Virginia LawyerVOL. 69/NO. 5 • February 2021 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar
The Health Law Issue The COVID-19 Pandemic and the Law Attorney General Mark R. Herring and the Pandemic Legal Team
Virginia Lawyer The Official Publication of the Virginia State Bar February 2021 Volume 69/Number 5
Features Noteworthy HEALTH LAW VSB NEWS 37 Stephanie Grana Elected VSB 13 The Year of Health Law Adaptation President-elect by Allyson K. Tysinger 37 New Virginia Lawyers Sworn in Virtually 14 COVID-19 Liability in Long-Term Care: A Tidal Wave or a Trickle of Litigation in Virginia? 37 Be Prepared: National Healthcare by Beth A. Norton Decisions Day 38 Prince William County Bar 18 Expansion of Telemedicine during COVID-19 Association Honors Local and the Issue of Non-Compete Agreements Attorneys by Dean E. Lhospital 39 In Memoriam 40 Augustus Benton Chafin 22 The New Virginia DOLI COVID-19 Emergency Workplace Standards: An Administrative Nightmare for Healthcare Providers 40 Florence W. Madden by William P. “Scott” Daisley and Elizabeth Dahl Coleman 41 Joan Marie O’Donnell 41 Mark B. Sandground Sr. 26 Pre-Disposition Mitigation of Traffic Cases: A Simple Proposal to Improve Access to Justice, Public Health, 42 Bar Council Elections and Court Operation during COVID and Beyond by Shawn Mihill Departments 6 Forum 28 The COVID-19 Pandemic: The Legal Issues, the Public Impact, and Our Progress 36 Wellness by Mark R. Herring, Attorney General of Virginia 57 Professional Notices 60 Cartoon GENERAL INTEREST 60 Advertiser’s Index 61 Classified Ads 30 Goodbye VPNs – Hello Zero Trust Network Access by Sharon D. Nelson and John W. Simek Columns 8 President’s Message 32 Opinion: Virginia’s Cash Bail System: Denying Due Process to the Poor 10 Executive Director’s Message by Clarence M. Dunnaville Jr. 12 Bar Counsel’s Message 43 Access to Legal Services VIRGINIA LAWYER REGISTER 44 Letter from the Access to Justice Commission 50 Disciplinary Summaries 46 Law Libraries 51 Disciplinary Proceedings 47 Technology and the Future Practice 52 Notices to Lawyers: A Roundup of News and Proposed Rule Amendments of Law from vsb.org 48 Risk Management 53 CLE Opportunities 62 The Last Word
Cover: Attorney General of Virginia Mark R. Herring and members of his pandemic team: First row: Attorney General of Virginia Mark R. Herring; Second row (L to R): Deputy Attorney General Keonna C. Austin; Chief Deputy Attorney General Erin B. Ashwell; Third row (L to R): Heather Hays Lockerman; Justin I. Bell; Carol L. Lewis; Fourth row (L to R): Grant E. Kronenberg; Robin V. Kurz; Fifth row (L to R): Solicitor General Toby J. Heytens; Allyson K. Tysinger, Health Law Section Chair. Photo by Deirdre Norman at the Attorney General’s office in the historic Barbara Johns Building. 3 Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2020–21 OFFICERS 15th Circuit Brian L. Buniva, President Allen F. Bareford, Fredericksburg Jay B. Myerson, President-elect Marni E. Byrum, Immediate Past President 16th Circuit www.vsb.org Karen A. Gould, Executive Director and R. Lee Livingston, Charlottesville Chief Operating Officer Palma E. Pustilnik, Charlottesville Editor: EXECUTIVE COMMITTEE 17th Circuit Deirdre Norman Brian L. Buniva, President Adam D. Elfenbein, Arlington ([email protected]) Jay B. Myerson, President-elect Jennifer S. Golden, Arlington Marni E. Byrum, Immediate Past President Gregory T. Hunter, Arlington Creative Director: Eugene M. Elliott, Roanoke Joshua D. Katcher, Arlington Caryn B. Persinger Stephanie E. Grana, Richmond William H. Miller, Arlington ([email protected]) Chidi I. James, Fairfax 18th Circuit Eva N. Juncker, Falls Church Barbara S. Anderson, Alexandria Assistant Editor: William M. Moffet, Abingdon Stacey R. Harris, Alexandria Kaylin Bowen Eric M. Page, Richmond John K. Zwerling, Alexandria ([email protected]) CONFERENCE CHAIRS AND PRESIDENT 19th Circuit Conference of Local and Specialty Bar Advertising: Susan M. Butler, Fairfax Associations – Susan N. G. Rager, Coles Point Brian C. Drummond, Fairfax Deirdre Norman Diversity – Sheila M. Costin, Alexandria ([email protected]) David J. 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It is intended for use by 3rd Circuit 20th Circuit Meredith B. Travers, Portsmouth R. Penn Bain, Leesburg attorneys licensed to practice law in Virginia. Because of Susan F. Pierce, Warrenton the rapidly changing nature of the law, information 4th Circuit 21st Circuit contained in this publication may become outdated. As Ann B. Brogan, Norfolk Gary A. Bryant, Norfolk G. Andy Hall, Martinsville a result, an attorney using this material must always Neil S. Lowenstein, Norfolk research original sources of authority and update 22nd Circuit 5th Circuit Eric H. Ferguson, Rocky Mount information to ensure accuracy when dealing with Thomas G. Shaia, Suffolk a specific client’s legal matters. In no event will the 23rd Circuit 6th Circuit Eugene M. Elliott Jr., Roanoke authors, the reviewers, or the publisher be liable for J. Daniel Vinson, Emporia K. Brett Marston, Roanoke any direct, indirect, or consequential damages resulting 7th Circuit 24th Circuit from the use of this material. The views expressed herein Benjamin M. Mason, Newport News Eugene N. Butler, Lynchburg are not necessarily those of the Virginia State Bar. The 8th Circuit 25th Circuit inclusion of an advertisement herein does not include Marqueta N. Tyson, Hampton William T. Wilson, Covington an endorsement by the Virginia State Bar of the goods 9th Circuit or services of the advertiser, unless explicitly stated 26th Circuit Susan B. Tarley, Williamsburg Nancy M. Reed, Luray otherwise. Periodical postage paid at Richmond, 10th Circuit Virginia, and other offices. 27th Circuit E. M. Wright Jr., Buckingham R. Cord Hall, Christiansburg 11th Circuit 28th Circuit Shaun R. Huband, Petersburg William M. Moffet, Abingdon POSTMASTER: 12th Circuit Send address changes to 29th Circuit P. George Eliades II, Chester D. Greg Baker, Clintwood VIRGINIA LAWYER MEMBERSHIP DEPARTMENT 13th Circuit 30th Circuit Dabney J. Carr IV, Richmond Greg D. Edwards, Jonesville 1111 E MAIN ST STE 700 Leah A. 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Letter to the Editor I read with interest your December issue on the importance of local bar associations. As many Virginia Lawyer readers Letters may already know, my mother, Rosalie Small, passed away in September 2020. For 15 years, starting in the late 1970s, Rosie Send your letter to the editor to: was Executive Director of the Fairfax Bar Association, helping to make that organization into one of the most important small bars [email protected] or in the country. Virginia State Bar She wasn’t an attorney, and, thus, wasn’t a member of the VSB. Still, I believe that Virginia Lawyer Magazine many VSB members owe so much to people like Rosie, who are the unsung workers 1111 E Main St., Suite 700 for many bars across the Commonwealth. Richmond, VA 23219-0026
J. Max Weintraub Letters published in Virginia Lawyer Senior Litigation Counsel may be edited for length and clarity United States Department of Justice and are subject to guidelines avail- able at www.vsb.org/site/publica- In Response to “Help Bring Justice for All to Rural Virginia” tions/valawyer/. Regarding your article in the Virginia The difference is that many of those Lawyer entitled “Help Bring Justice For 148 lawyers are retired or not actively All To Rural Virginia”. As you men- practicing, or are prosecutors or their tioned in the article, there is a dearth of assistants, personal injury firms, or may lawyers in rural areas. That is especially have a residence address in the coun- true in the Northern Neck and Middle ty but do not practice in the area. By Peninsula counties where I practice. It example, John Rellick is the managing seems that fewer lawyers want to prac- attorney for the legal aid office (Legal tice in rural areas now. And consequent- Aid Works) in Tappahannock (Essex ly, there are fewer lawyers willing to take County), but he lives in King William, on pro bono matters. so he may have been counted twice as a Your article listed the number of law- practicing attorney. yers by County. However, the numbers Legal Aid Works in Tappahannock listed for the counties where I practice serves the counties of Essex, King appear to be greater than the actual William, King and Queen, Richmond, number of practicing lawyers in those Lancaster, Northumberland, counties. Those counties, with the Westmoreland and has its headquarters number of actual, practicing lawyers in Fredericksburg. A survey in Essex (and the number in the article in paren- County a few years ago pointed out theses) are: that 70% of its residents received some Caroline - 8 (18) form of public benefits, such as food Essex - 6 (13) stamps, rent assistance, income assis- King and Queen - 1 (2) tance (welfare), Social Security, etc. King William - 5 (10) Except for farming, timber, and Lancaster - 17 (43) housing construction, there is very little Middlesex - 8 (18) industry in the area and most jobs are Northumberland - 6 (21) low wage, entry-level, or service jobs. Richmond - 4 (4) Accordingly, there is a greater need for Westmoreland - 6 (19) legal representation among the low-in- The total number of actively practic- come population, but, unfortunately, ing lawyers is about 61 covering nine fewer rural lawyers to accommodate that counties, whereas the total number of need. The possibility of getting lawyers lawyers by county is about 148. from metropolitan areas to assist with
Letter continued on page 11
6 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org
President’s Message by Brian L. Buniva Civility and Gratitude in This Great Profession
I WOULD LIKE TO BEGIN of the most frequently cited passages is my bond. this column by quoting from a on civility came from retired United • Avoid all bigotry, young George Washington’s early States Supreme Court Justice Anthony discrimination, or prejudice. writings, titled “Rules of Civility and M. Kennedy as he addressed the • Treat everyone as I want to Decent Behaviour in Company and American Bar Association’s annu- be treated – with respect and Conversation.” Washington scribed al meeting in 1997: “Civility is the courtesy. a total of 110 rules to be observed in mark of an accomplished and superb • Act as a mentor for less daily life, which ranged from matters professional, but it is even more than experienced lawyers and of personal hygiene and decorum to this. It is an end in itself. Civility has as a role model for future topics that we should revisit frequently deep roots in the idea of respect for the generations of lawyers. — especially in today’s turbulent times. individual.” • Contribute my skills, knowledge I consider the following some of his and influence in the service of most important admonitions: Who among us has not my community. • “Every action done in company • Encourage those I supervise ought to be with some sign used reproachful language to act with the same of respect to those that are against someone or treated professionalism to which I present.” a s pi re .” • “Use no reproachful language someone without the respect I am grateful for the many opportu- against anyone; neither curse nities I have had to observe first-hand nor revile.” they deserve? civility as practiced by giants of the bar • “Undertake not what you as my partners, mentors, co-counsel, cannot perform, but be careful We can only hope that those or opposing counsel. The late Gerald to keep your promise.” Baliles, Bill Broaddus, Irv Blank, the • “Labour to keep alive in your failings are few and far late Buddy Allen, the late Richmond breast that little celestial fire Circuit Court Judge Randall Johnson, called conscience.” between, and not repeated. Pat McSweeney, Frank Brown, and This nation’s public discourse Charlie Williams are just a few of the would be greatly elevated if only these Our Virginia Supreme Court truly great lawyers who have led the few basic, but important, rules of civil- has also opined on the expectation crusade for civility and professional- ity and decent behavior were observed that all lawyers behave with civility ism by example. I urge all to identify during our country’s recent national when it adopted the “Principles of a lawyer who has demonstrated true public and political debates. Professionalism” more than a decade professionalism and civility, watch But as simple as these common- ago. I commend the words regarding them closely, and learn. It will make sense statements are, I dare say they conduct toward all others embodied in you better people, and better lawyers. are not easy to observe in our daily the Court’s Principles: Finally, I would like to close this lives. Who among us has not used “In my conduct toward everyone column with thoughts of gratitude. reproachful language against someone with whom I deal I should: We’ve all had a tough past year or so or treated someone without the respect • Remember that I am part of a due to COVID-19, but, when things they deserve? We can only hope that self-governing profession, and seem bleak, I remember a New York those failings are few and far between, that my actions and demeanor Yankee baseball player of long ago and not repeated. reflect upon my profession. named Lou Gehrig. After 17 years As lawyers we are called upon to • Act at all times with in the major leagues, he was stricken bring civility into every phase of our professional integrity, so that private and professional lives. One others will know that my word President continued on page 54
