New Platform to Facilitate Development of COVID-19 Technologies

The United States Patent and Trademark Office (USPTO) has launched a new platform that could expedite the development of COVID-19 related technologies. As explained in the USPTO’s press release, the Patents 4 Partnerships web-based marketplace is designed to “facilitate the voluntary licensing and commercialization of innovations in a variety of key technologies” related to “the prevention, treatment, and diagnosis of COVID-19.”

The Patents 4 Partnerships IP marketplace platform currently lists 175 granted U.S. patents and pending U.S. patent applications, covering such diverse technologies as “Methods of Treating Coronavirus Infection,” “Air-Sampling Device and Method of Use,” “Rapid and Highly Fieldable Viral Diagnostic,” and “Dexterous Humanoid Robotic Wrist.” According to the press release, the initially listed items were “drawn from a variety of public sources, including the USPTO, the Federal Laboratory Consortium for Technology Transfer (FLC Business), the AUTM Innovation Marketplace (AIM), universities, and a number of federal agencies.”

Stakeholders wanting to add their U.S. patents or applications to the Patents 4 Partnerships platform can complete this simple form. As noted on the form, the technology should be “reasonably related to the prevention, treatment, diagnosis, protection from or alleviation of symptoms of coronaviruses in general.”


© 2020 Foley & Lardner LLP

For more in COVID-19 tech-development, see the National Law Review Coronavirus News section.

U.S. District Court Issues Temporary Restraining Order for Silver Products Fraudulently Promoted as a Treatment for COVID-19

On April 29, 2020, the U.S. District Court for the District of Utah issued a temporary restraining order (TRO) to halt the sale of a fraudulent coronavirus (COVID-19) treatment.  The U.S. Department of Justice (DOJ) announced the court’s decision in an effort to halt the sale of silver products fraudulently claimed to prevent and cure COVID-19.

DOJ filed a civil complaint on April 27, 2020, against defendants Gordon Pedersen of Cedar Hills, Utah and his companies, My Doctor Suggests LLC and GP Silver LLC.  The complaint alleges that defendants began fraudulently promoting and selling various silver products in early 2020 with claims that the silver products would treat and prevent COVID-19.  Some of the alleged false and misleading claims made by defendants include that having silver particles in the bloodstream would block the virus from attaching to cells, that silver would “usher” the virus out of the body, and that silver would destroy all forms of viruses and protect against COVID-19.

The U.S. Food and Drug Administration (FDA) issued a statement on the Utah case that “FDA will continue to help ensure those who place profits above the public health during the COVID-19 pandemic are stopped” and that FDA is “fully committed to working with the Department of Justice to take appropriate action against those jeopardizing the health of Americans by offering and distributing products with unproven claims to prevent or treat COVID-19.”

The enforcement action will be prosecuted in a coordinated action by the U.S. Attorney’s Office for the District of Utah and the DOJ Civil Division Consumer Protection Branch, with the assistance of the FDA’s Office of Criminal Investigations and Office of the Chief Counsel.  In addition to the TRO, prosecutors obtained a separate court order temporarily freezing the defendants’ assets in order to preserve the court’s ability to grant effective final relief and to maintain the status quo.  A hearing on the DOJ’s request for a preliminary injunction is set for May 12, 2020.  If the case proceeds to trial, the government will need to prove its allegations to obtain a permanent injunction against the defendants.

In another case, DOJ announced on April 17, 2020, that the United States District Court for the Southern District of Florida issued a TRO to halt the sale of an unapproved and potentially dangerous industrial bleach product being marketed as a “miracle” treatment for COVID-19.  The FDA and the U.S. Federal Trade Commission (FTC) had issued a warning letter to the defendant, Genesis II Church of Health and Healing, on April 8, 2020.  According to the FDA, oral ingestion of the defendant’s product called the Miracle Mineral Solution can cause nausea, vomiting, diarrhea, and severe dehydration.  The FDA and the FTC have issued nearly 40 separate warning letters in 2020 to companies selling unapproved or misbranded products with claims to prevent or to treat COVID-19.

Commentary

Particulate elemental silver and silver salts can be effective antimicrobial agents, and numerous products containing these active ingredients are currently registered for various antimicrobial uses.  The U.S. Environmental Protection Agency, along with other federal agencies, are working to ensure that necessary reviews and approvals of legitimate products intended to address COVID 19 are as expeditious as possible.  Products that need these regulatory reviews and approval, but that are marketed without them, are and will likely continue to be a current enforcement focus.


©2020 Bergeson & Campbell, P.C.

For more in COVID-19 fraud prevention, see the National Law Review Coronavirus News section.

IMS Insights Podcast: Episode 9- Rudhir Krishtel On Mindfulness And Wellness For Attorneys Amid COVID-19

In this episode, Rudhir Krishtel joins us to share guidance on mindfulness and wellness for attorneys. He also provides tips and strategies to help with adjustments for those balancing the intense demands of a legal career during the uncertainties of the COVID-19 pandemic.

In his lawyer days, Rudhir practiced law for fifteen years as a federal clerk, patent litigation partner at Fish & Richardson, and later as senior patent counsel at Apple.

Today, he is a certified Co-Active Coach and facilitator, focusing on workplace wellness and intensity for law firms and attorneys. Many lawyers struggle with stress and lack of purpose in their practice. As a former lawyer, Rudhir coaches clients and hosts workshops to identify the issues that hold lawyers back from advancing in their career with clarity and fulfillment.

His work during his lawyer days led Rudhir to train as a yoga teacher through the Baptiste Institute and on mindfulness meditation through Warrior One. He also a Professional Certified Coach through the Coaches Training Institute & International Coaching Federation, and uses this training along with his experience as a practitioner to deliver much-needed support for the legal community. Details on Rudhir’s consulting and mindfulness workshops for attorneys can be found at www.krishtel.com.

Transcript

Teresa Barber: Rudhir, hello, thank you. I really appreciate you joining us today. Could you tell me just a little bit for our listeners… Tell us a little bit about your background as an attorney and a little bit about your consulting practice.

Rudhir Krishtel: Yeah, Teresa, thank you so much, and thanks IMS for having me here. I was practicing law for 15 years. I started at my practice as a federal clerk. I was ultimately a partner at Fish & Richardson in their patent litigation team in the DC office. Then for the last five years of my practice, I was senior in-house counsel at Apple out here in the Bay area where I moved to seven, eight years ago.

Rudhir: After 15 years of practice, I started to notice… What I started to see were cycles of behavior in the practice over 15 years, just ways that we all behave at work that I felt like were somewhat compromising to our practice. I started to notice that we accept that stress is a part, a natural part, of our work life. We wouldn’t get paid as lawyers at the rates that we charge, and we wouldn’t be able to do the work that we do if it wasn’t something that was challenging or stressful, so I totally understood that.

Rudhir: But there’s this interesting relationship where work caused stress, but then stress actually started to impact the quality of our relationships and ultimately the work product. It is this weird cycle where work causes stress but then stress impacts the work. I think everyone just accepted that as the norm, and I felt like this was a dialogue that we needed to have and a cycle in the system that we needed to improve.

Rudhir: It’s when I decided to leave the practice. Three years back I left the practice. I retrained first as a mindfulness instructor and yoga instructor. And not wanting lawyers on their yoga mats all the time, I ultimately trained as an executive coach. Now, I coach attorneys. I have a coaching business that’s Krishtel Coaching. I coach attorneys in their practice one on one, and we identify some of the most challenging aspects of your practice and try to move them out of the way so that attorneys have a more fulfilling practice. I also host workshops. I visit law firms and legal departments and host dialogue on ways that we can start shifting our culture, build a greater resilience, incorporate emotional intelligence and mindfulness practices. I also host online coaching programs and webinars on these topics.

Rudhir: The consulting and the coaching practice has evolved over the last many years. I’ve now coached over 100 attorneys, managing partners at law firms, general counsel at companies, a wide range of attorneys on really how they can be better for themselves and others in their practice and really trying to shift and improve our culture in the legal workplace.

