest concern is that a debtor-licensee may assign its license to a competitor of the licensor.

[2] Chapter 11 Bankruptcy permits licensees of the estate’s IP to petition the Court to protect their interest by insuring that the licensees be permitted to continue using the technology.

[3] Some jurisdictions allow for the revival of IP rights upon the payment of the owed annuity and a surcharge, while others require the owner to file a petition explaining why the payment was missed. Depending on the circumstances, forfeited rights may not be able to be revived.

Last week, President Trump unveiled his Guidelines for Opening Up America Again.  The Guidelines present a three-phase, criteria-based, framework to allow individuals and employers to return to normal activities.  The return-to-work envisioned by the White House calls for the easing of current restrictions, not the wholesale abandonment of those restrictions.  The guidelines are not statutes nor regulations, but are guidelines.  Ultimately, state and local governments may establish specific requirements for meeting the White House’s guidelines, and those requirements will likely vary.  For example, in advance of Texas’ move to re-open, Harris County, Texas Judge Lina Hidalgo issued an order mandating that everyone in Harris County over the age of 10 wear a face covering when outside their home.  Judge Hidalgo’s order is effective April 27, 2020 through May 26, 2020.  Although many state and local governments have not issued specific return-to-work requirements, there is much to be gleaned from the White House’s guidelines.

At each of the White House’s phases, there are certain expectations for both individuals and employers.  Although employers do not yet know what the specific return rules may be in their state, parish, county, or municipality, employers should begin to consider what they will need to do to meet the White House guidelines and any forthcoming state or local rules.  During all phases, the White House encouraged employers to develop and implement appropriate policies for social distancing and protective equipment, temperature checks, sanitation, use and disinfection of common and high-traffic areas, and policies related to travel (including adhering to CDC guidelines regarding isolation following travel).

Recognizing vulnerable workers, in phases 1 and 2, employers are encouraged to strongly consider “special accommodations” for personnel who are members of a vulnerable population.  Consistent with this guideline, vulnerable individuals are likewise encouraged to continue to shelter in place.

In phases 1 and 2, employers are encouraged to continue to allow teleworking.  For those who return to work, social distancing (strict social distancing in phase 1 and moderate social distancing in phase 2 ) will be the new normal (both at work and in public settings), and physical touching (e.g., handshaking) is a thing of the past.  Everyone (both in the workplace and in public) should be given a 6-foot personal area.  To assist with social distancing, the White House guidelines call for the closing of common areas in employment settings (during Phases 1 and 2), and employees should not use other employees’ telephones, desks, spaces, tools, or equipment.  The idea is to decrease the opportunities for contact and cross-contamination.  This includes areas of potential cross-contamination such as printers, copy machines, and even the ubiquitous (but high touch) coffee machine, and employers should consider how to minimize those contact points.

To minimize waits for elevators and to avoid rushes of employees at one time, flexible and staggered work schedules should be considered.  To the extent necessary, workspaces may need to be modified to increase distances between employees and possibly add physical barriers between employees (e.g., “sneeze guards”).  For some employers, it may make sense to also establish flow patterns and make certain hallways and stairwells one-way, to keep employees from running into one another.  Employees may still need to interact with one another, so remote and virtual interactions should be the rule – even within the same workplace.  Employers will also need to serve as gatekeepers for their visitors, and visitors to the workplace should be kept to an absolute minimum.

Once employees return to work, employers will need to pay special attention to cleaning practices and ensuring a safe work space in compliance with CDC, OSHA, state, and local guidelines.  Employers should be prepared to continue to educate employees on proper hygiene, including hand washing, no touching of the face, and covering one’s mouth and nose when coughing or sneezing.  Employers will need to make sure to have sufficient hand washing stations and supplies, paper towels, hand sanitizer, disinfectant wipes, and tissues.  Depending on the employment setting, employers may have to provide PPE or may be ordered to provide cloth face masks.  To maintain a healthy work environment, employers should be prepared for routine professional cleanings and disinfecting, consistent with CDC guidelines, as well as regular and recurring cleaning of high touch areas throughout the day of things such as doorknobs and handles, elevator buttons, and drawer pulls.  Employers may also want to consider removing supplies and common-use items from printer and copy areas.