8 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org @Vastatebar /virginiastatebar Virginia State Bar @virginiastatebar
Executive Director’s Message by Karen A. Gould You Do, In Fact, Still Get To Complain Even If You Don’t Vote
THE VIRGINIA STATE BAR tion: Donald Trump did receive two counts spiked on Mondays, the day rarely has a contested president-elect write-in votes in the VSB election, the reminders were sent. Because it election. In the last ten years, the VSB placing him a very distant third if he is against VSB policy to inundate our has had three contested elections: were an eligible Virginia lawyer. But lawyers with emails, it was deemed 2012, 2014, and 2020. In the 2012 back to our turnout: the biggest spike sufficient to send the reminders once a election Raymond B. Benzinger trailed in votes occurred, unsurprisingly, on week on a Monday. by a margin of less than two percent days when we emailed the ballots or To combat low voter response, we when he lost a VSB president-elect reminded you that you still needed to have received suggestions that the election to Kevin E. Martingayle of vote. president-elect election be moved to Virginia Beach. About 20 percent of Yet, there was no U.S. presiden- the spring to occur at the same time as Virginia’s 30,000 active lawyers cast tial election in 2014 to dampen voter the Council elections. VSB members ballots in that VSB election, the last response. The low turnout in the are more likely to know the Council such contest using only paper ballots. 2014 election prompted the Report candidates in their circuits and, there- In 2014, Raymond B. Benzinger of of the Study Group on VSB Online fore, Council elections would attract Arlington, Thomas A. Edmonds of Elections (May 2015) and the Final circuit members to vote for the pres- Richmond, and Michael W. Robinson Report and Recommendations from the ident-elect position because it would of Reston competed for the presiden- Special Committee on President-elect be on the same ballot as the circuit cy. The three-way election resulted Procedures (June 15, 2016). Substantive candidates. in 4,517 votes being cast from 31,180 changes were made in the election pro- The proposal set forth for your eligible voters (14.49%). Robinson won cess because of those reports, but the consideration below would change with 2,043 votes. low turnout remains. the timing of the president-elect This year, the VSB had a contest- The measures proposed by the election to coincide with the Council ed president-elect election between study group and adopted by the special elections. It also proposes that the Stephanie B. Grana of Richmond and committee had three guiding princi- election period be shortened to two David E. Neumeyer of Lynchburg. ples, which guide our elections today: weeks. Because elections were origi- Grana won the election with 2,986 • every member of the VSB who nally held through the mail, they were votes, compared to Neumeyer’s 2,436 desires to participate and vote held through a month. The advent of votes. A total of 5,4691 voters returned in an electronic election should electronic balloting means this extend- a ballot out of 32,174 eligible voters have a reasonable opportunity to ed period is no longer necessary. (17%). do so and receive a message that The Paragraph 42 rule change and The low voter turnouts in VSB their vote has been received and bylaw changes that would be neces- elections have not gone unnoticed. We counted; sitated by this proposal are simple, as would like higher lawyer interest, but • the VSB has a transparent and fair indicated in this redlined proposal also understand that you are busy and election process; and (additions are denoted by underlining; may believe that the president of the • the VSB affords each president- deletions by strikethroughs): Bar has no bearing on your careers. In elect candidate the opportunity my experience, that is untrue. When to communicate their goals and 4. Officers— any lawyer in the Commonwealth positions to Bar members. The officers of the Virginia State Bar contacts the current or even former One of the recommendations made shall be a President, a President-elect, president of the bar on an issue, it has in 2014 was that the VSB membership an Immediate Past President and a without fail generated response and should be sent periodic reminders Secretary-Treasurer. The President- action. about the election. The 2020 elec- elect shall be elected annually for Of course, our election was taking tion report confirms that the email place during another notable elec- reminders work because the vote Executive Director continued on page 54
10 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org Confidential help for substance abuse problems and mental health issues.
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Letter continued from page 6
pro bono work in rural areas appears to be remote, though for office visits, and has been for many months, although it it would be welcome. The answer seems to be more govern- still takes telephone calls. I continue to work with them as ment funding for more rural legal aid offices so they can hire much as possible, and also perform voluntary pro bono work more lawyers and more staff. for those clients unable to pay fees. The top three areas of The pandemic has also adversely affected the area by that work are the same as those listed in your article, to-wit: causing many restaurants and small businesses to close or divorce, landlord/tenant, wills and powers of attorney. reduce employment, thereby causing further hardship on the low-income population. Herbert L. Sebren Jr. The Legal Aid Works Office in Tappahannock is closed Tappahannock
www.vsb.org VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 11 Bar Counsel’s Message by Renu M. Brennan Turning the Fiduciary Relationship on its Head: Fiduciary Misconduct and Lawyer Discipline
WITHIN THE LAST TWO YEARS, held as a fiduciary for the benefit of an benefit of, and held the power of disciplinary tribunals have suspend- elderly ward. attorney for, this disabled client. The ed or revoked at least nine attorneys’ Fairfax attorney Clifford John trust made monthly payments into a licenses to practice law in the Com- Shoemaker5 held the power of attorney bank account, which Wilks managed. monwealth of Virginia for ethical mis- for an 86-year old woman suffering Throughout a six-month period, Wilks conduct committed while the lawyers from dementia. Shoemaker deposited made 17 transfers totaling nearly served in a fiduciary capacity. In some $142,506.82 in life insurance proceeds $11,000 from his client’s account to his cases, the lawyers exploited, instead for her benefit into his trust account personal account. Wilks periodically of protected, individuals the lawyers and then used $57,000 to pay his credit repaid some of the client’s money. agreed to protect. In all cases, the law- card bill. Shoemaker altered his bank Wilks was not honest with his law yers abused the trust and confidence statements to conceal his misappropri- partners when they confronted him reposed in them by the principals. The ation. After initially claiming he was about the transfers. It was not until the lawyers’ misconduct harmed not just not charging the client a fee, Shoe- partners pressed the issue that Wilks those they agreed to protect, but the maker billed his client $30,450 in legal admitted what he had done and fully profession at large. fees. Shoemaker eventually repaid the repaid the client. “When an attorney assumes the money. He was charged with felony Loudon County attorney James responsibility of acting as a fiducia- embezzlement and pled nolo conten- Christopher Chamblin8 consented to ry and violates his or her duty in a dere to a reduced charge of misde- revocation of his license for mis- manner that would justify disciplinary meanor embezzlement of less than appropriating more than $850,000 action had the relationship been that $500. Shoemaker was sentenced to a from trusts for which he was trustee. of attorney/client, the attorney may 12-month jail sentence with 12 months Chamblin had repaid approximately be properly disciplined pursuant to suspended. Shoemaker consented to $250,000 at the time he consented to the [Virginia] Code of Professional revocation of his license in February revocation in October 2019. Chamblin Responsibility.”1 See also Comment 5 2020. represented that depression was a con- to Rule of Professional Conduct 8.4, Norfolk lawyer Philip Farthing6 tributing factor to his misconduct. discussing lawyers’ abuse of positions served as the trustee for a set of related Most recently, effective Novem- of private trust, including as trustees, trusts. The trust beneficiary sued him ber 17, 2020, the Disciplinary Board executors, administrators, and guard- for breach of fiduciary duty and sought accepted Richmond attorney Bruce ians, as indicative of an inability to his removal as trustee. The Circuit Matson’s 9 affidavit consenting to revo- fulfill the professional role of attorney. Court for the City of Chesapeake cation of his license. Matson served as The Rules of Professional Con- removed Farthing as trustee and later the former liquidation trustee for the duct at issue in these cases implicate found, after a bench trial, that Farthing liquidation trust for LandAmerica Fi- serious— and sometimes criminal— was liable for $1,382,653 for breach nancial Group, and then as wind-down conduct, including the duty not to of fiduciary duty and $770,471.33 for trustee. The bankruptcy decree pro- disburse, use, or convert funds or unreasonable fees. The Supreme Court hibited Matson from disbursing funds property of a client2 without their of Virginia refused Farthing’s appeal. from the trust until 2021. In 2019, consent, and the duty not to commit Farthing consented to revocation of Matson disbursed $1,000,000 to him- criminal or deliberately wrongful acts.3 his license in January 2020. self and $1,500,000 to another attorney A three-judge panel suspended the who was assisting with the liquidation. Notable Cases license of Manassas attorney David A few months later, Matson disbursed Lynchburg attorney Cherie Washburn4 Wilks7 who transferred $11,000, which an additional $341,000 to himself. consented to revocation of her license he held in trust for a blind, disabled He held the funds in an account in based on allegations that she had mis- client, to his personal account. Wilks appropriated substantial funds that she created a revocable trust for the Bar Counsel continued on page 56
12 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org The Year of Health Law Adaptation by Allyson K. Tysinger s the chair of the Health Law Section Virginia State Bar Board of Governors, I am pleased to introduce this edition of Virginia Lawyer, which highlights the work of members of the Health Law Section. AWhile the pandemic has likely touched all of us in our practice of law, it has truly consumed those of us who practice health law. Thus, it is not surprising that the articles included in this edition have a COVID-19 focus. This issue addresses the work of the Office of the Attorney General in assisting the Commonwealth in its response to the public health emergency, the expansion of telemedicine during the pandemic, the emergency workplace standards of the Department of Labor and Industry that were the first such standards in the nation related to COVID-19, liability risks faced by long- term care facilities due to COVID-19, and a proposal for pre-disposition mitigation of traffic offenses to minimize court appearances to protect public health. As the vaccines for COVID-19 begin to roll out, there is much to look forward to in 2021. National Healthcare Decisions Day is April 16, and this is a great time to not only assist clients with preparing advance directives, but to also prepare your own. You can find information from the Health Law Section on advance directives, as well as free forms, on the Bar’s website. In addition, the Health Law Section is excited to present a CLE at the 82nd Annual Meeting scheduled to be held virtually on June 14-15, 2021. The CLE, titled Natural Questions about Artificial Intelligence: Addressing the Promise and Limitations of Artificial Intelligence in Healthcare, will explain how artificial intelligence is being used in healthcare and offer a variety of perspectives on how clinicians and attorneys are addressing emerging legal issues. We hope to see you there. In the meantime, we wish you all good health and a reminder to wash your hands, wear your masks,and stay six feet apart.