Teresa: Rudhir, it sounds like you identified the need while you were in the boiling pan yourself and didn’t really see anyone meeting those needs. As you’ve worked now for a number of years with clients, especially at big law firms and at corporations in house, what have you seen as the return on it? It sounds like you also had a theory that if we start to apply this, it’s not only going to improve quality of life and wellness and balance, but will also impact work product. I would be interested in some antidotes from clients you’ve worked with so far.

Rudhir: Teresa, what you said first is what I want to tap into a little bit, which is what I did notice during my time at Apple. You make this switch from a partner in law firm to go in house, and we think about it as sort of this greener pasture switch, attorneys going in house. What I notice is I got more senior in the practice. With every level up, growing of the team, salary bump, promotion, whatever it was, every time the further I got up, the lonelier I felt.

Rudhir: It’s very interesting that here we are achieving this so-called dream, and yet I felt somewhat more isolated, and I’m a pretty social person. I’m the person at Fish that was head of recruiting for our office. I’m definitely the person that planned all of the March Madness pools and getting everybody back together outside of work. I’m that person. For me to feel somewhat isolated was really fascinating, to be naturally connected and connecting and yet feel lonely at the same time was a very odd experience.

Rudhir: But I felt it more and more as I got more senior. I started to realize, “Well, if I’m experiencing this, how many other people are experiencing this?” There’s this unique thing that happens in legal practices that we are shrouded in confidentiality and in adversity in this adversarial experience. There’s a lack of trust that we have oftentimes with our colleagues. The thing that’s most challenging for me at work, I’m not sure I’d be comfortable talking to my colleagues about, whether it be a difficulty with a technical issue or a difficulty with building business or a challenge with how I’m managing my team. Sometimes we’re not comfortable being necessarily open about that with our colleagues just because of the legal work environment.

Rudhir: I started to notice this, and I realized I’m so senior in this practice I wish I had my own set of advisors. I’m at this point where I’m generating enough revenue. I’m generating enough revenue for myself that small businesses generate. We’re in the hundreds of thousands now. Some lawyers are in the low seven figures in terms of their business generation and their income. Yet, I don’t know who my closest advisors necessarily are that I just deeply trust.

Teresa: Right.

Rudhir: I started realizing, “Well, if I’m having that issue, there must be other attorneys that are having this issue.” And it becomes even that much more compounded with intersectionality. Now we’re talking about women that might be having these challenges, attorneys of color that might be having these challenges, really everybody. When I started to notice this, I thought, “Here’s a space that I feel like we need someone to step into.” That’s the decision that I made. It’s very interesting. I work with a wide range of clients, and to sort of address your second question, the second part of your question, is it’s just been deeply valuable this work for the clients that I’ve worked with, and it shows up in many ways.

Rudhir: People don’t often think about connecting with… Well, let me say that differently, Teresa. When we have somebody in our corner that is willing to champion us, that is willing to hear us out, that is willing to co-strategize with us, that is sort of a peer in the practice and that has real confidentiality, so much is possible. I’ve sort of seen that with my clients. I’ve seen a lot of growth and evolution on people having much better relationships with their teams, managing their groups in healthier ways, finding ways to solve problems with some of the challenges they face in their teams, interacting with people in a healthier way, becoming that much more adapt at generating business and for people that are looking for some sort of a transition and feeling stuck really having place where they can start to dialogue and strategize and brainstorm on that, and we come up with just incredible directional shifts for people in their life and their business. This practice I feel like has been a huge benefit to the clients that I work with.

Teresa: You touched on something that was interesting to you a minute ago, Rudhir. You were talking about this feeling of isolation, social isolation. We’re talking today and it’s later in March 2020. Back on December 31, 2019, the World Health Organization first identified an epidemic in China. Today, we’re looking at shelter in place orders not only around the San Francisco Bay area but throughout that entire state possibly with more coming in other markets and many people now working in a brand new environment, work from home environment where those lines between family and work are blurred a little bit.

Teresa: Looking at the 2019 novel Coronavirus pandemic, this is unprecedented territory, with you and your work with clients, what are you seeing right now?

Rudhir: It’s very interesting because I tend to think that lawyers as I mentioned despite us working with each other and connecting tend to have somewhat more of a natural isolation and loneliness already. This is just me saying this. There have actually been studies. The ABA has put out studies. There are psychologists that have put out studies that identify and indicate that lawyers have less sort of a lower social tendency than others than most.

Rudhir: And so at a time when we’re now even doubling down on the isolation, I’ve seen a lot of challenge. I see lawyers that are expressing concerns over a lot of things. Here we have a group of people that are natural problem solvers, lawyers are natural problem solvers. We are always thinking ahead. As we think ahead, we’re thinking ahead to how long is this going to last. There’s an uncertainty.

Teresa: Right.

Rudhir: We’re thinking to how is this going to impact my business? For in-house attorneys the business that they’re in and corporation that they’re in, but for outside counsel attorneys, how is this affecting my business development and business generation? What does this mean for my income? What does this mean for my team? What might this mean for the health of my family and the people around me? What might this mean for others? There’s just a lot of concern layered on top of a business and a practice that already has us sort of in a position where we’re “constantly putting out fires.”

Rudhir: I think that what I’m seeing is a higher level of anxiety in some than what might usually be the case. I think when anxiety comes up, we are not at our best self. We are not behaving in a way that is sort of rooted in our best self. We’re being reactive. We are thinking about we’re in sort of a flight or fight mode. We’re thinking about ways that we can run and save things or we’re thinking about ways that we can sort of fix things right away. I think there’s a deep discomfort that’s happening in this moment.

Teresa: With the questions that you’re seeing from clients right now, I know you’ve set up a webinar right now. You’re providing some guidance to people who are looking for it. What can people do right now? With the sense of what do I have control over, there is so much certainty. What are you telling people right now?

Rudhir: Yeah. I set up a free webinar Wednesdays mornings at 9:00 a.m. Pacific, noon Eastern on mindfulness tools for managing uncertainty. I find that mindfulness practices, resilience practices, emotional intelligence practices are very much relevant in this time. I think that even just paying attention to the news has me at a slightly higher level of anxiety. I’m waking up a bit more tired than usual this week. It’s just very interesting. Not much has changed because we work from home my wife and I, and so for us to practice social distancing and kind of put a barrier around our house is actually not too different than what we’re usually doing.

Teresa: Right.

Rudhir: I’m slightly more on edge and slightly more tired. These practices of mindfulness and resilience and emotional intelligence, I think, are just really valuable in this moment. I’ve started to offer them out on a weekly webinar, just simple tools. For example, you asked what might be something that we can do. Lawyers, we tend to be very head heavy. I didn’t even understand what that meant a few years ago because I didn’t know what the difference was between that and anything else.

Rudhir: We tend to be thinking people. We’re valued for our knowledge. People want us for our advice, and we want to offer our advice. We’re problem solving. We always respect and value the attorney that “knows more.” So much of our work is in our head. Settling the body and settling ourselves in these times actually happens in the body. What percentage of our livelihood is our mind physically, and what percentage is our body? That’s an interesting question to ask. So much of us is our body. In fact, most, if not all of us, is our body.

Rudhir: One of the first tools that we talked about in this webinar was a body scan technique. A body scan is a meditation technique that allows us to just pay attention to what else is happening right now in our body. There’s just a lot of information there. Lawyers are great at gathering information. We’re incredible at intake. I think in this moment one of the tools is just actually take intake for yourself. We’re always asking someone else, “So what’s your problem? What happened? Who are the people involved?” Et cetera. The questions that I offer are, “What’s happening in my body right now? What’s happening in my breath? What am I noticing in my chest? Is it tighter? What am I noticing in my stomach? Am I at unease? Are my feet grounded? What happens? What’s the difference between grounding my feet versus sitting them elsewhere? What’s the quality of my breath? What’s my body temperature?”

Rudhir: I think when we scan our bodies… And on my website I have mindfulness audio recordings and guided meditations, and these are available all over the place. There’s apps like Calm and Insight Timer and Headspace. UCLA has an incredible meditation center, and they have some great guided meditations. I offer a few on my website at Krishtel.com. Basically, what we’re inviting people to do is actually just pay attention to what’s happening for them in a moment.

