West Virginia Health Care Law

The past few weeks have been a busy time for those interested in the legal side of the federal government's response to the novel coronavirus (COVID-19).  It has been just as busy at the state level, with press conferences, Executive Orders and other recommended procedures and guidelines issued to address the pandemic in West Virginia.  Here are just a few of the recent highlights related specifically to the health care industry.

Additional COVID-19 Relief for Hospitals

On April 24, President Donald Trump signed into law the Paycheck Protection Program and Health Care Enhancement Act, which includes a $484 billion aid package that reinjects funding for the small-business loan program that depleted its previously-approved resources after only two weeks.  This new relief also seeks to boost aid targeted to hospitals and expand testing for COVID-19.

More specifically, the aid package includes more than $320 billion for the Paycheck Protection Program for small businesses, $60 billion for the small-business disaster fund, $75 billion earmarked for hospitals, and $25 billion for the development and implementation of a national plan to helps states with COVID-19 testing protocols.

The $75 billion allocated to hospitals will be disbursed through the U.S. Department of Health and Human Services (HHS).  This funding is to be used for the reimbursement of providers for the costs associated with treating COVID-19 patients, including funding to provide diagnosis, testing and follow-up care of infected patients.  Meanwhile, the $25 billion authorized for the expansion of COVID-19 testing will be broken down into smaller groups that include, among others, states, localities, tribes, the Centers for Disease Control and Prevention (CDC), and the National Institutes of Health (NIH).  This funding is meant to finance not only the testing for COVID-19 in patients but also testing for possible immunity.

Resumption of Elective Medical Procedures

On April 20, West Virginia Governor Jim Justice issued Executive Order 28-20, which opens the door for hospitals across the state to begin performing elective procedures as early as April 28, 2020.  The Executive Order amends one of the Governor’s previous orders (Executive Order 16-20) that declared all elective medical procedures to be prohibited, but provided that patients would still have access to urgent, medically-necessary procedures (e.g., those necessary to preserve the patient’s life or long-term health), and that the prohibition would apply equally to all types of elective medical procedures performed in hospitals, offices and clinics throughout the state. 

Still, with census numbers declining across the state’s major hospital systems and small rural hospitals alike, hospital leaders petitioned the Governor to allow them to resume performing elective procedures.  These hospitals reasoned that the financial burdens of the COVID-19 business prohibitions had taken a heavy toll and that the hospitals could minimize risks to patients and health care workers while resuming elective procedures.

Executive Order 28-20 sets up the procedure through which hospitals or ambulatory surgical centers may petition the West Virginia Office of Health Facilities Licensure and Certification (OHFLAC) for permission to resume activities.  Applicants are required to certify that they can satisfy the criteria set forth in the Executive Order.  OHFLAC will review the applications to determine the satisfaction of the criteria and then notify the applicant of its determination.  Once a facility has received approval from OHFLAC, it may resume more urgent elective procedures.

Request for Immunity for Health Care Providers Responding to COVID-19

No one can question the bravery of health care providers across America and West Virginia who have stepped forward and answered the call to action in treating those exposed to and suffering from COVID-19.  While this bravery is being celebrated on a daily basis in larger metropolitan areas, like New York City, medical providers, nurses and other health care workers throughout West Virginia have continued to come to work and meet the needs of COVID-19 patients, despite the risks to themselves and their families.  In the face of these risks, health care providers hope to reduce other risks – those legal risks associated with liability for medical decisions made in the face of this pandemic.

On April 13, the West Virginia Health Care Association, the West Virginia Hospital Association, and the West Virginia State Medical Association joined in asking Governor Justice for an Executive Order, similar to those issued in other states, “affording healthcare providers and healthcare facilities, as defined in West Virginia Code Section 55-7B-2(f) and (g), protection against liability for good faith actions taken in the course of their significant efforts to assist in the State’s response to the current public health crisis and State of Emergency.”

In anticipation that such an Executive Order will be forthcoming, many health care providers may wonder what it will mean for them.  Likely, it will mean that providers will be granted civil immunity from future claims of ordinary medical negligence relating to the provider’s treatment of patients seeking care for COVID-19.  While the federal CARES Act provided immunity to volunteer health care workers who came out of a period of retirement or inactivity to provide health care services in response to the COVID-19 outbreak, there was no such provision for active health care employees who are performing essentially the same tasks as the volunteers.  In response to this obvious gap in protection for health care providers, the American Medical Association issued an open letter to the National Governors Association imploring states to enact legislation allowing health care providers to address the needs of the public without the threat of litigation resulting from good faith decisions and judgments made in the face of this pandemic.  While West Virginia’s medical providers certainly would benefit from such legislative action, an Executive Order from Governor Justice is the next best option – unless the Legislature decides to take up the issue in its Special Session anticipated for later this year.

Need Assistance?  Bowles Rice is Here to Help.

COVID-19 has resulted in an unprecedented time of stress and confusion, and it is perfectly natural to feel overwhelmed.  When trying to navigate all these complicated issues, it can be a relief to know that Bowles Rice LLP is there to provide expert legal advice.  Bowles Rice has assembled a COVID-19 Response Team that can answer all your questions and help your organization devise strategies in response to the seemingly ever-changing landscape caused by this pandemic.  In addition, Bowles Rice has assembled a team that is ready to assist businesses with applying for Small Business Administration loans and other COVID-19 financial assistance programs.