Allyson K. Tysinger is a Senior Assistant Attorney General and Chief of the Health Services Section of the Office of the Attorney General. She and the nine attorneys of the Health Services Section serve as agency counsel to the Department of Health, the Department of Behavioral Health and Developmental Services, the Department of Health Professions, the Department for Aging and Rehabilitative Services, the Department for the Blind and Vision Impaired, and the Department for the Deaf and Hard of Hearing. Her practice is focused on public health and disability law.
www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 13 COVID-19 Liability in Long-Term Care: A Tidal Wave or a Trickle of Litigation in Virginia? by Beth A. Norton
lmost every part of the world result, and as the federal agency that regulates has been negatively impacted by U.S. nursing homes, CMS moved to impose COVID-19. But the U.S. has been thousands of dollars in fines on Anbe, and Ahit hardest, and in terms of COVID deaths, more damagingly, to terminate it from the no other community in the U.S. has suffered Medicare program, which can mean an like the residents of long-term care (LTC) almost certain end for any nursing facility. facilities. At least 94 residents died of COVID early Residents of LTC facilities, namely in the pandemic at two sister New Jersey nursing homes and assisted living facilities, facilities.4 Many family members reported at comprise only about 1 percent of the U.S. or around that time they were unable to get population, but account for an estimated in touch with facility personnel, and many 40 percent of COVID-19 deaths in the U.S.1 hadn’t heard from their loved one in weeks. The CDC explains that, “[t]he communal Police searched the facility and found five nature of nursing homes and long-term bodies in a small holding room. The next day, care facilities, and the population served they found another twelve bodies in the same (generally older adults often with underlying room. medical conditions) put those living in The facility allegedly never contacted nursing homes at increased risk of infection any of the 17 residents’ family members or and severe illness from reported any of their deaths to the authorities. COVID-19.”2 The facility is now facing a proposed class This deadly combination has contributed action lawsuit alleging the owners misled to massive outbreaks in many facilities consumers in violation of the New Jersey across the country, particularly early in the Consumer Fraud Act and failed to protect pandemic, with some facilities even reaching residents in violation of state and federal a 100 percent infection rate among residents. nursing home laws. One Kansas nursing home, the Anbe Massachusetts Attorney General Maura Home, is facing federal penalties after all 63 Healey brought the first criminal case in of its residents became infected with the country against two administrators of a coronavirus, killing at least ten.3 Massachusetts veterans’ nursing home for The Centers for Medicare their part in an outbreak that killed 76 of its & Medicaid Services residents. The extraordinary charges were (CMS) investigated brought after the state found that staffing and found the shortages led the administrators to make the facility failed “tragic and deadly” decision to consolidate to separate two dementia units, resulting in confirmed healthy COVID-19-positive residents knowingly residents being placed near asymptomatic veterans in from the facility. infected No criminal charges have been brought ones. in Virginia against any LTC facility owner As a or administrator, but significant outbreaks have occurred, and as of this writing, they continue to occur. In May 2020, at least 51 residents died at the Canterbury Health & Rehabilitation Center, a skilled nursing facility in Henrico County.5
14 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org And more recently, on Nov. 20, 2020, the Virginia Department of Health reported that Heritage Hall, a nursing home in Big Stone Gap, had 190 infected residents and staff, The Act failed, but resulting in 21 deaths.6 many states, including Immunity for LTC Facilities The inevitable litigation that follows such stories of mass Virginia, had already infection and death are just starting to emerge. Some predict a flood, others a trickle. passed laws providing Conservative politicians certainly believe there will be a flood, which is why they’ve insisted immunity from ordinary negligence suits be included in any additional pandemic relief immunity for long-term legislation.7 Senate Majority Leader Mitch McConnell predicts a “tidal care facilities anyway. wave” of COVID-related lawsuits will be brought against health care providers, intended only “so that trial lawyers can line their pockets.”8 Last July, to prevent these supposed nuisance suits, he and the other Senate Republicans proposed the Safe to Work Act, insisting its provisions be included in any future congressional COVID-19 pandemic response bill. The to the disaster, rendering the health care provider Act contained a safe harbor, retroactive to 2019 and effective unable to provide the level or manner of care for five years, that would have shielded owners of long-term that otherwise would have been required in the care facilities from COVID-related liability if: 1) reasonable absence of the emergency and which resulted in efforts were taken to comply with applicable government the injury or wrongful death at issue. standards and guidance in effect at the time; 2) the facility did not engage in gross negligence or willful misconduct in Governor Northam further clarified that “emergency and responding to the COVID-19 pandemic; and 3) the Plaintiff’s subsequent conditions … attributable to the disaster” include injury or death was caused by actual exposure to coronavirus.9 insufficient availability of PPE or other supplies, insufficient The Act failed, but many states, including Virginia, had already availability of trained staff, and using supplies or equipment in passed laws providing immunity for long-term care facilities innovative ways. anyway. It’s clear that EO60 immunity will apply in COVID-19 cases Virginia Governor Northam signed Executive Order No. in which a LTC facility can reasonably excuse its deviation(s) 60 (“EO60”) on April 28, 2020. EO60 acknowledged that from the relevant standard of care on shortages of PPE due healthcare providers, including nursing homes, were under to supply chain disruptions and/or unavoidable staffing significant stress due to large numbers of patients presenting shortages. with COVID-19 symptoms and critical shortages of personal What’s not as clear about EO60 is whether it will provide protective equipment (PPE) due to supply chain disruptions. LTC facilities immunity for non-COVID-related care they Governor Northam also acknowledged staff shortages within provided during the declared state of emergency. For example, facilities, including it among the difficulties “created by the will EO60 immunity be an available defense in bedsore cases, effects of COVID-19” and presenting “less than optimal common pre-COVID, that involve care provided during the conditions to deliver the healthcare indicated by conventional declared emergency? standards of care.” A subsequently enacted Virginia statute may be instructive EO60’s stated purpose was, in relevant part, to “clarify” on this question. On October 13, 2020, Virginia Code Section that COVID-constitutes a “disaster,”10 as that term is used 8.01-225.0311 was enacted and provides, in relevant part: in Virginia Code Section 8.01-225.02. Section 8.01-225.02 In the absence of gross negligence or willful provides, in relevant part: misconduct, any … assisted living facility … In the absence of gross negligence or willful that delivers care to or withholds care from a misconduct, any health care provider who … resident … who is diagnosed as being or is responds to a disaster shall not be liable for any believed to be infected with the COVID-19 virus injury or wrongful death of any person arising shall not be liable for any injury or wrongful from the delivery or withholding of health care death of such … resident … arising from when (i) a state or local emergency has been the delivery or withholding of care when the or is subsequently declared in response to such emergency and subsequent conditions caused disaster, and (ii) the emergency and subsequent by the emergency result in a lack of resources, conditions caused a lack of resources, attributable attributable to the disaster, that render such www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 15 … assisted living facility … unable to provide or wanton conduct, it must be shown that he the level or manner of care that otherwise was conscious of his conduct, and conscious, would have been required in the absence of the from his knowledge of existing conditions, that emergency and that resulted in the injury or injury would likely or probably result from his wrongful death at issue. conduct, and that with reckless indifference to consequences he consciously and intentionally The new law provides immunity to assisted living facilities did some wrongful act or omitted some known and other providers who might have been excluded from EO60 duty which produced the injurious result.13 immunity since these providers are not expressly defined as “health care providers” in the Virginia Code, and Section In a prior 2004 case,14 the Supreme Court of Virginia explained 8.01-225.02 only provides immunity to “health care providers” the three levels of negligence in Virginia: during declared disasters. The first level, simple negligence, involves the Regarding assisted living cases, there appears to be no failure to use the degree of care that an ordinarily question that the new statute’s immunity will only apply prudent person would exercise under similar where the plaintiff alleges actual coronavirus exposure. There circumstances to avoid injury to another. remains some question, however, whether EO60 immunity The second level, gross negligence, is a degree will apply in non-COVID, ordinary negligence claims against of negligence showing indifference to another nursing homes regarding care that took place in the COVID- and an utter disregard of prudence that amounts era, although the new law could be construed as signaling to a complete neglect of the safety of such other the legislature’s intent that the previous statute and EO60 person. This requires a degree of negligence that immunity apply only in nursing home cases that allege actual would shock fair-minded persons, although coronavirus exposure as well. demonstrating something less than willful recklessness. Gross Negligence and Willful and Wanton Conduct The third level of negligent conduct is willful In any case, wise plaintiffs’ counsel will certainly include and wanton negligence. This conduct is all possible allegations of gross negligence and/or willful defined as acting consciously in disregard of and wanton conduct to overcome possible EO60 immunity another person's rights or acting with reckless defenses, and wise defense counsel should be prepared to indifference to the consequences, with the defend these claims. defendant aware, from his knowledge of existing It is hard to imagine any plaintiffs will allege that a LTC circumstances and conditions, that his conduct facility’s owners or personnel intentionally infected them probably would cause injury to another. with the virus. But as the Supreme Court of Virginia recently decided,12 “…ill will is not a necessary element of willful and What, then, constitutes gross negligence or wanton conduct.” The Court explained: willful misconduct regarding LTC facilities’ acts and In order that one may be held guilty of willful omissions in the COVID-era? Active COVID litigation has not yet come to Virginia. Sean Byrne, managing partner of the Byrne Legal Group, recently reported, “We are not yet seeing claims and lawsuits that directly allege COVID-related liability theories. We will surely see some—they just haven’t matured yet to the point of being claims or suits.” Many other experienced medical malpractice defense and plaintiffs’ attorneys confirmed they were unaware of any current COVID cases against Virginia LTC facilities. But COVID cases alleging gross negligence and/or wanton and willful conduct have been filed in other states and may provide insight into the acts and omissions that might meet Virginia’s applicable standards. A civil complaint brought on behalf of 15 residents, 10 of whom died, has been filed against a Pennsylvania nursing facility alleging the facility engaged in “reckless, willful and wanton conduct” when it failed to take sufficient steps to prevent the spread of the coronavirus.15 The proposed Safe to Work Act suggests that a mere failure to adhere to government guidance might constitute gross negligence or willful and wanton conduct. But authoritative