Rudhir: This isn’t something that we need to do all day. A body scan meditation can be 10 minutes of your day, five minutes of your day. Pay attention to your breath. Even right now is one of those podcasts, Teresa, if you just sort of take a breath and pay attention to what’s going on in your lungs and what’s going on in your throat and just breathe. You just notice sort of a different quality show up. We kind of exist in this on edge slightly underlying nervosa, and it’s normalized in our practice. I think we can in this moment because it’s even exacerbated, it’s slightly more acute because of all the information coming in and everything that’s changing, I think is an incredible time to pay attention to breath, pay attention to body and just what’s going on for us.

Teresa: That’s really helping in hearing you talk about almost an inventory of awareness. Rudhir, for those, wellness has been a buzzword that’s been around and gaining increasing traction and attention in recent years. Can you break down mindfulness for those that may not be familiar with that term and just help us understand when we say mindfulness, when you say mindfulness, what do you mean?

Rudhir: I’d love to. I’d start by actually just saying that when I started regularly meditating, it was the beginning of an incredible shift in my life both professionally and personally. It’s for those who are exploring meditation and dabbling, the commitment to a practice of 20 minutes a day, 20 minutes twice a day or even 10 minutes a day of mindfulness practices I think can be the beginning of a huge evolution and even revolution in your life in terms of how you feel and just fulfillment.

Rudhir: When I was at Apple about a year or two in, I started a daily practice of 20 minutes twice a day of meditating. I’ll tell you a little bit more about what is mindfulness and different ways of practicing. Just to kind of get people in tune with the benefits, I started practicing, and so much changing. Three months of regular practice, I committed to 20 minutes twice a day, and I did it because actually I paid for a class. When you pay for a class for some reason, it’s just like a gym membership. Something happens, and you’re like, “All right, I’m paying the money. I’m going to make a commitment.”

Rudhir: I make the commitment of 20 minutes twice a day. I’m a coffee drinker. It’s not the morning coffee. It’s the 2:00 p.m. coffee for all my friends at Fish and Apple. At 2:00 p.m. it was clockwork. I’d come around the halls and say, “All right, let’s just go get coffee.” I noticed after two or three months of practicing… It’s not like it has an alarm set, it’s just at that time of the day you start feeling a little bit tired. My morning energy is I’m ready to go. Around 2:00 p.m. it starts to wither.

Rudhir: I started to notice three weeks had gone by and I hadn’t asked anyone for coffee. I’m an engineer by trade. Trained as an electrical engineer, studied, became an IP attorney, so I need a logical underpinning for a mental practice. At least I did at that time. I don’t anymore. I’m all in now. But back then I sort of needed some evidence. The evidence was just clear. I have so much more energy that I don’t need coffee. I don’t drink coffee from 7:00 a.m. until midnight, and I’m just fully functioning.

Rudhir: I couldn’t believe the shift that happened for me in that moment that I was getting a physical benefit to a mental practice. That’s when I decided I was all in. I started to have healthier interactions professionally. I started to notice that things were slowing down. People talk about time is going by fast. That’s not a thing for me anymore. Time actually does not go by fast. I started to worry less about all the things that were coming and about what was happening. I just started to feel more present.

Rudhir: There’s so much energy there. The energy is because… And this is for the people that are just looking for the logic. If your mind is moving less, and it’s sort of moving at a less rapid pace, it’s triggering less emotions. If you think about when you pay attention to what your thoughts are in a two minute period, “What am I going to eat for lunch?” It’s the basic thoughts. “What am I doing this week? What’s my schedule? What am I going to eat for lunch? What’s for dinner? What’s happening with that meeting?”

Rudhir: Each of those thoughts… And you notice in a two minute period they just keep spinning. Each of those thoughts may trigger and may bring out an emotion. When emotions come up in our body that is a moment where your energy starts to get drained because an emotion can trigger you to hunch your shoulders, and you don’t even realize. It may start reducing… slowing down your breath. You don’t even know. When that email comes in from that challenging client or from that colleague, you sort of hold your breath.

Rudhir: Those little moments add up in the course of the day. In our jobs you can work from 8:00 a.m. until midnight, not leave your desk, and feel like you ran a marathon that day. Mindfulness and meditation practices start to slow that down. They start to slow down the rapidity of the thoughts. They start to readjust how reactive you are to these things. They relax your body in these moments when you might naturally be tense or stressed. You’re gaining back 5% to 10% energy.

Rudhir: There’s this book Ten Percent Happier. I relate to almost everything that’s in that book because you really are. Ten percent more energy in this moment can be huge. How much more energy do you have at the end of the day for your colleagues, your clients, your family? You just have so much more energy. Just 10% can make such a difference. You were asking about what is mindfulness, but before I go into that, I’m curious if any questions are coming up for you based on what I’m saying?

Teresa: Well, I’m just anticipating questions. I think seeing the email come in or thinking about the email, it’s not saying that email is not important or that client’s need isn’t important, it’s putting it into a place where we’re not maybe as reactive to it, where it’s kind of processed in a way that is a little more centered. Right?

Rudhir: Yeah. This is a great dovetail into what is mindfulness because I think there’s a lot there. When I think about mindfulness you’ll see a range of definitions. But I consider if we’re paying attention to ourselves, our thoughts, our emotions and our body, and noticing what’s happening with those things, without judgment. And the without judgment piece is actually really important because oftentimes what’s happening for us we might think is wrong or something’s not great about it or amazing about it. Mindfulness is actually just let’s just pay attention to what’s happening.

Rudhir: I talked about this body scan technique as sort of one way which is paying attention to what’s happening with your feet and your legs and your stomach and your lungs and your shoulders. When that email comes in as an example. We all know that email, that alert, that case alert. That colleague, that person we don’t like, all of it. It happens at least 10 times a day. Ten times a day, 20 times a day, 100 times a day you tense up when that message comes in, and just sort of noticing what’s happening in your body in that moment rather than necessarily solving the email. Because our first reaction is what am I going to say? You might notice the quality of your breath in that moment that you’re actually not breathing. It’s fascinating just taking a deep breath in that moment rather than reacting right away and just noticing what happens to your body that it settles.

Rudhir: Noticing what happens to your shoulders, they tighten up, that you sort of take a forward learning approach, that you might get uneasy in your stomach. All these things are happening. As we pay attention to that, when we’re responding to that email from that place, it’s actually fight or flight. We’re responding from a place of fight or flight. Fight or flight is sort of an old… It’s an old system. It comes from an old brain of ours. It’s the amygdala. It’s an old brain. It’s a lizard brain that we have. It basically really comes from this era and this time of evolutionarily when we were sort of fighting bears and lions. You’re sort of out in the wild and you’re worried about fight or flight. Either I attack this thing that’s in front of me or I’ve got to leave.

Teresa: Base survival.

Rudhir: It’s survival. Yeah. By and large in our legal office, outside of that scary partner in the corner, there’s no bears around. There’s no tigers. For us to be experiencing fight or flight as much as we do in the course of our day is really a ratio that it happens versus the actual need is way out of proportion. The other thing is that creativity, centeredness, true leadership, aren’t happening when we’re in fight or flight. We’re not coming from a collected and a gathered place. We’re coming from a reactive place.

Rudhir: When we write a brief in a case, we don’t write a react, we write a response. I use these two words differently. There’s reacting, and there’s responding. I think responding comes from a place when we gather data and information, we use our wise lawyer selves, we are using wisdom, and we are responding in a gathered and a collected way. We’re reviewing. We’re able to come back to people from a centered place. That’s what we want in our briefing. That’s what we want in our responses to our colleagues, in our communications. We end up feeling in a reactive place, and so it’s fight or flight. It’s like, “If they say something, I can defend myself,” or “I’m going to avoid this email for a few hours because I’m nervous about what’s going to happen.”

Rudhir: So all these things come up. But when we take a breath we notice what’s happening in our shoulders, we notice what’s happening in ourselves, we notice the thinking and the nervousness that might be happening in our head. Maybe we can respond in a healthier way. Maybe we can slow down some of that movement and gain some energy back.

Teresa: Interesting using the word creativity. We’re in a transformative moment. Whether it’s a temporary transformation or whether we’re going to see lasting effects. We have the White House signing the Defense Production Act. Many people working from home. I’m sure for many there’s a lot of scary elements to what we’re seeing with the public health crisis around COVID-19. You and I we’ve had some earlier conversations about possibilities out there, but what do you see, Rudhir, right now as possible in this moment?