The guidelines also call for employers to monitor their workforces for symptoms of COVID-19 and not to allow anyone who is symptomatic to physically return to work until cleared for return.  Importantly, the guidelines also call for employers to develop and implement policies and procedures for workforce contact tracing following an employee’s positive COVID-19 test.  Limiting employee interactions should greatly simplify contact tracing.

The first 2 phases of the White House guidelines address the path back to “normal.”  Phase 3 is a return to some semblance of normalcy, or at least a new normal.  A return to normal as we knew it may not occur until a vaccine or some other mitigating anti-viral medicine is found.

The coronavirus continues to adversely impact so many, and the court systems across the country are adapting in kind.  On April 2, 2020, Louisiana’s Governor in Proclamation JBE 2020-41 suspended all legal deadlines at least until April 30, 2020.  Further, the Louisiana Supreme Court has issued orders over the last few weeks to help the court system navigate through these challenging times of our increasingly disrupted world.  Below is a digest of the most up-to-date information regarding courts in Louisiana as of the time of this posting.

On April 22, 2020, the Supreme Court amended its April 6, 2020 order as it pertains to jury trials and remote proceedings.

As of April 6 2020, the Louisiana Supreme Court repealed all of its former orders and replaced it to continue all civil bench trials, hearings, and court appearances scheduled to commence in any Louisiana state court before May 1, 2020, to be reset by local order for a later date no earlier than May 4, 2020. All jury trial, civil or criminal, were continued until June 30, 2020 pursuant to the Louisiana Supreme Court’s April 22, 2020 order.

Until at least May 4, 2020, courts may only conduct in-person proceedings 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 1, 2020 shall be considered timely if filed no later than May 4, 2020.
  2. First Circuit Court of Appeal: The court is closed until April 30, 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 1, 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, 1, 2020.  All filings due during the period of March 12, 2020 through May 1, 2020 or which become due during this period shall be deemed timely if filed on or before May 1, 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 re-set for May 18, 2020.
  4. Third Circuit Court of Appeal: The courthouse shall maintain restricted access until April 30, 2020 and will reopen on May 1, 2020 unless extended by further order.  All deadlines are extended until April 30, 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. For purposes of computing the timeliness of filings, this period of suspension shall be considered a legal holiday; and therefore, pleadings otherwise due in this Court during this legal holiday shall be deemed timely if filed on or before Friday, May 1, 2020.
  5. Fourth Circuit Court of Appeal: 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 1, 2020. For purposes of computing the timeliness of filings, this period of suspension shall be considered a legal holiday; and therefore, pleadings otherwise due in this court during this legal holiday shall be deemed timely if filed on or before May 4, 2020. Appellee briefs otherwise due between March 12, 2020 and May 1, 2020 shall be considered timely if filed on or before May 26, 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 bench and jury trials, hearings, proceedings and conferences scheduled before or on May 1, 2020 are continued to a date to be reset by each presiding judge. 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 May 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 May 1, 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 April 30, 2020 are hereby postponed, to be reset by, and at the discretion of, the presiding judge. Prescriptive, peremptive and statute of limitation deadlines are hereby suspended until April 30, 2020. No in-person filings will be accepted through April 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: 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 7, 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 4, 2020.  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 after April 30, 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 until 8:00 AM on Friday, May 1, 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 through April 30, 2020, 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: In all 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. All civil jury trials scheduled to commence during the month of May are continued and shall be reset by order of the judge in each division in which such civil jury trials are scheduled. In Lafayette Parish, the public is instructed to call the Clerk’s Office between the hours of 10:00 AM to 2:00 PM Monday thru Friday. And in Acadia Parish, the public is instructed to call the Clerk’s Office between the hours of 8:30 AM to 4:00 PM Monday thru Friday for emergencies or questions until further notice. 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. Through May 1, 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: All civil hearings and court appearances set for any date between March 23, 2020 and May 4, 2020, are hereby continued to a date to be reset by the appropriate judge, except for the following: (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 1, 2020, the Clerk’s Office has reduced hours from 8:30 AM to 12:30 PM Monday thru Friday. All business with the Clerk’s Office at this time should be only that which is deemed an emergency or critical in nature. Customers are encouraged to use e-recording, e-filing, fax filing, US mail, Fed-Ex, or UPS when available for matters that are urgent, as Document Exchange will no longer be staffed at the door. 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.