16 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org federal and state guidance has been, and remains, a Endnotes moving target. The standard of care applicable to any 1 Ricardo Alonso-Zaldivar, “Nursing Home COVID-19 Cases COVID-era case, therefore, will be very time-specific. Rise Four-fold in Surge States,” Washington Post, November 8, 2020. Jury Sympathy 2 Centers for Disease Control and Prevention, “People Who If a plaintiff manages to overcome these legal challenges, Live in a Nursing Home or Long-Term Care Facility,” updated will juries be receptive to claims against LTC facilities for Sept. 11, 2020, accessed Nov. 11, 2020 at https://www.cdc.gov/ the death of their residents? The Virginia attorneys with coronavirus/2019-ncov/need-extra-precautions/people-in- whom we consulted are split on this question. Some think nursing-homes.html. any COVID-related case against a local LTC facility will 3 Brittany Shammas, “Kansas nursing home faces severe federal be a tough sell. Others think it depends on the timing penalties after deadly coronavirus outbreak,” Washington Post, and other circumstances of the alleged acts or omissions. Oct. 27, 2020. Multiple plaintiffs’ attorneys reported they won’t 4 Bill Wichert, “NJ Nursing Facilities Sued Over Dozens of even consider taking a case that involves coronavirus COVID-19 Deaths,” Law360, Sept. 8, 2020. exposure that occurred early in the pandemic before 5 Michael Martz, “Two more die at Canterbury, but nursing definitive government guidance was provided. Neither facility now recovering from COVID-19,” Richmond Times- the CDC, CMS, nor the Virginia Department of Health Dispatch, May 7, 2020, accessed 11/20/20 at https://richmond. (VDH) began issuing COVID-specific guidance until com/news/virginia/two-more-die-at-canterbury-but-nursing- April. facility-now-recovering-from-covid-19/article_f10cda32-38ed- Most attorneys seem to agree that even if EO60 510f-bfdc-9251b661e4b1.html immunity doesn’t automatically apply in non-coronavirus 6 Jeff Keeling, “190 cases, 21 deaths: Outbreak at Big Stone Gap, exposure cases, juries will likely only be sympathetic Va. nursing home driving Wise County COVID death spike,” to plaintiffs in cases of gross negligence or willful and News Channel 11 WJHL.com, Nov. 20, 2020, accessed Nov. 20, wanton conduct anyway. 2020 at https://www.wjhl.com/local-coronavirus-coverage/190- cases-21-deaths-outbreak-at-big-stone-gap-va-nursing-home- Questions Left Unanswered driving-wise-county-covid-death-spike/ There are more questions than answers at this point about 7 Erica Werner and Tom Hamburger, “White House and future COVID-era cases against LTC facilities in Virginia. Congress clash over liability protections for businesses as firms When will EO60 or other immunity provisions apply? cautiously weigh virus reopening plans,” Washington Post, May When it does, what acts and omissions will constitute 3, 2020. gross negligence or willful misconduct? Will plaintiffs be 8 Debbie Cenziper, Peter Whoriskey, Shawn Mulcahy and Joel required to meet these heightened standards in non- Jacobs, “As Nursing Home Residents Died, New COVID-19 coronavirus exposure cases? How receptive will jurors be Protections Shielded Companies from Lawsuits. Families Say toward the plaintiffs and defendants in these cases? that Hides the Truth,” Washington Post, June 8, 2020. But whether it comes as a tidal wave or a trickle, 9 Senate Bill 4317, accessed at https://www.congress.gov/ COVID-related litigation against LTC facilities is coming bill/116th-congress/senate-bill/4317/text#toc-id368E3064D885 to Virginia and, as any litigator will tell you, knowing the 42E7A1FDE5C618B58155. questions is half the battle. 10 Executive Order Number Sixty (2020), accessed 11/21/20 at https://www.governor.virginia.gov/media/governorvirginiagov/ executive-actions/EO-60-Clarification-of-Certain-Immunity- From-Liability-For-Healthcare-Providers-in-Response-to- Novel-Coronavirus-(COVID-19).pdf. 11 https://lis.virginia.gov/cgi-bin/legp604.exe?202+sum+HB5059. 12 Curtis v. Highfill, 840 S.E.2d 321, 324 (Va. 2020). 13 Id. 14 Cowan v. Hospice Support Care, Inc., 268 Va. 482, 486-87 (2004) (citing Gossett v. Jackson, 249 Va. 549, 554 (1995); Griffin v. Shively, 227 Va. 317, 321 (1984); Koffman v. Garnett, 265 Va. Beth Norton is a former cardiac nurse and a graduate 12, 15 (2003); Griffin, 227 Va. at 321; Ferguson v. Ferguson, of the University of Virginia School of Law. She spent several years with Kaufman & Canoles and Hancock 212 Va. 86, 92 (1971) Etherton v. [[Doe]], 268 Va. 209, 213-14 Daniel & Johnson representing healthcare providers (2004)(quoting Griffin, 227 Va. at 321); and Alfonso v. Robinson, in compliance, contract and litigation matters. Now, 257 Va. 540, 545 (1999)). through her firm Norton Health Law in Charlottesville, she represents consumers in a variety of healthcare 15 Y. Peter Kang, Pa. “Nursing Home Hit With Suit Over legal matters, including those related to elder and dis- COVID-19 Deaths,” Law360, October 21, 2020, accessed ability law, as well as general healthcare consumer law, 11/20/20 at https://www.law360.com/articles/1321680/pa- particularly healthcare contracts and litigation. nursing-home-hit-with-suit-over-covid-19-deaths?copied=1.
www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 17 Expansion of Telemedicine during COVID-19 and the Issue of Non-Compete Agreements by Dean E. Lhospital
n March 2020, while COVID-19 was would not have passed muster.4 first beginning to surge in the United In Virginia, one of the minority of states States, there was a corresponding surge that regulates how commercial payors Iin telemedicine visits between patients and reimburse for telemedicine visits,5 insurers healthcare providers including doctors, were obliged to increase their reimbursement nurse practitioners, clinical psychologists, rates for telemedicine visits, and in many and licensed clinical social workers.1 Already other respects treat telemedicine visits as ascendant as a delivery model, but still fairly though they were traditional in-person visits.6 niche and expanding at a measured pace from Accordingly, the increase in telemedicine certain corners of the healthcare industry, in encounters translated to an increase in a matter of weeks the telemedicine market telemedicine revenue, for which providers exploded approximately 80 percent over its were grateful, even if it did not come close to pre-pandemic size.2 offsetting the loss of revenue from cancelled Patients’ reluctance to accept telemedicine elective procedures and other traditional as an alternative to traditional in-person visits sources of revenue. fell away as virtual visits in many instances At this point, the trajectory of telemedicine became the safest or only option to obtain care. is largely dependent on the stickiness of Providers likewise embraced telemedicine the regulatory changes, many of which visits as a way to blunt the precipitous drop were implemented on a temporary basis. in patient volumes and to mitigate the But, it would be reasonable to expect that transmission risks involved with in-person telemedicine will continue to be an attractive appointments, through which providers healthcare delivery modality for patients and could contract the virus and fall ill or be providers even after the current pandemic is quarantined for long periods of time due to resolved. potential exposure, regardless of whether they contracted COVID. Unintended Consequences The widespread adoption of telemedicine While providers and their counsel were busy was made possible in large part by the navigating the acute impacts of this shifting toppling of regulatory barriers in response regulatory and financial landscape and the to the pandemic. As part of the Coronavirus rapid expansion of telemedicine, a host of Preparedness and Response Supplemental other legal and business complications bobbed Appropriations (CARES) Act, the Centers to the surface. One of these was already a for Medicare and Medicaid Services (CMS) long-simmering issue causing heartburn received authority to expand Medicare in the healthcare and legal fields: physician telemedicine, including: bringing 135 new non-compete agreements. When telemedicine allowable services into the fold; expanding appointments skyrocketed beginning in it beyond rural areas to beneficiaries in their March 2020, non-compete provisions own homes; and reimbursing at the same rate suddenly took on a new as traditional in-person visits.3 Technological cast. Most existing barriers also fell away as the HHS Office for agreements do not Civil Rights relaxed enforcement of HIPAA directly address violations against health care providers who telemedicine serve patients in good faith through everyday services as communications technologies that previously a distinct
18 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org modality within a larger practice area, and the framework for analyzing non-compete agreements is almost uniquely unsuited to the modern conundrum posed by telemedicine. Frequently deployed by employers, non-compete provisions in physician employment agreements are designed to protect employers’ legitimate business interests: in keeping personnel who are expensive to recruit, train, and retain, in protecting proprietary business information, and in maintaining patient populations the employer likely built at significant cost, among other reasons. For purposes of illustration, a simplified non-compete clause would provide: Non-Competition. Employee agrees that during the term of this Agreement and for a period of twelve (12) months after termination or expiration of this Agreement (the “Restricted Period”), Employee shall not compete on the directly with Employer by rendering the employees’ same professional medical services Employee ability to earn a provided for Employer, or any subspecialty living, and (3) it is not 8 thereof, within 30 miles of Employee’s practice against public policy. Courts will location during the Restricted Period. examine the aggregate effect of the restrictions in terms of 9 function, geographic scope, and duration. The employer Courts’ views and public sentiment regarding such bears the burden of demonstrating that the restraints non-compete provisions have waxed and waned over time are reasonable under the particular circumstances of the and vary widely from state-to-state. They are frequently case, and the language will be strictly construed against characterized as unfavored restraints on trade, although the the employer, with any ambiguity resolved in favor of the 10 counterpoint is often made that prohibiting them would employee. abridge the freedom to contract, destabilize the healthcare Setting aside telemedicine for the moment, even with workforce, and harm employers who have