Rudhir: We have to be very thoughtful about many people whose health is being compromised in this moment, and we have to really be thoughtful about many people whose lives have shifted and are challenged by access to resources and hourly workers and wage workers whose jobs are being eliminated in the short term. There’s a lot of challenge and compromise that’s happening at this moment. We want to make sure that we keep our awareness on that.

Teresa: Right.

Rudhir: I actually feel like interestingly enough a lot is possible in this moment. I think there are new ways that we’ll be able to connect with people and we’ll be testing out. For example, this webinar that I’m doing or the greater number of video calls and group calls that I’m having online where people are finding healthier ways to interact. I actually think it’s an incredible time to call that colleague or that contact that you haven’t been in touch with for a while and just say, “Hey, how are you doing?” And just get on the phone or get on a video call and just listen and be with somebody and connect in a way that you might not have otherwise.

Rudhir: I do feel like people might have a little bit more time now, and if you think it’s a time where, for example, business development dies down, I think actually it’s the exact opposite. People are looking to connect in this moment, so fill that void. Finding new ways to connect right now, to reach out, to interact, to connect with your families and yourselves, I think that’s huge in this moment.

Rudhir: I think time alone can be an incredible time for coming up with new solutions and to be creative. I think about Isaac Newton came up with some of his most valuable theories, the roots of calculus, and the basic understandings that we have on gravity, some of the most critical theories that he came up with were during the Plague when he had to leave Cambridge and isolate during that moment.

Rudhir: Social distancing, this isn’t the first era of social distancing. This has been going on with every pandemic that we’ve experienced in the history of time. Even in that moment he came up with some of the most valuable scientific principles and mathematic principles that we lean on today. There’s this huge opportunity in this moment to be creative, to think about what’s possible.

Rudhir: And as lawyers we are in this service industry, and so there’s this incredible opportunity to think about what are the new ways and the different ways in which we can serve others and add value? When we are reactive and in fight or flight, we aren’t thinking from that place. We’re wondering how to protect ourselves or wondering how… what’s going to happen to us. But when we start slowing down and rooting in, we remember that there’s so much possible in this moment for all of us, so many systems that we can build to serve our clients and to support our colleagues.

Rudhir: I’m going to be offering team building webinars in the next few weeks. Here’s an opportunity. Your entire team is isolated. How do we stay connected in this moment? So maybe we jump on an hour and a half Zoom call, and we actually do a team building exercise, facilitated exercise, in this moment. For me, I just feel like so much is possible, and it’s time to really start thinking about creative ways that we can connect with others, which we all need as humans and in our professions, and so what are the ways that we can do that now?

Teresa: That’s really interesting. We’ve been hearing talk about… We’ve all been hearing the guidelines around social distancing, but moving to the term physical distancing to recognize that we need… We still as humans we still need a little bit of that connectivity that you’re talking about. Interesting. Rudhir, some of the resources we’ve been monitoring and sharing with our clients have been resources you have been sharing with broader audiences. Can you talk to us about what’s out there right now? What resources are there? You’ve really been pouring a lot of your focus to provide some guidance and help right now in the recent days and weeks. What’s out there right now? What are you working on, and what could you suggest as resources for people?
Rudhir: Well, we mentioned it once already, but I’m doing this weekly webinar on mindfulness tools for handling uncertainty, and I’m doing this every Wednesday morning through my relationship on the co-chair of the wellness committee for the National Asian Pacific American Bar Association. We’re doing a similar webinar on Thursdays every week right now, myself and a mentor of mine, Angela O., are doing this webinar every week for that community.
Rudhir: I’m talking with the Association of Corporate Counsel on putting out a webinar on what tools we can use to manage the challenge. There’s a couple of bar associations that I’m working with on how we can exhibit our leadership in this moment. How can we show leadership in this moment of challenge and difficulty? From my perspective, there’s a lot of offering that’s happening in this moment, and I think what’s really beautiful and really nice about the community is actually seeing all the things that are being offered up in this moment and ways that we can support each other.

Rudhir: I think it’s a great time to pay attention and listen and get online and see what’s being offered by others. There’s a lot of opportunities to interact in workshops and dialogues and ways to connect from home right now that I think people should be tapping into. I think it’s also just a time to connect for people that have the luxury of doing that with family in their home or even with nature. There’s no restriction on necessarily going out in some areas and actually just taking a walk and connecting in that way.

Rudhir: I do workshops on building resilience. Part of those dialogues we talk about, “What’s restorative for you?” What’s restorative for you? The answers that people typically come up with are things that are just very accessible to us even in this moment, which is time with my family and my friends, connecting with my pets, eating a really good meal, watching a good show, taking a walk in nature. All of these things people find restorative are by and large free and still very accessible to us in this moment.

Rudhir: This might just be a nice healthy hibernating moment for all of us. I think that another thing is this is actually a great opportunity for skills building. I work with a range of clients. For some of them, presentations and stand up are something that they like working on. There’s nothing stopping people from being at home and recording a presentation and seeing how they are. When we start thinking about what’s possible in this moment, I feel like there is so much opportunity.

Teresa: One of the other areas, we were discussing earlier, Rudhir, related to the new work at home scenario. Looking at the normal heavy workload that an attorney deals with, at least having that separation between work and home, without being blurred now, which not the case for you necessarily. You’re accustomed to it. What guidance are you providing right now for how to handle that new blurred line and how to handle what is really a novel situation for many professionals and especially for attorneys?

Rudhir: I think that it’s very interesting seeing this transition that people are making to being at home. Luckily, I’ve been working at home for a few years now, and so this transition wasn’t so difficult. I definitely feel like there are things that we can do to make this that much more comfortable. First, I think for people that don’t work from home a lot, it’s actually setting up a comfortable situation for sitting.

Rudhir: Some people might think this is the time to just work at the dining table or in that uncomfortable chair, but we might be here for a while. Maybe it’s time to get a nicer chair, a nicer desk at home. Maybe it’s time to invest in that, a standup desk or something, a chair that’s got good support for you. So actually just sit in a place that’s comfortable and not necessarily in the thing that you might default to when you do a little bit of work from home.

Rudhir: Second, I think that things that are really helpful are really when we’re working from home the boundaries really start to fade between work and home literally. There’s really no boundary anymore. You might have this urge to almost work all the time. There’s really no limit to it. I think there’s this mentality around clocking in and clocking out that I think can be a really welcome shift in this moment.
Rudhir: If you’re putting in certain hours, actually when does the pen go down? When does the laptop get shut? What are the few hours during the day where you’re actually just doing the thing that you need to do to take care of yourself or center? For some people, they’re not commuting anymore. They use that commute time as the period to transition from work to home. Create that transition period for yourself. Sit for five or ten minutes and do nothing and allow the mind to settle and shift. Let’s not just use all of our time now or fill all of that time with work because doing that along with all the information that’s coming in and the way that the world is changing can really start draining you further.

Rudhir: I think healthy boundaries with work right now are imperative and actually maybe just creating some mental shifts. When I go down to the living room, when I’m in my next room, that’s when I put the laptop… The laptop stays in this area of the house. I don’t let it carry everywhere. Just trying to think about physical and mental barriers that you can start to create between work and home even when you’re in one place so that it’s not all bleeding together. We work effectively when we are restored. We need to reenergize. So think about the things that reenergize you and try to build in systems at home that allow you to keep that energy.

Teresa: That’s helpful. Rudhir, you mentioned one mentor a few minutes ago in our conversation. Can you talk to me about any mentors that you’ve had throughout your career who’ve especially shaped your thinking, shaped your own career?

Rudhir: There’s so many. It’s a difficult question. I remember when you emailed me in advance about some of the things you might ask, I said let’s do this at the end. I was hoping it wouldn’t even get to these. I have so many mentors. There’s so many people that have been valuable. In the work that I do I always feel like I stand on the shoulders of so many people that came before, and so there’s just so many experiences that I have that are learning.

