With COVID-19 surging as the United States enters the winter months and holiday season, employers in all industries can expect to grapple with significant COVID-19 hazards for the foreseeable future. Employers in the healthcare industry though are doubly burdened not only by increased workloads stemming from higher numbers of ill patients, but also by increased health and safety risks for their workers. Accordingly, healthcare employers should pay close attention to guidance and updates from the Occupational Safety and Health Administration (OSHA) and implement appropriate plans and protocols—if not already in place—to address COVID-19 hazards to their workers.

OSHA recently announced that, through November 5, 2020, it had issued 204 citations based on alleged violations related to COVID-19. These citations resulted in $2,856,533 worth of proposed penalties and generally stemmed from complaints, referrals, or fatalities in a number of essential industries, such as “hospitals and healthcare, nursing homes and long term care settings, and meat/poultry processing facilities.”


Continue Reading Healthcare Industry Employers, Take Heed: OSHA Issues Most Cited Standards Related to COVID-19 Hazards

Winstead PC Shareholder Sarah Churchill Llamas recently spoke with Medpage today about the federal emergency orders in response to the Covid-19 pandemic that currently allow physicians to prescribe opioid medications to patients via telemedicine. An excerpt is below:

“In the COVID-19 era, under relaxed federal emergency orders, licensed clinicians have been able to prescribe opioid analgesics for their patients even if they’ve only ever seen the patient via telehealth, rather than in person.

For providers like Stephen Bekanich, MD, a palliative care physician for Ascension Texas in Austin, this provision allows him to help seriously ill patients without requiring in-person visits that may be difficult for them or could expose them or their caregivers to the virus.


Continue Reading Sarah Churchill Llamas in Medpage Today: Docs Can Prescribe Opioids Via Telemedicine, for Now

In order to clarify the required procedures for changes of ownership of entities that have received Paycheck Protection Program (“PPP”) funds, the Small Business Administration (“SBA”), on October 2, 2020, released a Procedural Notice. Specifically, the Procedural Notice addresses the procedures companies with outstanding PPP loans must follow when undergoing a change of ownership, including mergers, equity or asset acquisitions, or ownership restructurings.[1]

Prior to the October 2, 2020 Procedural Notice, SBA loans typically required prior SBA approval for any transaction involving a change of ownership, regardless of the percentage change. Without further guidance from the SBA, PPP lenders have been cautious in granting their consent to their PPP borrowers’ change of ownership transactions without prior SBA approval in order to avoid potential defaults and forego forgiveness rights of the PPP loan.


Continue Reading SBA Procedural Notice Summary – Changes of Ownership

It’s no secret that the Department of Justice has made the False Claims Act (“FCA”) a priority for years.  Last month, we discussed why regulatory changes in response to Covid-19 (e.g., STARK waivers) could provide additional bases for the government to bring FCA cases.  This post addresses the basics of cooperation credit for defendants who cooperate with the Department of Justice during an FCA investigation.

Continue Reading Understanding the Basics of Cooperation Credit in False Claims Act Matters

As landlords and tenants continue to navigate the uncertainties of traditional office and retail properties in the era of COVID, one asset type that has emerged as more resilient in this new environment is life science real estate.[1] The spaces utilized by biotech and pharmaceutical companies, as well as medical research facilities, are highly technical, with site-specific functionality that cannot be replicated by remote work environments.  As a result, life science real estate continues to attract tenants and property owners continue to invest in this sector.  However, utilization of space for life science uses—wet and dry laboratories, warm rooms and cold rooms, and other activities—presents a number of specific issues for both tenants and landlords that should be considered in any lease transaction. Below is a summary of some of those issues from both a tenant’s and a landlord’s perspective.

Continue Reading Issues in Life Science Leases

How do you take a negative and turn it into a positive? COVID-19 has made answering this question very difficult, as the pandemic continues to have a negative and in some cases long lasting and devastating impact on people’s daily lives and the many businesses that help sustain daily living.  One area of business that has been hit particularly hard, as a result of the pandemic, has been the hospitality industry. According to a new national report completed by Trepp [1], the hotel industry is facing an unprecedented number of foreclosures as the COVID-19 pandemic continues to devastate small business hotel owners and its workforce. More specifically, American Hotel & Lodging Association (AHLA) conducted a survey of more than 600 hotel owner respondents and more than half of them stated that they are in danger of losing their property to foreclosure by commercial real estate lenders due to COVID-19.[2] As a result of these market conditions, some senior living developers and operators see a growing opportunity to capitalize on the hotel foreclosures by converting them to assisted living facilities.[3]  However, turning this negative into a positive won’t go without its challenges, and developers and owners should be mindful of some pitfalls when attempting to make this conversion a reality in Texas.

Continue Reading Hotel Conversions to Assisted Living in the Wake of COVID-19

Regulatory developments—such as the Stark Law blanket waivers and the OIG’s enforcement deferral for use of the waivers—have helped healthcare providers during the COVID-19 crisis, but healthcare fraud remains a prime target of the DOJ and the OIG (in addition to state regulators).  Between October 2018 and September 2019, the DOJ obtained over $3 billion in judgments and settlements from fraud claims, a substantial portion of those claims relating to healthcare fraud.[1]  The significant increase in qui tam litigation since the 1980s is also notable.[2]  So what fraud and abuse actions could regulators pursue in COVID-19’s shadow?
Continue Reading Do Covid-19 Regulatory Changes Pose an Increased Risk of Fraud and Abuse Liability for Healthcare Providers?

Among the multitude of relief options under the CARES Act, the U.S. Department of Health & Human Services (HHS) allocated provider relief funds (PRF) to healthcare providers.  Phase I in late April saw healthcare providers receive $50 billion in general PRF distributions, largely based on historical Medicare volume or net revenues.  Phase II followed in early May with general PRF distributions of $15 billion for Medicaid, Children’s Health Insurance Program (CHIP), and dental providers.  And continuing after that, HHS issued some $52 billion in targeted PRF distributions among: (1) hospitals treating large numbers of COVID-19 patients; (2) rural providers; (3) skilled nursing facilities; (4) safety net hospitals; and (5) tribal healthcare providers.  All in all, HHS issued $175 billion in PRF to support healthcare providers.

Continue Reading If You Received Provider Relief Funds Under the CARES Act, Are You Preparing Adequate Support for Your Use of the Funds?