invested in a seemingly straightforward non-compete clause and a education and training. Some states have categorically traditional in-person practice, Virginia’s apparently middle- prohibited them through legislation, others have attempted to of-the-road approach to analyzing non-compete provisions limit their use in certain professions or codify restrictions or has not been without controversy. Each analysis is highly requirements, while still others have largely stayed out of the dependent on the circumstances of a given case and the conversation and handed off the issue for courts to construe. aggregate effect of the restrictions, meaning each clause For its part, the Virginia General Assembly maintained that is challenged is examined on its own merits, and even some distance until addressing them in a limited fashion impeccably drafted clauses may show cracks when examined by passing legislation effective July 1, 2020, that prohibits in court. As a philosophical matter, some physician groups employers from using “covenants-not-to-compete” with have cautioned against their use, although the guidance certain low-wage employees, who would decidedly not largely tracks the courts’ views that they should not include physicians.7 unreasonably restrict physicians’ practice, and that the public Reticent as the General Assembly may be on the subject, policy considerations of patient choice and continuity of care Virginia courts have been compelled to consider and construe should be respected.11 non-compete provisions exhaustively, resulting in The public policy aspect has always been a somewhat a construction that falls roughly between nebulous concept that seems to either represent a general the poles in relation to other states. In balancing of employer/employee equities, the perceived general, a non-compete provision will sentiment of an artificially harmonized populace, or merely be enforced if (1) it is narrowly as a proxy for a jurist’s opinion. The result of years of ebb and drawn to protect the employer’s flow is that these restrictions are generally permissible but legitimate business interest, (2) scrutinized and strictly construed, with employers bearing a it is not unduly burdensome heavy burden in both drafting and litigation.12 www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 19 Virginia courts have not yet issued any guidance on how Such a result would be unworkable from several angles to analyze noncompete clauses in the context of telemedicine, —legal, practical, and ethical. Telemedicine was born of a which may not be surprising given the novelty of this issue. desire to provide quality health care to underserved, rural Historically, there is a certain lag-time between the populations, which would be completely undermined if the emergence of a new technology and when the courts can entire state became a restricted area, or if only areas in dire digest and assimilate the development and settle into need of healthcare became pock-marked with exclusion areas. any kind of post-prandial ease. Right now, courts are just It would be greater than necessary to protect the employer, opening their menus. Physicians and employers are already unduly harsh and oppressive for the employee, and repugnant asking for the check. to public policy, but that would not even be intended or At the forefront of the turmoil is the issue of geographic desired by any party, it would simply be an unintended scope, which was previously one of the more straightforward consequence of the collision of old laws with a new economy. aspects. In the traditional practice of medicine in specialties That would seem to leave a fundamental paradox where that customarily involve direct patient contact, the patient and the practice of medicine must be deemed to occur where the physician are co-located. In telemedicine, they are patient is located for some purposes, like licensure, in separate, diffuse locations, which raises but where the physician is located for other the question as to where the medicine purposes, such as when construing is being practiced for purposes of a non-compete provisions. Aside the geographic limitation: where the resultant cognitive dissonance, physician is located, where that split-view approach the patient is located, both, But, it would be would not be a panacea. or neither. Physicians may not be in The reflexive impulse reasonable to expect the same place each time would be to see the they render healthcare practice of medicine that telemedicine services, and they occurring where the may be outside the physician is located will continue to be an area they would be when construing a attractive healthcare within if they were geographic limitation; providing in-person after all it is the delivery modality for care. The reality is physician who signed that the geographical the agreement that patients and providers scope consideration is contained the non- built on an assumption compete clause, it is the even after the current that is no longer valid— employee upon whom the that competition happens restraint acts, and s/he is pandemic is resolved. within a particular region likely still conducting business of physical space. It does not from the employer’s facilities account for the new economy using the employer’s equipment and where competition is virtual and technology, whereas patients may be at least state-wide. Add that to the located around the state or even the country. other foundational assumption that has been However, there are plausible arguments to consider invalidated, that patients and providers are in the same the practice of medicine occurring where the patient is located, place at the same time, and the result is a profoundly outdated not the least of which is official guidance from the Virginia analytical framework. Board of Medicine that says that, at least for purpose of However, the solution does not seem to be to allow licensure, “the practice of medicine occurs where the patient is technological and market changes to preclude any enforcement located at the time telemedicine services are used.” 13 However, if of restrictive covenants. The business realities of healthcare still that patient-centric view of where the practice of medicine exist, and a gig economy for physicians also does not represent occurs is applied to the construction of physician non- sound public policy. Telemedicine is often complementary to compete provisions, it would create a swiss-cheese map of in-person visits, so an unstable provider workforce with no Virginia with exclusionary bubbles for miles around each incentive to remain with a certain employer would negatively and every patient the physician saw while s/he worked for impact patient freedom and continuity of care just the same as the employer. would overburdensome restrictions on physicians.
20 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org Finding a New Paradigm Endnotes While the limitations of the current 1 This article uses the definition of “telemedicine” provided in Va. Code Ann. framework should be evident, a new § 38.2-3418.16: “[T]he use of electronic technology or media, including fulcrum that balances employer interests, interactive audio or video, for the purpose of diagnosing or treating a patient physician interests, and patient interests is or consulting with other health care providers regarding a patient’s diagnosis or not immediately apparent. Telemedicine, treatment.” in its ability to expand access to healthcare 2 Telehealth may see big long-term gains due to COVID-19: 10 observations. and potentially reduce the costs of https://www.beckershospitalreview.com/telehealth/telehealth-may-see-big- long-term-gains-due-to-covid-19-10-observations.html (accessed November delivering care, is truly a disruptive 11, 2020). technology, in the laudatory sense of the 3 Billing and reimbursement during the COVID-19 Public Health Emergency, term, and like other industry disruptions, https://telehealth.hhs.gov/providers/billing-and-reimbursement/?section=1,6# it is sending ripples through every private-insurance-coverage-for-telehealth (accessed November 11, 2020). arcane corner of the industry which will 4 Policy changes during the COVID-19 Public Health Emergency, https:// eventually settle into some new normal. telehealth.hhs.gov/providers/policy-changes-during-the-covid-19-public- In the interregnum, other areas may health-emergency (accessed November 11, 2020). flare for example, there may be a greater 5 Lacktman NM, Acosta JN, Levine SJ. 50-State survey of telehealth commercial focus on non-solicitation provisions or payer statutes. https://www.foley.com/-/media/files/insights/health-care-law- confidentiality provisions protecting today/19mc21486-50state-survey-of-telehealth-commercial.pdf (accessed proprietary business information as November 11, 2020). employers look for ways to shore up 6 See Virginia Code § 38.2-3418.16 (D) providing that “[an] insurer, corporation, their business models. Regardless, it or health maintenance organization shall reimburse the treating provider or the will continue to be an interesting topic consulting provider for the diagnosis, consultation, or treatment of the insured to watch for business, employment, and delivered through telemedicine services on the same basis that the insurer, healthcare attorneys, and will undoubtedly corporation, or health maintenance organization is responsible for coverage for consume much time and attention and the provision of the same service through face-to-face consultation or contact.” many billable hours. 7 See Va. Code Ann. § 40.1-28.7:8. Available at https://law.lis.virginia.gov/ vacode/title40.1/chapter3/section40.1-28.7:8/ (accessed November 11, 2020). 8 Modern Env'ts, Inc. v. Stinnett, 263 Va. 491, 493, 561 S.E.2d 694, 695 (2002); Simmons v. Miller, 261 Va. 561, 580-81, 544 S.E.2d 666, 678 (2001). Omniplex World Services v. U.S. Inv., 618 S.E.2d 340, 270 Va. 246 (2005). 9 Simmons v. Miller, 544 S.E.2d 666, 668, 261 Va. 561, 563 (2001); Advanced Marine Enterprises v. PRC Inc., 256 Va. 106, 118, 501 S.E.2d 148, 155 (1998). 10 Blue Ridge Anesthesia v. Gidick, 239 Va. 369, 371-72, 389 S.E.2d 467, 468-69 (1990); Simmons v. Miller, 544 S.E.2d 666, 261 Va. 561 (2001). 11 See American Medical Association Code of Medical Ethics Opinion 11.2.3.1, providing: Competition among physicians is ethically justifiable when it is based on such factors as quality of services, skill, experience, conveniences offered to patients, fees, or credit terms. Covenants-not-to-compete restrict competition, can disrupt continuity of care, and may limit access to care. Physicians should not enter into covenants that: 1. Unreasonably restrict the right of a physician to practice medicine for a specified period of time or in a specified geographic area on termination of a contractual relationship; and Dean Lhospital is Associate General Counsel 2. for the University of Virginia Physicians Do not make reasonable accommodation for patients’ choice of physician. Group, the faculty practice plan affiliated with Physicians in training should not be asked to sign covenants not to compete as a UVA Health. Previously, he worked in UVA’s condition of entry into any residency or fellowship program. School of Medicine and in private practice in Charlottesville. He received his J.D. from 12 Blue Ridge Anesthesia v. Gidick, 239 Va. 369, 371-72, 389 S.E.2d 467, 468-69 George Mason University School of Law, where (1990). Simmons v. Miller, 544 S.E.2d 666, 261 Va. 561 (2001). he was the Editor-in-Chief of the Journal of 13 Virginia Board of Medicine Guidance Document 85-12. Available at https:// Law, Economics & Policy. Previous publica- tions have appeared in the Human Rights and www.dhp.virginia.gov/medicine/guidelines/85-12.pdf (accessed November 10, Globalization Law Review, The Washington Post, 2020). and Virginia Lawyers Weekly.