Rudhir: I think the place to start is that I just feel like every opportunity and every interaction is a moment of learning. I feel like I’m learning from people all the time. Mentors is a really higher elevated state for somebody I feel to hold that space. I learned so much from my clients. I learned so much on calls like this. I learned so much from every interaction. I think the first thing that comes to me is actually just not losing sight of the learning opportunities in every interaction. What can you learn about this person across from you and the rich experience that they have? What value might you be able to get in that possibility of that conversation?

Rudhir: The person that made this entire next chapter of my life that much more possible for me was my wife. When I was in my last few years at Apple, I started to feel this itch, and it was… I’m not sure, but I can’t say that I’m as happy as I’d like to be in my life professionally. I think there’s something else. I don’t know exactly what I want to do. I’d sort of come home every few days with this dialogue with her.

Rudhir: I’d sort of talk about different things that I want to do. I’d tell her, I’d say, “You know, I think I need a month or two off. I need a month or two off. I’m going to ask my manager and team if I can combine my four weeks of vacation with one other month off. It could be unpaid. I don’t care. I just need a couple of months to sit.” She said, “You don’t need two months. You need a year.”

Rudhir: I just thought, ” A year?” Apple doesn’t have a year long sabbatical program. How are we going to do that? She said, “I’m giving you a year.” She said, “For one year you don’t need to do a thing. You don’t have to generate any income. You don’t have to do anything around the house. You don’t have to do anything for a year, and whatever you do after that I don’t care. But for one year just take a break.”

Rudhir: I have never had that kind of permission before or just being met by somebody that was saying, “Look, you’re good as you are. You don’t need to do anything.” I think that that’s amazing. I just felt like to get that type of support from somebody… My wife runs a nonprofit. My mind was, “How are we going to manage the finances and everything?” She’s like, “We’ll budget. We’ll plan the way that organizations plan when they go through a transition.”

Rudhir: So we made the plan. As soon as the plan came into place, and I saw that it was possible, everything that was happening was leading to signs of leaving and taking this time off. I think she has a way of thinking and a being that’s very different from what I’m used to in my environment. It’s very refreshing. She really values people taking the time to restore because we don’t know what’s possible. She’s really at the sort of root of this transition, which is allowing me the time and space to think and see some of the challenges in our workplace.

Rudhir: What I did during that time off is I just wrote a lot and investigated and understood a lot about our work, and that’s what allowed me to see this opportunity for stepping into this whole new career path for me. When I think about people that I look up to or I look to, I think about right now in this moment of my life I think about my wife first.

Teresa: Rudhir, that’s really wonderful to hear you say it, and I appreciate you sharing too on such a personal level that story.

Rudhir: Well, I just want to offer that in this moment I feel like we’re experiencing challenging times. I feel like we’re part of an amazing profession that can actually offer a lot. If anyone could use any support or has any questions, please feel free to reach out. My website is Krishtel.com. My email is simple. It’s my first name Rudhir@Krishtel.com, and I’m sure you’ll be providing it, Teresa.

Rudhir: But feel free to reach out in this moment because I just feel like it’s an incredible opportunity for making sure that all of us are feeling good in a way that allows us to support our community in the way that lawyers do. We are very important center, I feel like fabric, of the world. I feel like we are really the center of a lot of leadership in the world. I feel like we’re in this position to offer a lot, and for anyone that needs support through that process I just welcome people to reach out and connect.

Teresa: Thank you, Rudhir. It’s been really wonderful speaking with you learning more about what you’ve been doing. We’ve enjoyed seeing it and really are happy to be able to share it with our audience too. We will be in touch for sure. We’ll definitely have your resources available on the podcast.

Rudhir: All right. Fantastic. Thank you, Teresa. Talk soon.

Teresa: Thanks, Rudhir. You too. Bye-bye.

Rudhir: Bye.

 

 


© Copyright 2002-2020 IMS ExpertServices, All Rights Reserved.

OSHA Issues New COVID-19 Alert to Restaurants & Beverage Vendors

On May 1, the Occupational Safety and Health Administration (OSHA) issued a new safety alert for restaurant and food and beverage businesses operating during the pandemic. In the alert, OSHA suggests that restaurants providing curbside and takeout service should reserve parking spaces near the front door for pickup, avoid handing food off directly when possible, and allow workers to wear masks.

OSHA also urged businesses to display signs detailing their services such as pickup instructions and hours; take “sensible social distancing” measures such as moving workstations or installing plexiglass partitions; provide alcohol-based hand rubs and a place to wash hands; train workers in proper hygiene practices and the use of workplace controls; and encourage workers to report safety and health concerns.

This alert is the latest in a series of industry-specific documents OSHA has issued offering recommendations on ways to protect workers and patrons during the COVID-19 pandemic.

The agency has made the tips available in a one-page poster employers can display in the workplace.


© 2020 Jones Walker LLP

For more reopening regulations, see the National Law Review Coronavirus News section.

COVID-19: CMS Issues Second Round of Groundbreaking Changes for Telehealth – What You Need to Know

The Centers for Medicare and Medicaid Services (CMS) has introduced a new crop of temporary regulatory flexibilities in response to the COVID-19 public health emergency (PHE) in the form of new blanket waivers, implementing guidance related to provisions of the Coronavirus Aid, Relief, and Economic Support Act (CARES Act) regarding rural health clinics (RHCs) and federally qualified health centers (FQHCs), as well as a new interim final rule (April IFC). This flurry of new guidance comes exactly one month after CMS published an interim final rule on March 30 (March IFC). The new guidance sets forth a historic expansion of telehealth services by fully expanding the list of permissible telehealth providers, significantly broadening the availably of audio-only telehealth services for Medicare beneficiaries, among other significant telehealth expansions. The new blanket waivers and the April IFC (except as otherwise specifically designated) are retroactively effective as of March 1, 2020.

This article discusses the telehealth waivers and flexibilities in this most recent guidance from CMS aimed at making health care available to Medicare beneficiaries in a manner that keeps both providers and patients safe during the PHE.

Expanded List of Eligible Telehealth Practitioners

A long awaited change is here! Now, for the duration of the COVID-19 PHE, physical therapists, occupational therapists, and speech language pathologists, along with all others eligible to bill Medicare for professional services, may furnish distant site Medicare telehealth services. Prior to this blanket waiver, only physicians, nurse practitioners, physician assistants, and other specified providers could deliver Medicare covered telehealth services. The new blanket waiver removes these restrictions. However, practitioners must still adhere to applicable state law practice and licensure requirements when performing telehealth services.

Audio-Only Telehealth Elevated

In the March IFC, CMS established separate payment for audio-only telephone E/M services, specifically including CPT codes 99441, 99442, and 99443. In response to stakeholder feedback that the use of these codes is more widespread than CMS expected—as well as CMS’s realization that the audio-only visits are appropriate for a higher intensity of service than initially anticipated—CMS is:

  1. waiving the required use of video technology, and is allowing the use of audio-only equipment to furnish services described by the codes for audio-only telephone evaluation and management services (E/M), and behavioral health counseling and educational services (the list of the designated audio-only codes can be found here); and
  2. increasing reimbursement for CPT codes 99441, 99442, and 99443 to more closely align with reimbursement for similar office visits.

Codes that may be billed without satisfying the interactive video requirement will have a notation in the telehealth code list indicating that audio-only is appropriate. The ability to receive these increased payment rates is retroactive to March 1, 2020. Also, while the code descriptors refer to an “established patient,” CMS is exercising its enforcement discretion during the PHE to relax the requirement that the audio-only services be limited to established patients. CMS reminds practitioners that the cost-sharing obligations are still applicable to these telehealth services in cases where the practitioner is not appropriately waiving the cost-sharing obligations.

Opioid Treatment Programs (OTPs) May Furnish Periodic Assessments via Telephone

Pursuant to the April IFC, during the PHE CMS is allowing OTP periodic assessments to be furnished via two-way interactive audio-video communication technology and, in cases where beneficiaries do not have access to two-way audio-video communications technology, the periodic assessments may be furnished using audio-only telephone calls, provided all other applicable requirements are met. CMS expects that OTPs will use clinical judgment to determine whether they can adequately perform the periodic assessment with audio-only phone calls, and if not, then they should perform the assessment using two-way interactive audio-video communication technology or in person as clinically appropriate. Regardless of the format that is used, the OTP should document in the medical record the reason for the assessment and the substance of the assessment.