On April 20, 2020, the Louisiana Department of Health (“LDH”) Office of Public Health issued Healthcare Facility Notice/Order Notice #2020-COVID 19-ALL-10 (“Notice-10”) which supersedes prior notices and lifts some of the restrictions on medical, surgical and dental procedures as well as other healthcare services beginning on April 27, 2020.  All licensed healthcare facilities and professionals in Louisiana must adhere to Notice-10.  The three areas covered by Notice-10 include: (1) medical and surgical procedures; (2) dental visits and procedures; and (3) healthcare services other than procedures.

Medical and Surgical Procedures

All medical or surgical procedures in which a delay will not adversely affect the particular patient or the underlying disease process should continue to be postponed.  Medical and surgical procedures may only be performed if the following conditions are met:

1. to treat an “emergency medical condition” which is defined as a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in:

(a) Placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy;

(b) serious impairment to bodily functions; or

(c) Serious dysfunction of bodily organs.

2. to avoid further harms from underlying condition or disease.

3. to treat time-sensitive medical conditions, but only if each of the following conditions/requirements are met:

(a) Each patient undergoing such a medical or surgical procedure shall undergo an appropriate pre-operative clinical evaluation to minimize the risk that the patient has COVID-19 including COVID-19 testing, if available;

(b) Each patient must comply with strict social distancing measures from the time of the pre-operative clinical evaluation through the day of the surgery;

(c) The facility and healthcare provider shall have an adequate and appropriate supply of personal protective equipment (“PPE”) to treat patients, including COVID positive patients with at least a 5-day supply on hand at the facility. The facility cannot be dependent on the state or other governmental body to meet the 5-day requirement;

(d) There is an adequate supply chain to the facility/healthcare provider for medical equipment, supplies, and medications;

(e) The facility/healthcare provider has adequate medical staff, including surgical, surgical support, recovery, and nursing staff, to meet the needs of all patients;

(f) The facility/healthcare provider shall conduct constant monitoring of hospital, regional, and state resources, as well as ESF-8 reports, indicating coronavirus burden of disease and impact.

Dental Visits and Procedures

Any dental visit, procedure, and surgery (“dental procedure”) in which a delay will not adversely affect the particular patient or the underlying disease process should continue to be postponed.  Dental procedures can only be performed under the following conditions:

1. to treat an “emergency medical condition” which is defined as a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in:

(a) Placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy;

(b) Serious impairment to bodily functions; or

(c) Serious dysfunction of bodily organs.

2. to avoid further harms from underlying condition or disease.

3. to treat Time-Sensitive Dental Conditions if ADA algorithms 2 and 3 and CDC Guidelines are followed for screening patients and for treating patients.

Healthcare Services, Other than Medical, Surgical or Dental Procedures

For healthcare services (other than a medical or surgical procedure or a dental procedure), all providers are directed by LDH to offer telehealth rather than an in-person visit when medically appropriate and when the same standard of care can be met. In-person healthcare services should be postponed when patient outcomes would not be compromised. LDH recognizes that there may be some legitimate and valid barriers preventing some services from shifting to telehealth.  Providers are to use their best medical judgment within the scope of their license to make the determination of whether to use telehealth on a case-by-case basis.  Providers must consider the entire clinical picture when determining if a service can be safely postponed, including the consequences to both the patient and to the healthcare system.  All providers are encouraged to follow LDH and CDC recommendations to reduce COVID-19 exposure should an in-person visit be deemed necessary.

Follow-Up Post Procedure or Visit

Within 10-14 days after a procedure or in-person visit, the provider must make contact with the patient to determine whether the patient has signs/symptoms of COVID-19 or has tested positive for COVID-19 since the procedure.  The contact with the patient must be documented in the medical record.  If the patient has signs/symptoms of COVID-19, recommendations must be made by the provider including appropriate testing. The healthcare provider must also immediately notify the Office of Public Health if any such patient has tested positive for COVID-19.