www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 21 The New Virginia DOLI COVID-19 Emergency Workplace Standards: An Administrative Nightmare for Healthcare Providers by William P. “Scott” Daisley and Elizabeth Dahl Coleman
n July 27, 2020, the Safety and to classify each job task or hazard into one Health Codes Board (the “Board”) of four risk categories: “very high,” “high,” of the Virginia Department of “medium,” or “low.”5 Based on the risk OLabor and Industry (DOLI) enacted the first categories presented by the tasks and hazards mandatory workplace safety rules related present in the workplace, the employer to the COVID-19 pandemic in the nation must then implement certain safeguards (hereinafter referred to as the “emergency and protections, train staff, and formulate standards”).1 and implement an Infectious Disease Since these emergency standards were Preparedness and Response Plan.6 The enacted, and again following the Board’s requirements placed on the employer vary announcement that it was considering based on the risk categories present in the adopting permanent standards based on employer’s workplace.7 these temporary, emergency standards, Few requirements are placed on employers the regulations have been subject to heavy overseeing workplaces that only contain scrutiny, particularly among providers and hazards and job tasks that fall into the “low” associations in the health care community.2 risk category. However, as workplace job While the emergency standards were a well- tasks climb the risk categories, employers intentioned response to the growing public must implement more safeguards and enact health crisis, these standards quickly become more procedures. If an employer has any nearly impossible for health care providers to “very high” or “high” risk employees or has at efficiently implement because of the ever- least eleven employees and one task or hazard changing risk level they face in their role on of at least “medium” risk, they must develop, the frontlines combating COVID-19. implement, and document an Infectious During this pandemic, our health care Disease Preparedness and Response Plan that providers should be focused on providing “consider[s] and address[es] the level(s) of care, treating the sick, and protecting the . . . disease risk associated with various places most vulnerable members of our population. of employment, the hazards employees are As reflected in the Centers for Medicare and exposed to and job tasks performed at those Medicaid Services’ recent initiative, regulatory sites.”8 burdens on providers should be focused Further, all employers with hazards or on ensuring that providers can focus on job tasks of at least “medium” risk must “Patients over Paperwork.”3 Unfortunately, the train their employees on safe and healthy emergency standards force an administrative work practices based on the risk factors nightmare on many providers and prioritize present in the workplace.9 This can quickly paperwork over patient care. become an impossible task for employers with workplaces that present ever-changing The Basic Requirements of the Emergency levels of risk. Many of our frontline health Standards care providers fall into this type of employer. The emergency standards require employers They are forced to brainstorm all hypothetical to evaluate the risk of exposure to COVID-19 circumstances that may present significant presented by the job tasks performed and risk of exposure to their worksite and plan hazards present in that employer’s workplace.4 and train employees accordingly for those Based on this assessment, the employer is hypothetical situations. Provider employers
22 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org are also directed, to the extent allowed by law, to consider their COVID-19 positive cases at her facility, her job tasks currently employees’ own individual risk factors, which can vary wildly fall into the “medium” risk category at the beginning of her and might be unknown to the employer.10 As the COVID-19 shift.15 status of the health care provider’s patients fluctuates, so too However, around lunchtime, nursing home Resident does the level of risk presented by the job tasks performed at Johnson reports experiencing symptoms consistent with that employer’s workplace. This forces health care providers to COVID-19 and that resident is accordingly classified as plan and spend for the worst, increasing time expenditures on “suspected to be infected with COVID-19.” LPN Smith is then excessive documentation as well as costs incurred by acquiring assigned to care for Resident Johnson and any other residents and implementing various protective measures. who develop signs and symptoms of COVID-19. Because LPN Smith’s duties now require her to come within six feet The Volatility of the Risk Presented in a Healthcare Setting occupational contact with a person suspected to be infected The risk presented by exposure to COVID-19 to employees with COVID-19, LPN Smith’s job tasks now fall into the “high” working in healthcare settings can vary by the day, hour, risk category.16 and even minute. This is particularly true of our frontline Two hours after being classified as “suspected to be healthcare workers in nursing homes, assisted living facilities, infected with COVID-19,” Resident Johnson flatlines due to and other settings where they interact with patients, residents, an underlying medical condition. LPN Smith is the closest and other population groups that are particularly vulnerable to nursing home staff member available and immediately COVID-19. Further complicating things for providers is that rushes to provide Resident Johnson with Cardiopulmonary the risk assessments are tied to specific tasks or hazards Resuscitation (CPR). As soon as LPN Smith begins rather than the employee’s job title, meaning that an performing CPR, she is now engaging in a potentially aerosol- employee who performs various roles and responsibilities generating procedure with a person suspected to be infected is likely to encounter varying risks throughout the workday. with COVID-19. 17 This means that LPN Smith is now The “very high” risk classification is limited to hazards or encountering a “very high” risk job hazard in the course of her job tasks where the employee engages in aerosol generated employment.18 Within just a matter of hours, LPN Smith’s job procedures, collecting or handling specimens, or performing tasks have transitioned from being comfortably placed in the an autopsy that involves aerosol generating-procedures on “medium” risk category, to the “high” risk category, to finally a person or body known or suspected to be infected with presenting a “very high” risk job hazard. COVID-19.11 This highest risk classification is limited to Such risk fluctuation is not limited to this hypothetical specific circumstances with extreme risk of exposure to scenario and is representative of the day-to-day challenges COVID-19. “High” exposure risk classification is limited to job many healthcare providers face as they continue to operate tasks and hazards that require high potential for occupational during this pandemic. As the COVID-19 status and incidence contact within six feet with people infected with, or known or rates of residents and patients of the provider fluctuate, so will suspected sources of, COVID-19 that do not otherwise classify the exposure risk level presented by the performance of certain as “very high” risk.12 The emergency standards specifically state job tasks and hazards present that this includes “healthcare . . . delivery and support services in the healthcare provided to a patient known or suspected to be infected with provider’s [COVID-19].13 “Medium” exposure risk hazards or job tasks workplace. are those not otherwise classified as “very high” or “high” exposure risk in places of employment that require more than minimal occupational contact inside six feet” with other persons.14 While these different risk level classifications appear sensible on their face, further analysis shows how they quickly become unworkable in the healthcare provider setting. Consider the following hypothetical scenario to understand how the risk classification could change within minutes in the healthcare setting. Licensed Practical Nurse (“LPN”) Smith shows up to work at the nursing home she is employed at in the morning, just as she does every other day. Her nursing home has no current known or suspected COVID-19 positive cases among its residents. Because Nurse Smith’s job tasks require that she come into occupational contact with other persons within six feet to perform her responsibilities, and there are no known or suspected www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 23 perform the assessment while considering the possibility that some job tasks will likely, at one point or another, involve the highest risk possible, and to indicate what steps or protective ...regulatory burdens on measures will be taken in that case. During this time, it would also be prudent for providers providers should be focused to designate a high-level employee to serve as a resource officer in addition to any individual designated to implement on ensuring that providers the Infectious Disease Preparedness and Response Plan. This individual can serve as the point person for questions from other employees and ensure that the necessary protections can focus on and processes are in place. By identifying one lead individual, any necessary updates to the assessment of job “Patients over Paperwork.” tasks and hazards can be more easily tracked and are more likely to be completed without interrupting patient care. The emergency standards do provide an exception intended to offer healthcare employers a reprieve from the emergency standards. However, this exception offers very little in the way of a practical relief. The emergency standards state that if an employer complies with a recommendation Whereas most employers must only ensure compliance in CDC guidance to mitigate COVID-19 related workplace with the requirements of one risk level, healthcare risks that are addressed by the emergency standards, and providers are placed in a unique scenario in which they the CDC guidance offers equivalent or greater protection essentially must ensure that the requirements applicable than the emergency standards, the employer’s actions will to all risk levels are accounted for and implemented in be considered compliant with the emergency standard.20 their workplace. On top of already extensive hours and the In practice, this exception offers little to no protection enormous expense associated with providing care to patients because, if you have a compliant policy in place, then it must at this time, these regulations increase the time burden on provide at least equal protection to the DOLI standards, healthcare provider employers to ensure that the necessary regardless of the source behind the policy. This exception documentation is created and maintained. goes on to state that “an employer’s actual compliance with a recommendation contained in CDC guidelines . . . shall How do Healthcare Providers Practically Face this be considered evidence of good faith in any enforcement Fluctuating Risk? proceeding related to this standard.”21 The Commissioner of Healthcare providers will always have job tasks of at least Labor and Industry is required by statute to consider good “medium” risk present in their workplace. The emergency faith of the employer when imposing a civil penalty for cited standards require all employers with at least “medium” violations of the emergency standards.22 Therefore, if an risk job tasks or hazards present in the workplace to document and certify that the required COVID-19 disease workplace hazard assessment was performed.19 To ensure that healthcare employers are compliant with the emergency standards at all times, this assessment will need to accurately reflect the risks present in the workplace at any given time. Therefore, when the exposure risk associated with certain job tasks or hazards in the workplace changes, the workplace hazard assessment will need to be updated accordingly. This will require that the provider re-documents and re-certifies this updated assessment. During this pandemic, we want our healthcare providers singularly focused on providing needed healthcare services. Unfortunately, this documentation requirement places an immense paperwork burden on providers, particularly those on the frontlines of the pandemic, and appears to prioritize compliant paperwork over patient health and safety. Legal counsel for healthcare providers should discuss their clients’ options to ensure that these assessments are performed in a timely manner. One potential option is to
24 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org inspector finds that an employer has a deficient policy in place, but Endnotes that policy is derived from a documented CDC recommendation, 1 See §16VAC25-220, Emergency Temporary then the ensuing enforcement penalty may be reduced. It appears Standard Infectious Disease Prevention: that this exception does not offer employers any real protection SARS-CoV-2 Virus That Causes COVID-19, from citation for potential violations but may reduce the as Adopted by the Safety and Health enforcement penalty associated with such citations. Regardless, Codes Board on July 15, 2020, available at all CDC recommendations relied on by employers when crafting https://www.doli.virginia.gov/wp-content/ workplace policies to comply with the emergency standards should uploads/2020/07/COVID-19-Emergency- be documented by the employer, adding yet another documentary Temporary-Standard-FOR-PUBLIC- requirement to the administrative burden placed on healthcare DISTRIBUTION-FINAL-7.17.2020.pdf. 23 providers. 2 See, e.g., comments from the Medical Society of Until additional guidance is provided specific to healthcare Virginia, available at https://townhall.virginia. providers, providers must continue to ensure that all steps gov/l/viewcomments.cfm?commentid=85449, intended to comply with the DOLI standards are documented to the Virginia Hospital & Healthcare Association, the extent possible or show that they have complied with CDC available at https://townhall.virginia.gov/l/ recommendations of equal or greater protection. In the ever- viewcomments.cfm?commentid=86115, and changing healthcare landscape during this worldwide pandemic, HCA Virginia Health System, available at any evidence of intent and good faith actions taken to comply with https://townhall.virginia.gov/l/viewcomments. guidance is critical to protecting provider employers. cfm?commentid=86207. All three of these comments were submitted in connection with Conclusion the recently proposed permanent standards. While the Virginia DOLI emergency standards were borne out of 3 Centers for Medicare and Medicaid Services, a legitimate concern that employers take care of their employees, Patients Over Paperwork Fact Sheet, https:// the emergency nature and quick implementation of the standards www.cms.gov/About-CMS/Story-Page/ have resulted in blind spots that have hindered healthcare provider Patients-Over-Paperwork-fact-sheet.pdf, last employers by increasing the regulatory burden and paperwork updated Aug. 2019. requirements. In a pandemic, the focus of these providers should 4 16 VAC 25-220-40.A.1. be taking all steps to ensure their employees and patients are safe 5 Id. and healthy, without the need to comply with lengthy assessments 6 16 VAC 25-220-50 through -80. and detailed documentation measures that do not capture the 7 See generally, 16 VAC 25-200. reality of the healthcare setting in which risks are ever changing. 8 16 VAC 25-220-70.A. and 16 VAC 25-220- Further discussion and review need to be undertaken in 70.C.3. order to provide healthcare provider employees guidance on 9 16 VAC 25-220-80.A. implementing these regulations to the extent necessary to protect 10 16 VAC 25-220-70.C.3.b. their employees, while recognizing that the “one size fits all” 11 16 VAC 25-220-30 (see definition of “Very high” Virginia DOLI emergency standards are overly burdensome for risk). these employers. 12 Id. (see definition of “High” risk). 13 Id. (see definition of “High” risk). 14 Id. (see definition of “Medium” risk). 15 Id. (see definition of “Medium” risk). 16 Id. (see definition of “High” risk). 17 See Clinical Questions about COVID-19: Questions and Answers, Infection Control, Which procedures are considered aerosol generating procedures in healthcare William “Scott” Daisley is an associate Elizabeth Dahl Coleman is settings?, available at https://www.cdc.gov/ at Mellette PC in Williamsburg. an associate at Mellette PC in coronavirus/2019-ncov/hcp/faq.html. Daisley’s practice focuses on asset Williamsburg. Her practice focuses 18 See 16 VAC 25-220-30 (see definition of “Very purchases, regulatory compliance, and on assisting healthcare providers corporate and licensing matters. While with a variety of transactional high” risk). in law school, Daisley interned at the and regulatory matters, such as 19 See 16 VAC 25-220-50.C.2. and 16 VAC 25-220- New Kent County Commonwealth’s obtaining Certificates of Public Need, 60.C.2. Attorney’s Office for two summers maintaining compliance with changing and worked in both the Lewis B. Puller laws and regulations, and navigating 20 16 VAC 25-220-10.G.1. Jr. Veteran’s Benefits and Elder Law investigations and enforcement 21 Id. Clinics. In his spare time, he enjoys actions. She also routinely provides 22 Va. Code § 40.1-49.4.A.4.a. watching sports, home improvement advice to her healthcare clients projects, and spending time with his regarding employment-related 23 16 VAC 25-220-70.C.8. wife and son. concerns.