Medicare Coverage of RHCs and FQHCs Provided Telehealth

Previously, RHCs and FQHCs were not able to be paid by Medicare for telehealth services as a distant site. However, as required by the CARES Act, Medicare will now cover and reimburse telehealth services provided by RHCs and FQHCs from January 27, 2020 through the duration of the PHE. The key flexibilities afforded to RHCs and FQHCs include:

  1. Any telehealth service listed in the Medicare telehealth code list may be provided by the RHC/FQHC practitioners and the RHC/FQHC must use HCPCS code G2025 to identify the services being provided via telehealth;
  2. Effective March 6, 2020, patients may be at any site, including their home;
  3. The services can be furnished by any health care practitioner working for the RHC or FQHC within their scope of practice; and
  4. The practitioners can furnish the telehealth services from any distant site location, including their homes, during the time they are working for the RHC or FQHC.

CMS released detailed guidance on (a) claims submission requirements for RHCs/FQHCs; (b) how CMS will go about reprocessing and paying claims; (c) the timing of processing; (d) special billing rules and requirements related to cost-sharing waivers; and, (e) other important information that RHCs and FQHCs should review in advance of billing for any telehealth services. CMS set a payment rate for these claims at $92.03 (average amount of all telehealth services on the telehealth service list, weighted by volume), which will be reassessed if the PHE extends beyond the end of the year. CMS hopes these changes will increase access to care for beneficiaries in rural and underserved areas.

Hospital Billing and Facility Fee Reimbursement for Outpatient and Home Settings

Now hospitals may bill for telehealth services furnished by hospital-based physicians to patients registered as hospital outpatients, including when patients are at home, provided the home is serving as a temporary provider-based department of the hospital. CMS stated that the March IFC did not specifically address billing for hospital outpatients. CMS also reminded providers that reasons for the visit must be documented in the patient’s medical record. As such, hospitals can bill for both the distant site provider fee and the originating site facility fee for telehealth services rendered by hospital-based practitioners, even for patients at home.

New Telehealth Code Approval Procedure

Ordinarily CMS adds codes to the telehealth code list as part of its annual rule making. CMS is now changing its process to allow for the addition of new telehealth codes to the designated Medicare telehealth code list on a sub-regulatory basis, without the need for notice and comment. This will allow for faster and perhaps more frequent additions to the telehealth codes list and scope of Medicare telehealth benefit. However, any codes added to the list during this time period will remain on the list only during the COVID-19 PHE.

Time-Based Level Selection for E/M Telehealth

In the March IFC, CMS allowed for the E/M level selection for office/outpatient E/M services furnished via telehealth can be based on medical decision-making or time for the duration of the PHE. In doing so, CMS referenced typical times associated with E/M services in the Medicare public use file. However, the times in the public use file do not always align with the typical times included in the office/outpatient E/M code descriptors, causing confusion in the physician community. CMS resolved this confusion in the April IFC by revising its policy to clarify that the times listed in the CPT code descriptor should be used.

Loosened Remote Physiological Monitoring (RPM) Billing Requirements

Historically, RPM service described by CPT code 99454 could not be reported for monitoring of fewer than 16 days during a 30-day period. However, in the April IFC, acknowledging that many patients with COVID-19 who need remote patient monitoring do not need to be monitored for a full 16 days, CMS, for the duration of the PHE, is allowing RPM services to be reported for periods of time that are fewer than 16 days of 30 days, but no less than 2 days, as long as the other requirements for billing the code are met. CMS emphasized that payment for when monitoring lasts for fewer than 16 days of 30 days, but no less than 2 days, is limited to patients who have a suspected or confirmed diagnosis of COVID-19.

Inclusion of Telehealth and Virtual Care in ACO Primary Care Services

For the duration of the COVID 19 PHE, for purposes of the Medicare Shared Savings Program, CMS is revising the definition of primary care services used in the program’s assignment methodology, for performance year starting on January 1, 2020, to include remote evaluation of patient video/images, virtual check-ins, e-visits, telephone evaluation and management services and telehealth.

What’s Next?

The breadth of these changes and speed at which they have been made undoubtedly illustrates CMS’s view of telehealth as a key tool in addressing the COVID-19 PHE. The question that remains is which of these changes will have staying power beyond the PHE and will industry supporters finally have their day when telehealth is simply an equal choice or option among others in health care delivery.

For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the websites of the CDC and the World Health Organization.

Foley has created a multi-disciplinary and multi-jurisdictional team to respond to COVID 19, which has prepared a wealth of topical client resources. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time.

© 2020 Foley & Lardner LLP

Best Practices for Commercial Property Owners/ Operators: Phase One of Reopening the Economy

The Federal Coronavirus Task Force issued a three-stage plan last week to reopen the economy, where authorities in each state – not the federal government – will decide when it is safe to reopen shops, schools, restaurants, movie theaters, sporting arenas and other facilities that were closed to minimize community spread of the deadly virus. Once phase one is adopted in certain states, businesses that reopen will need to be prepared to take certain precautions to meet their common law duty to provide and maintain reasonably safe premises.

Phase One

The first stage of the plan will affect certain segments of society and businesses differently. For example, schools and organized youth activities that are currently closed, such as day care, should remain closed. The guidance also says that bars should remain closed. However, larger venues such as movie theaters, churches, ballparks and arenas may open and operate but under strict distancing protocols. If possible, employers should follow recommendations from the federal guidance to have workers return to their jobs in phases.

Also, under phase one vulnerable individuals such as older people and those with underlying health conditions should continue to shelter in place. Individuals who do go out should avoid socializing in groups of more than 10 people in places that don’t provide for appropriate physical distancing. Trade shows and receptions, for example, are the types of events that should be avoided. Unnecessary travel also should be avoided.

Assuming the infection rate continues to drop, then the second phase will see schools, day care centers and bars reopening; crowds of up to 50 permitted; and vacation travel resuming. The final stage would permit the elderly and immunologically compromised to participate in social settings. There is no timeline prescribed, however, for any of these phases.

Precautionary Basics

Once businesses are reopened during phase one, there are several common sense and intuitive safety practices that business owners/operators must absolutely ensure are in place to meet their common law duty to provide a reasonably safe environment for those present on their premises.

The guidelines issued by the CDC are the core protocols that form the baseline for minimal safety precautions: persistent hand washing, use of masks/gloves and strict social distancing.

Additional Measures

Given the highly infectious nature of the virus, the fact that it is capable of being transmitted by asymptomatic people who are nonetheless infected, and the apparent viability of transmission through recirculated air or via HVAC systems without negative pressure (per a recent report from China about transmission from one restaurant customer to several others via the air circulation system), there is nothing that reasonably can be adopted that will effectively and readily ensure that a business is completely free of someone who is infected and capable of spreading the virus.

As such, additional measures are advisable beyond the CDC protocols, such as robust cleaning/hygienic regimens/complimentary wipes and hand sanitizer for common areas, buttons and handles; and the necessary protections for employees who interact with the public (e.g., shielding and protective gear for checkout clerks at the supermarket or lobby desk/check-in personnel in hotels and office buildings). In addition, it would not be unreasonable or unduly intrusive to check the temperatures (via no-touch infrared devices) of those entering the premises. In the absence of available portable, instant and unobtrusive virus testing methods, temperature readings are the most practical and reasonable precautionary measure beyond the CDC baseline deterrents.

Conscientious and infallible implementation of maintenance, housekeeping and hygiene protocols for the commercial, hospitality, retail and restaurant industries also will be critical to mitigate potential liability claims for negligently failing to provide an environment reasonably safe from the spread of coronavirus.

Advisability of Warnings

Aside from conspicuously publicizing – via posted signage or announcements – the CDC guidelines relating to persistent hand washing, use of masks/gloves and strict social distancing, the need to warn of the potential for – or a history of – infections generally is not considered to be necessary or essential unless there is an imminent threat of a specific foreseeable harm.

Unless there is a specific condition leading to a cluster of infections within a particular property (unlikely given the ubiquity of the disease and community spread, but the reporting would be to the CDC or local health authorities in such an instance), or an isolated circumstance that can be identified to be the source of likely infections to others who proximately were exposed, there is no need or obligation under existing law or regulatory guidelines to report generally that someone who tested positive for the virus may have been on a particular property.