Discontinuance of Procedures and Compliance

The State Health Officer has the authority to order the immediate discontinuance of medical, surgical and dental procedures to treat time-sensitive medical conditions.  In making this determination, the State Health Officer will consider statewide or region-wide:  ventilator capacity; ICU bed availability; med surg bed availability; the number of new admit COVID-19 cases; and any other criteria deemed appropriate.

Each facility and healthcare provider that performs a medical, surgical or procedure or other healthcare service should comply with the Centers for Medicare and Medicaid Services (“CMS”) April 19, 2020 Recommendations for Re-opening Facilities to Provide Nonemergent Non-COVID-19 Healthcare: Phase I and any subsequent recommendations or guidance issued by CMS.

Any provider acting in good faith shall not be found to be in violation of the directives set forth in Notice-10.

On April 16, 2020, the Offshore Marine Service Association (OMSA) issued a memorandum providing guidance for the protection of maritime personnel on vessels during the COVID-19 pandemic. The memorandum aims to support the uninterrupted flow of the nation’s marine transportation system while maintaining the safety of maritime personnel. The guidelines contained and referenced in the memorandum follow the recommended standards and practices from national and international bodies such as the U.S. Coast Guard (U.S.C.G.), Center for Disease Control and Prevention (CDC), World Health Organization (WHO), and International Maritime Organization (IMO).

As OMSA indicated in a previous memorandum providing guidance to the transport of potentially infected personnel, the spread of COVID-19 can result in placing the vessel and/or crew under quarantine for a period of no less than 14 days. To mitigate the spread of the disease and ensure the safety of the individuals aboard, the vessel operator and crew must risk assess the situation, develop plans, and set up isolation areas. These procedures should include:

  • Properly equipping the vessel with necessary protective gear (e.g., PPE) or having such supplies readily available at shoreside facilities.
  • Establishing and communicating isolation protocols to ensure that all individuals are aware of safety measures, including any restrictions and isolation areas.
  • Periodic monitoring and screening individuals to identify any suspicions of COVID-19 aboard while ensuring the confidentiality of the information (e.g., medical records). If possible, use devices to detect temperature changes and fever. Alternatively, watch for commonly known symptoms of fever and follow the guidance on fever detection from the CDC.
  • Designating an isolation area stocked with necessary supplies. Preferably, this area should have its own ventilation system with negative air pressure to prevent airborne contamination. Alternatively, ventilation crossovers should be minimized.
  • Assign a Designated Observer to assist the isolated individual while limiting the contact with the remaining crew.
  • Establishing and implementing stringent cleaning and disinfecting procedures, particularly for the isolation areas as well as the routes leading to the isolation areas. When items must be cleaned and sanitized in the vessel’s laundry facility, avoid cross contamination, and wash and dry those items at the highest permissible temperature. Disposable PPE and cleaning materials should be discarded into designated garbage bags and not into bins or bags located in common spaces.

Once a symptomatic individual is identified, Vessel operators should also develop plans and procedures for the arrival at the port. These procedures should consist of:

  • Proper notification to the U.S.C.G and any other governmental body as directed by the U.S.C.G. If the vessel is arriving in the U.S. from a foreign port, notify the CDC directly.
  • Follow any and all outlined vessel’s Safety Management System and Job Safety Analysis, particularly the isolation procedures.
  • Use proper safety equipment (e.g., PPE). All individuals involved should properly utilize and dispose PPE. Clean and disinfect any areas and surfaces that were in contact with the potentially infected individual.

The implementation of protocols and the communication among stakeholders are essential to ensure the safety of the crew while maintaining the viability of the endeavor. During this pandemic, communication concerning the responsibility and liability during transport, financial responsibility of the vessel during a potential downtime and/or quarantine, and the financial responsibility surrounding any disinfecting activities, including the stocking of protective gear, should be taken into consideration

If you have questions, please contact Chuck Talley at 504-585-3046.

For more information:  https://cdn.ymaws.com/offshoremarine.org/resource/resmgr/omsa_guidelines_for_the_prev.pdf (full memorandum from OMSA attaching practical checklist sheets [pages 8-17])