www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 25 Pre-Disposition Mitigation of Traffic Cases: A Simple Proposal to Improve Access to Justice, Public Health, and Court Operation during COVID and Beyond by Shawn Mihill
t’s a common scene in jurisdictions throughout numerous, but we will identify and discuss just a the Commonwealth: a traffic docket is getting few. First, defendants who can afford an attorney Iunderway in General District Court. There are a do not need to appear in court to get the benefit handful of lawyers mulling near the front along with of a reduction or dismissal. Defendants who can several law enforcement officers. The courtroom neither afford an attorney nor afford to miss a day of is packed, by socially distanced standards, and the work or childcare to come to court are left with two overflow is filling the hallway where social distancing options: plead guilty by pre-paying the offense with guidelines are generally disregarded or impossible. no possibility of a reduction, or not appear in court, The judge takes the bench, and the courtroom be found guilty in their absence, and be assessed the comes to order. The clerk calls the first attorney who additional “tried in absence” fee. Either pre-paying zips through his or her cases, passing up driving the offense or being found guilty in their absence records and driving school certificates to get the leads to a conviction as charged. anticipated reductions for that jurisdiction. This Second, many courts have been forced to close process repeats for each attorney in sequence, some on short notice when COVID cases are diagnosed of whom may have ten or more cases on that docket. among staff. These sporadic, unforeseen closures After that, the clerk calls through the remaining often lead to defendants missing work to come docket. The defendants who are present may state to court, only to find that their cases have been their case or ask for time to complete driving school, continued to another date. Defendants then must get their license restored, and so on. Any remaining decide whether missing an additional day of work or cases for which the defendant did not appear will be childcare is worth returning to court for a second or handled in their absence with convictions as charged subsequent appearance. accordingly, along with the $35 “tried in absence” fee Finally, in the era of COVID, minimizing indoor which gets added to their court costs.1 exposure to crowds is essential. Traffic dockets This system, or something are often one of the busiest days in the general comparable, is frequently district courts, drawing dozens of people into used throughout the small courtrooms and the surrounding hallways. Commonwealth. Such Despite mask requirements, individuals who may systems have been in be susceptible to the worst effects of COVID may place for years, and reasonably decide that their day in court is not worth they are flawed on the risk. For those who do choose to show up, they multiple levels. That risk exposure to crowds they would otherwise be able is the bad news, to avoid. along with the fact These problems could be solved through a single, that change is not straightforward solution: pre-disposition mitigation necessarily easy. of traffic offenses. A few primarily procedural The good news, changes could provide defendants who are unable however, is that to retain an attorney or to miss a day of work or change is possible, childcare with the same opportunities afforded and improvement is to defendants who can; it would allow elderly readily attainable. and immune-compromised defendants equal legal The problems with options without taking a health risk for their day the current system are in court; and it would allow courtrooms to run
26 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org more efficiently while each charged with speeding avoiding large numbers This change would increase on several occasions of people congregating may end up with very in proximity for hours. access to justice by allowing different driving The first thing records: appearances that would have defendants who cannot by the defendant or to change, albeit a counsel could lead slight change, is the hire an attorney or miss a to dismissals or uniform summons reductions to non- itself. A simple box day of work or childcare to moving violations for for a checkmark could receive the same favorable a total of zero DMV be added for the law demerit points, while enforcement officer to disposition as those not appearing would lead indicate whether the ticket to convictions of moving is eligible for pre-disposition defendants who can. violations, DMV demerit mitigation. This would be points, likely higher fines, very similar to, or in lieu of, additional costs for being tried in the current box that an officer can their absence, and the possibility of check if no appearance is necessary. license suspension. If the officer checks the “pre-disposition Although this change, if enacted, would mitigation eligible” box, that will identify to the court address traffic matters specifically and not more serious that the defendant was relatively polite and cooperative criminal charges, it is nevertheless essential that every throughout the interaction and there were no issues to defendant be afforded the same opportunities. Even raise before the court other than what the ticket was though indigent defendants facing traffic charges are not issued for. If the law enforcement officer does not check afforded the right to counsel, the repercussions on their the box for any reason, the traditionally available options day-to-day lives can be just as substantial and severe as would still be available and an appearance, by defendant those associated with some criminal convictions. or counsel, would be required for any potential reduction. Finally, in the era of COVID, and likely beyond, For those tickets that are deemed eligible for pre- social distancing will continue to be important. Pre- disposition mitigation by the officer, additional details disposition mitigation would allow elderly and immuno- would be provided to the defendant regarding their compromised defendants the same opportunities as options. Such options could either be listed on the revised others without risking their health or lives. It would summons or mailed to those defendants whose cases are also allow courts to continue processing cases, avoiding deemed eligible. The generic information would advise docket backlogs, and reducing courthouse crowding. The the defendant that they can provide certain documents minor changes to the paperwork and processes would be (i.e., driving record, certificate of driving school easily justified considering the benefit for the issues that completion, etc.) by a certain date prior to their court matter: access to justice, public health, and operation of date. the courts. Upon receipt of such documents, the court could Endnotes offer an early disposition by advising the defendant, 1 General District Court Manual, Chapter 4: Traffic Case based on the documents provided, how their charge Procedures. Revised 7/20. http://www.courts.state.va.us/courts/ will be amended to a reduced charge with a specific fine gd/resources/manuals/gdman/chapter04.pdf. or costs, or dismissed with costs, or any other available disposition. That notice could also advise that if the defendant wishes to present any additional evidence to the court, they must appear on their given court date to do so; otherwise, they will be considered to have accepted the given disposition. This change would increase access to justice by allowing defendants who cannot hire an attorney or miss a day of work or childcare to receive the same favorable disposition as those defendants who can. While licenses Shawn Mihill, [email protected], is an are no longer suspended for fines and costs, DMV associate at Anderson & Associates, PC in Virginia Beach. A graduate of Wake Forest University School of suspensions based on DMV demerit points are still Law, his practice consists of criminal defense and civil common. A wealthy defendant and an indigent defendant litigation in courts throughout the Commonwealth. www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 27 The COVID-19 Pandemic: The Legal Issues, the Public Impact, and Our Progress by Mark R. Herring, Attorney General of Virginia
This past year has been unprecedented immediately took steps to put crucial safety in a myriad of ways, but especially in the measures and guidelines in place to keep Tchallenges brought on by the COVID-19 Virginians safe and slow the spread of the virus. pandemic, that has seemingly impacted every These measures included things like closing aspect of Virginians’ lives. in-person K-12 schools, limiting restaurants to Virginians have had to adjust to a “new delivery or takeout only, closing recreational normal”, which for many folks, including and entertainment businesses, limiting the members of the Bar, means working from number of patrons in certain brick and mortar home, remote learning for their children, an retail businesses, and issuing a temporary “stay abundance of family or at-home time, and so at home” order. much more. But no sooner had Virginia’s life-saving Even the work of my office has been affected mitigation efforts taken effect, then legal by the pandemic. In addition to continuing our challenges began to be filed throughout the normal legal work, the Office of the Attorney Commonwealth. Defending these important General has assumed a major role in helping safety measures was up to my team and me, the Commonwealth navigate the COVID-19 and I’m proud to say that, to date, we have pandemic. successfully defended Virginia’s COVID-19 My office has been in a unique position safety measures in court more than 20 times. during this extraordinary time because of Courts across the Commonwealth have our role as counsel to all state agencies across ruled that these safety measures are crucial to Virginia, and particularly those that have been protecting the public health and ensuring that charged with responding to the pandemic, as Virginians and their families remain safe and well as our responsibility to defend Governor healthy during an unprecedented global health Northam’s COVID-19 safety measures in court. crisis. When Virginia first began to feel the But my team’s work didn’t stop at defending effects of the COVID-19 pandemic in Virginia’s COVID-19 safety measures. We were March 2020, Governor Northam also instrumental in providing counsel and advice to virtually every state agency to help them respond to the pandemic and provide necessary services and tools to the citizens they serve. Right at the outset of the pandemic, my Health Services Section immediately jumped into action making sure that the Virginia Department of Health had all the resources they needed to address this once-in-a-lifetime public health crisis, including finding avenues to quickly increase capacity at hospitals and expand our healthcare workforce, as well as enabling the provision of tools to assist Virginians in mitigating the effects of the pandemic, such as an exposure notification application and a platform to link Virginians to needed services. Their colleagues in the Government Operations and Transactions Division did extraordinary work to enable their respective
28 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org agencies to respond to the pandemic. And now, with the vaccine rollout underway across the Commonwealth, my team has been instrumental in helping the Department of Health as well as its local health districts with its legal needs related to the distribution and administration of the COVID-19 vaccine. No sooner had Virginia’s As colleges and universities across Virginia began to realize they may have to shorten the life-saving mitigation academic year, my Education Section went to work helping schools assess the best courses of efforts taken effect, then action to ensure their students and surrounding communities stayed safe. And, once schools legal challenges began decided to return to campus in some capacity, we helped them develop the best processes for to be filed throughout that to happen. The COVID-19 pandemic also impacted the 2020 Presidential election and the primaries the Commonwealth. leading up to it. The attorneys in my office who represent the Board of Elections and the Department of Elections played a pivotal role in ensuring that last year’s election cycle went smoothly, despite the pandemic. They developed solutions and put out guidance to make sure every Virginian had a safe, comfortable, easy voting experience, whether they chose to vote early absentee, early in person, or on Election Day. My team and I negotiated options to promote safe, secure voting for Virginians who could not or did not want to risk their health to vote in person, including an agreement that waived the witness requirement for absentee ballots for Virginians who feared for their safety voting in person, and an agreement that made it easier for Virginians with disabilities to participate in the election safely at home. As the Attorney General of Virginia, Mark Herring works to Without a doubt, I can say that 2020 was an keep Virginians and their families safe while promoting justice, equality, and opportunity. He is leading efforts to combat the unparalleled year for every Virginian, but I can heroin and opioid crisis, to reduce gun violence, to transform also say that I don’t think Virginia would have the way Virginia deals with sexual and domestic violence, and to been able to weather all of the challenges the protect Virginia taxpayers from abuse and scams. Raised by his mom in Loudoun County, he received year brought without the extraordinary efforts bachelor’s and master’s degrees from the University of Virginia of the Office of the Attorney General. and graduated with honors from the University of Richmond Even in the most difficult of times my School of Law. Herring began in public service as the town attorney team has stepped up to make sure that the for Lovettsville. He served on the Loudoun County Board Commonwealth’s legal needs are met, ensuring of Supervisors, and the Senate of Virginia representing parts that the state is in the best position to respond of Loudoun and Fairfax Counties while working to bring technology-based economic development to the Northern to the pandemic and protect public health and Virginia region, secure transportation funding for needed safety. I am incredibly proud of their hard work projects, and make both state and local governments more and dedication to the people of Virginia. accountable to the citizens of Virginia.