Moreover, unless the business is an employer who administers a self-funded health plan (who are thus charged with the duty to maintain “protected health information”), businesses that are not health providers are not subject to HIPAA; as such, concerns about HIPAA violations are misplaced to the extent that the identity of someone who is infected is somehow disclosed or otherwise required to be disseminated by a business not otherwise charged with the duty to maintain “protected health information.”

A Coordinated Approach

While the CDC’s guidelines are important, they are not exclusive. Businesses planning to reopen also should consider regulations and guidelines from a number of other sources, including OSHA and state and local departments of public health.


© 2020 Wilson Elser

For more on reopening the economy, see the National Law Review Coronavirus News section.

Northeast State Solar Programs in Light of COVID-19

COVID-19 is impacting industries across the globe and clean energy is no exception. As the pandemic continues to influence economic relief efforts at both the state and federal level, states are beginning to offer specific forms of relief through their incentive programs.

Additionally, electric distribution companies in each state have declared COVID-19 a force majeure event, allowing extensions to interconnection milestones and in some cases payment schedules. Below are summaries of the specific relief efforts being offered by some states, and more details regarding electric distribution companies’ declaration of a force majeure event.

Massachusetts

The Massachusetts Department of Energy Resources (“DOER”) filed emergency regulations with the Secretary of State following its regulatory 400MW review of the Solar Massachusetts Renewable Target (“SMART”) Program on April 14, 2020. Among the regulations is a blanket extension of six months to all Solar Tariff Generation Units, including any projects that submit their applications before July 1, 2020, due to the ongoing impacts of COVID-19. More details are provided in the DOER’s Statement of Qualification Guideline.

The Massachusetts Department of Public Utilities has also developed a webpage with information and resources specific to COVID-19. The website includes information on the impacts of the electric distribution companies’ respective declarations of COVID-19 as a force majeure event.

New York

The New York State Energy and Environment agencies wrote a letter to the clean energy industry on April 1, 2020, expressing support for the clean energy industry, particularly as construction has been impacted by COVID-19. The agencies announced in the letter that they are seeking input from clean energy industry stakeholders so that the agencies and the industry can work together to form creative solutions. The letter is found on NYSERDA’s COVID-19 page.

Connecticut

In Connecticut, the Department of Energy and Environmental Protection (“DEEP”) is coordinating with governmental offices and stakeholders to offer webinars for clean energy contractors with information about available state and federal aid. Please check in with CT DEEP to find out more information on these offerings.

Maine

The Governor’s Energy Office (GEO) released a statement that the GEO is working with the Maine Public Utilities Commission (PUC) and clean energy stakeholders to answer questions and concerns that are related to COVID-19. Stakeholders that have questions and concerns should contact the GEO for further information.

Electric Distribution Companies’ Force Majeure Declaration

Several electric distribution companies have notified state’s public utilities commissions that COVID-19 is a force majeure event. By declaring a force majeure event, the electric distribution companies have allowed extensions to project milestone dates and in some cases interconnection payments. Electric distribution companies that have not formally declared COVID-19 a force majeure event have waived late fees and extended payment timelines. Individual projects should check in with the electric distribution company specific to the project to confirm how theirs may be impacted.


 

 

© 2020 SHERIN AND LODGEN LLP
ARTICLE BY Tanya M. Larrabee at Sherin and Lodgen LLP, Amy L. Hahn also contributed.
For more on renewable energy programs, see the National Law Review Environmental, Energy & Resources law section.

The Return of Balance and Proportionality

Oscar Wilde was known for saying “Everything in moderation, including moderation.” For a period of time, we were only confronted with the scary aspects of “Big Data.” Think The Great Hack and the testy congressional hearings that we watched.

But the viral pandemic has thrown privacy absolutism into deeper question, as we are suddenly faced with a problem that in order to be solved must involve finding and tracking people for extended periods of time. We need to decide how to balance the societal need for virus control with the societal good of personal privacy.

Contact tracing is often used as an epidemic control measure. Lawmakers have discussed using the tool in the U.S. as Apple and Google work together to develop an effective contract tracing system. It has been deployed against illnesses such as measles, SARs, typhoid, meningococcal disease, and Ebola. It is currently being implemented in South Korea and China to combat COVID-19.

The Israeli government approved tracking cell phone data of people suspected of having coronavirus, to make sure they self-isolated. This emergency power lasted for 30 days. Israel’s Supreme Court, concerned with the privacy implications of using a military technology to track its own citizens’ daily movements, decided that the government would be required to halt this surveillance technology until or unless the government can pass an extension of that use. Then an oversight group in Israel’s parliament blocked an attempt to extend the emergency measures beyond this week, also due to privacy concerns. A committee member said the harm done to privacy outweighed the benefits.

As I recently wrote, this crisis may be testing sensibilities about privacy. Perhaps I was wrong. Sentiments do not seem to be moving aggressively towards greater data collection, or a sacrifice of consumer rights. Instead there appears to be a return towards measuring the weight of data against the potential for abuse, or grand commodification of personal information. In Israel more than 200 people, some identified through phone location information, had been arrested for violating quarantine. Thirty days of these extreme measures were tolerable. Then the Israelis had second thoughts.

Ulrich Kelber, Germany’s federal data protection commissioner, who recently claimed that the lack of GDPR enforcement was a result of enforcement agencies not receiving enough resources, backed a plan for Germany’s disease prevention agency to use Deutsche Telekom metadata. Considering just a week earlier he deemed tracking individual smartphones to monitor quarantine “totally inappropriate and encroaching measure,” it is apparent that Germany is balancing the harsh reality of the crisis and the immediate need for certain information with this encroachment.

Canada’s Privacy Commissioner released a “Framework for the Government of Canada to Assess Privacy-Impactful Initiatives in Response to COVID-19.” The Commissioner’s Office acknowledged that COVID-19 raised “exceptionally difficult challenges to both privacy and public health.” However, the framework reiterated that “the principles of necessity and proportionality, whether in applying existing measures or in deciding on new actions to address the current crisis,” will govern. Canada too is weighing the need of the information collected against the nature and sensitivity of the information collected.

The European Data Protection Board (EDPB) provided multiple guidance documents regarding COVID-19. Much like its Canadian counterpart, guidance provides that the “general principles of effectiveness, necessity, and proportionality must guide any measures adopted by Member States or EU institutions that involve processing of personal data to fight COVID-19.” These guidelines clarify the conditions and principles for the proportionate use of location data and contact tracing tools. But the EDPB also stressed that the “data protection legal framework was designed to be flexible and as such, is able to achieve both an efficient response in limiting the pandemic and protecting fundamental human rights and freedoms.”

Here in the United States, all eyes have been on the California Attorney General regarding enforcement of the California Consumer Privacy Act, which is set to begin on July 1, 2020. Unlike our neighbors to the North and Europe, there is no significant sentiment of the need for balance or proportionality. Just a reminder that as “the health emergency leads more people to look online to work, shop, connect with family and friends, and be entertained, it is more important than ever for consumers to know their rights under the California Consumer Privacy Act.”

For many sovereigns, this crisis has led enforcement agencies and legislatures to return to the roots of data privacy, which is balance and proportionality. Many privacy laws require a balancing test for entities collecting data. COVID-19 has made these principles re-emerge into the limelight.


Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.

Chicago City Council Introduces COVID-19 Anti-Retaliation Ordinance, Reflecting Growing Trend

On April 22, 2020, Chicago Mayor Lori Lightfoot, with the backing of several Aldermen, introduced the COVID-19 Anti-Retaliation Ordinance (the “Ordinance”), which, if enacted, would prohibit Chicago employers from retaliating against employees for obeying a public health order requiring an employee to remain at home as a consequence of COVID-19.  This reflects a growing trend among states and local governments in enacting protections against retaliation amid the COVID-19 pandemic.