www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 29 Goodbye VPNs – Hello Zero Trust Network Access by Sharon D. Nelson and John W. Simek
Virtual private networks (VPN) are very to half (49 percent) of the firms elevated standard these days. But they are riddled the role of CISO to board visibility while with vulnerabilities – and subject to a 39 percent had a Zero Trust oriented “man in the middle attack.” They wreaked pilot for 2020. havoc in 2020 in a work-from-home • The migration towards Zero Trust faces environment. various challenges, with 76 percent of the firms identifying Identity and Enter Zero Trust Network Access (ZTNA) Access Management (IAM) as the major An October 2020 Forrester study (com- challenge. missioned by Cloudflare) offered some key findings: For those who are unfamiliar with the Zero • Working from home compelled firms Trust security model, it allows remote work- to transform how they operated in ers to access applications through a secure the cloud. However, 80 percent of the web-based gateway. The solution imple- IT decision-makers interviewed said ments least-privilege principles and supports their companies were unprepared to multi-factor authentication (MFA) and device make the transformation. Existing IT security checks. Unlike a VPN infrastructure, practices made it difficult to support Zero Trust is highly scalable, more affordable, employee productivity without security and easily integrates with various single sign- compromises. on (SSO) platforms already available in the • As a result, 76 percent of the decision- marketplace. It also permits the configuration makers said their firms intend to of access control policies to manage permis- accelerate their shift to the Zero Trust sions based on users’ privileges and devices. security framework. More than three- More than half of all businesses have quarters (76 percent) of decision-makers experienced data breaches (58 percent) or polled said their companies’ security increased phishing attempts (55 percent) practices were “antiquated” and needed during COVID-19. Ransomware attacks to shift towards Zero Trust Network affected 29 percent of the respondents. Access. Infrastructure outages and VPN connec- • The report found that 82 percent of tion latency issues disconnected 33 percent the firms said they were “committed” and 46 percent of workers, respectively. to migrating to a Zero Trust security Several vendors offered their services for architecture. To achieve this goal, close free or on extended trial periods to allow
30 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | GENERAL INTEREST www.vsb.org GENERAL INTEREST customers to test their Zero Trust security solutions during COVID-19. The free trial period allowed companies to migrate to a Zero Trust security model and test advanced security solutions from reputable vendors. They could then select the products that met their security needs and sign up on a perma- nent basis.
Why the sudden interest in a Zero Trust architecture? The short answer is the migration to the cloud, the increase in third-party service providers, and the need for mobility. Protecting the security perimeter was fine if all the services and people were within the network boundaries. A VPN assumes that a trusted device is now outside of the perimeter and needs to connect securely to inside resources. With more cloud services and a mobile workforce, we need an architecture that provides security for the user and application regardless of location or device. Sharon D. Nelson is a practicing attorney and the president of Sensei Enterprises, Inc. She is a past Even though Zero Trust Network Access as a VPN replace- president of the Virginia State Bar, the Fairfax Bar ment is right around the corner, it is not a solution for every- Association, and the Fairfax Law Foundation. She is one or every application. Zero Trust works great for applica- a co-author of 18 books published by the ABA. [email protected]. tions that have migrated to the cloud where the users that need authentication are clearly identified (such as the employees of a law firm). In other words, you have identified those users that need access, and you trust nobody else. Users can still be a problem even with ZTNA. If a cybercriminal gains access to a valid user’s credentials, they can access resources just like the authorized user. In other words, if the user continues to reuse passwords or doesn’t use multi-factor authorization, an attacker may gain access just like John W. Simek is vice president of Sensei Enterprises, a valid user. Inc. He is a Certified Information Systems Security We always knew Zero Trust Network Access was coming, Professional, Certified Ethical Hacker and a nation- but COVID has accelerated its arrival. And just like any other ally known expert in the area of digital forensics. He and Sharon provide legal technology, cybersecurity technology, ZTNA must be securely implemented with strong and digital forensics services from their Fairfax firm. [email protected] authentication controls to protect users from outside attacks. q
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Save the Date: Friday, May 7, 2021
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www.vsb.org GENERAL INTEREST | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 31 OPINION Virginia’s Cash Bail System: Denying Due Process to the Poor by Clarence M. Dunnaville Jr.
Judge David Bernhard of the Fairfax inequitable, poverty-criminalizing system, Circuit Court recently held in a which has evolved over time, in my view, landmark decision that a cash or surety and the view of many advocates for justice bond of $2,500, imposed by a Fairfax (including the Attorney General), should General District Court judge against be totally abolished. There are no standards an indigent person, first-time, DWI or guidelines in the applicable statutes, and defendant, violated the Fourteenth the amounts set in particular cases are often Amendment of the United States arbitrary and capricious. Judge Bernhard Constitution. Judge Bernhard’s decision, quotes the eminent former Richmond is a very welcome answer to what is, in Commonwealth’s Attorney, Michael Herring, my view, a dilemma faced by all judges as stating his method of formulating bail within the Commonwealth seeking to recommendations before himself abandoning administer justice, in wrestling with the use of cash bail, as follows: question of pre-trial release. …when I was a junior Commonwealth’s The case at hand reached Judge Bernhard attorney and the judge looked down at on appeal from a motion to set reasonable bail me and said, ‘Mr. Herring, what’s your of the indigent defendant, Corey Hunter, who recommendation on bond?’ . . . . “I’d was required to linger in jail for days after his think, “OK, it’s a felony, seems like it arrest solely because of his financial inability ought to be four figures…” to meet the $2,500 cash bail condition. A number of judges and prosecutors around This “pull it out of the air” method of the Commonwealth have already dropped setting cash bail disapprovingly referenced cash bail requirements. Hopefully, those who by Herring, based on custom, instinct, and still require cash bail will agree with Judge arbitrary action, is followed throughout Bernhard, take heed of his reasoning, and the Commonwealth. This system imposes follow his lead. severe suffering on the indigent, who, solely Reform of Virginia’s antiquated and because they are impecunious, must linger unconstitutional cash bail system has in jail, often for months, while awaiting trial. been urged for years. Virginia’s rickety, The defendants in these cases are frequently
32 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | GENERAL INTEREST www.vsb.org GENERAL INTEREST
Blacks and other minorities, and the present judges within the Commonwealth should system is, in reality, state-imposed racial select any specific terms for release. Further, discrimination. and disturbingly, neither Section 19.2-80 When a defendant is acquitted or the or Section 19.2-123 speak to presumptively charges dismissed, as occurs in a substantial releasing a person on their own recognizance percentage of cases, the end result is that an if the individual poses no risk to the innocent defendant may wind up spending far community, and where there is little risk that more time in jail than if he or she had been the individual will fail to appear for trial. convicted. In addition, he or she will always sustain great personal and family losses, that When a defendant is acquitted or the charges dismissed... may not be repairable. I am personally aware the end result is that an innocent defendant may wind up of a heart-wrenching case where a falsely accused young woman of color lost her job spending far more time in jail than if he or she had been and was evicted from her home, in a case convicted. where she was charged with a crime and arrested and required to remain in jail because Judge Bernhard’s decision that “the she could not meet the cash bail requirement. imposition of the cash or surety bond The case against her (after several . . . would only be the product of resort to adjournments) was dismissed. For her, life as custom, instinct and arbitrary action, and it existed was completely destroyed. When her thus would be an unconstitutional application nightmare in jail ended, she was homeless and of the Virginia statutory bail bond scheme, in without employment. I do not think her case derogation of the Due Process Clause of the was a rare exception. The jailing of indigent United States Constitution,” is a great victory defendants awaiting trial clearly leads to this for all who insist that Equal Justice Under Law type of tragic result. must prevail in Virginia. Virginia Code Section 19.2-80 sets forth It is, however, only a very important the statutory authority for imposing bail. and much needed “stop gap” remedy. The That Section only provides that in any case Constitutional infringement presented by in which an arresting officer does not issue a use of cash bail must be fixed by the General summons, “a law enforcement officer making Assembly. It is urgent that the General an arrest . . . shall bring the arrested person Assembly move with all deliberate speed to without unnecessary delay before a judicial abolish Virginia’s antiquated, unconstitutional officer. The judicial officer shall immediately cash bail system. q conduct a bail hearing and either admit the accused to bail or commit him to jail.” Thus, We welcome opinion editorials from Virginia Section 19.2-80 specifies only for “bail or jail.” lawyers on topics relevant to the legal Code Section 19.2-123 contains the profession and justice. Please send your conditions upon which a judicial officer may submission to Deirdre Norman at dnorman@ impose pre-trial release of one accused of a vsb.org, or call (804) 775-0594. misdemeanor or felony. These conditions expand what is meant by “bail” in Section 19.2-80, in that they allow for “bail or jail,” but Section 19.2-123 provides for conditions not tied to cash: (1) placing the accused in custody of a designated person or organization, (2) placing the person on restrictions, (3) and for a number of additional authorized conditions for release that are specified that may be imposed if Clarence Dunnaville Jr. is a well-known attorney, civil deemed necessary to assure appearance at rights veteran, legal reformer, author, and activist for trial, and to monitor a defendant’s pre-trial justice. He is the inaugural recipient of the Virginia conduct. Importantly, there are no directions State Bar’s annual Clarence M. Dunnaville Jr. Award, created in honor of his unceasing devotion to improv- as to when and under what conditions ing diversity and equality in the Commonwealth. www.vsb.org GENERAL INTEREST | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 33 April 26, 2021 8:30 a.m. – 5:15 p.m.