The Ordinance would prohibit employers from demoting or terminating a “Covered Employee”[1] for obeying an order issued by the Mayor, the Governor of Illinois or the Chicago Department of Public Health requiring the Covered Employee to:

(1) Stay at home to minimize the transmission of COVID-19;

(2) Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;

(3) Obey a quarantine order issued to the Covered Employee;

(4) Obey an isolation order issued to the Covered Employee; or

(5) Obey an order issued by the Commissioner of Health regarding the duties of hospitals and other congregate facilities.

An employer would also be prohibited from retaliating against a Covered Employee for obeying an order issued by the employees’ treating healthcare provider relating to subsections (2), (3) and (4) above.

Finally, the anti-retaliation protections would extend to Covered Employees who are caring for an individual who is subject to subsections (1)-(3) above, and would apply even if workers have exhausted any earned sick-leave time available pursuant to Chicago’s Paid Sick Leave Ordinance.

Affirmative Defense

The Ordinance would allow an employer to assert an affirmative defense if it relied upon a reasonable interpretation of the public health order at-issue and, upon learning of the violation of the Ordinance, cured the violation within 30 days.

Penalties/Damages

The Ordinance has teeth:  violations can lead to fines of up to $1,000 per offense per day, and Covered Employees who have been retaliated against may pursue the following recovery in a civil action: (i) reinstatement; (ii) damages equal to three times the full amount of wages that would have been owed had the retaliatory action not taken place; (iii) actual damages caused directly by the retaliatory action; and (iv) costs and reasonable attorneys’ fees.

Next Steps

The Ordinance has been referred to the Chicago Committee on Workforce Development for further deliberation.

A Growing Trend

The protections the Ordinance would afford to employees are consistent with a growing trend among state and local governments in response to the COVID-19 crisis.  Similar protections have been established through emergency orders or rules in New JerseyMichigan and Washington which prohibit employers from disciplining or terminating employees for requesting or taking time off after contracting or, in some circumstances, being exposed to COVID-19.  Other states, such as New York and California, have issued guidance applying existing federal, state, and local anti-discrimination and anti-retaliation laws to prohibit employers from discriminating against or refusing to provide reasonable accommodations for employees who contract or are otherwise impacted by the virus. As state legislative and executive responses continue to rapidly evolve, employers should ensure that they are familiar with the latest guidance in each state where their employees are located.


[1] “Covered Employee” generally means any employee who, in any particular two-week period, performs at least two hours of work for an employer while physically present within the geographic boundaries of the City of Chicago.  Chicago, Ill., Mun. Code § 1-24-010.

© 2020 Proskauer Rose LLP.
For more on COVID-19 related employment ordinances, see the National Law Review Coronavirus News section.

COVID-19 Update: Don’t Be a Target: What Business Should Know about State Attorney General Reactions to COVID-19

In any time of crisis, there is heightened risk for fraud and scams. While United States Attorney General Barr has warned of scams and other illegal acts on the federal level,1 it is with the state Attorneys General (“AGs”) where the rubber hits the road in enforcing social distancing orders, investigating companies for alleged price gouging, continuing ongoing investigations, and overseeing lending relief efforts. As the economy begins to reopen on a state-by-state and sector-by-sector basis, companies must be vigilant in protecting themselves from the next wave of scrutiny by state AGs.

During normal times, state AGs rely upon their state’s Consumer Protection Act and Unfair or Deceptive Acts or Practices (UDAP) statutes to fight against perceived fraud. During the COVID-19 crisis, state AGs have taken the additional step of issuing Civil Investigative Demands, mostly focused on the issue of price gouging, or an instance in which a company allegedly inflates prices above a perceived acceptable level based not solely on supply and demand, but also on leveraging, in this case, the COVID-19 pandemic to the detriment of the consumer. Allegations of price gouging often appear during or immediately following natural disasters, an example of which would be heightened prices for essential products such as generators and flashlights in historically hard-hit areas such as Florida or New Orleans during the Atlantic hurricane season. In the current environment, state AGs across the country are each receiving literally hundreds of consumer complaints alleging that companies are similarly raising prices on necessities.2 Online platforms for third-party sellers are particularly vulnerable to state AGs in this environment, with most people sheltering in place and fulfilling the majority of their purchasing needs through online retail. In fact, 33 state AGs sent a letter to Amazon.com, Inc., Facebook, Inc., Craigslist, Inc. and eBay Inc. to request enhanced procedures to protect against price gouging on their respective platforms.3 Ironically, companies such as Facebook, Google, Navient, and others that have been targeted by state AGs, often on extremely flimsy legal grounds, are now being asked by those same regulators to continue their efforts to step up to assist in this pandemic. And those companies, and so many others, are doing just that.

However, there are indeed some bad actors. In one well-publicized example, two Tennessee men hoarded over 17,000 bottles of hand sanitizer with the intent to sell them for up to $70 per bottle and was immediately met by an expedited investigation by Tennessee AG Herbert Slatery.4 Other examples have abounded: Massachusetts AG Maura Healey unilaterally expanded her state’s price gouging regulations, which had previously been limited to gasoline and petroleum products, to include “all goods or services necessary for the health, safety or welfare of the public”;5 New York AG Letitia James sent cease and desist letters to merchants that were allegedly engaging in price gouging related to the sale of hand sanitizer and disinfectant;6 New Jersey AG Gurbir Grewal has sent over 80 cease and desist letters after receiving more than 600 complaints of COVID-19-related price gouging and other related consumer protection violations;7 Florida AG Ashley Moody activated a “Price gouging Hotline” and opened an investigation into third-party sellers accused of price gouging on essential goods through accounts on Amazon;8 and finally, 20 state AGs have implored 3M Company to create a database and accounting of the distribution and pricing of 3M’s N95 respirator masks, including urging 3M to publish its policies prohibiting price gouging.

Businesses that remain open should be mindful of the additional steps taken to ensure compliance with social distancing regulations. For example, Vermont AG T.J. Donovan issued a directive for law enforcement outlining guidance for the enforcement of the state’s COVID-19 Executive Order that, among other things, extended authority to the state Department of Public Safety to inspect the premises and records of any employer to ensure compliance with the Executive Order.9 Other state AGs are enforcing their states’ Executive Orders with similar diligence: New York AG James ordered over 70 medical transportation companies to stop providing group rides;10 Michigan AG Dana Nessel sent a letter to home improvement store Menards in the wake of reports that the retailer had engaged in business practices that would endanger consumers and employees contrary to the Executive Order issued by Michigan Governor Gretchen Whitmer;11 and Delaware law enforcement officials even issued cease and desist orders to a barber shop and a tobacco shop.12

As the economy begins to incrementally ‘reopen’ in the weeks and months to come, companies should document every step taken to protect their customers and employees as well as the rationale underlying those measures. The far-reaching effects of the COVID-19 pandemic are unlikely to subside until a vaccine becomes publicly available. Thus, state AGs are likely to continue to probe companies aggressively about safety measures taken to protect their customers and employees; adherence to government policies and interpretative guidance; their definition of essential employees; and whether the company contributed to the spread of the virus.

State AGs are the top law enforcement officers in their states and will continue to act to protect their citizens during, and long after, the COVID-19 crisis is over. Industry should be on the lookout for measures taken by state AGs to identify and prosecute fraud and perceived price gouging during the COVID-19 pandemic, and should comply with laws and Executive Orders as diligently as possible. What constitutes the requisite compliance with social distancing – both now and as the economy begins to reopen – and what constitutes an essential service are often somewhat subjective and may require the consult of counsel. Cadwalader’s state AG practice is regularly in close communication with state AG offices and is well-positioned to provide guidance to clients that may be in receipt of an inquiry from a state AG, and we stand ready to continue to assist clients as they navigate the implications of the COVID-19 pandemic.

1   https://www.justice.gov/opa/pr/attorney-general-william-p-barr-urges-american-public-report-covid-19-fraud

https://www.cadwalader.com/state-attorney-general-insider/index.php?nid=6&eid=34

3  https://www.attorneygeneral.gov/wp-content/uploads/2020/03/03_25_2020_Multistate-letter.pdf

4   On April 21, 2020, Tennessee AG Slatery announced that a settlement had been reached with the two men to resolve allegations of price gouging; all supplies were surrendered to a nonprofit organization in Tennessee and a portion of the supplies were distributed to officials in Kentucky, and the two men were prohibited from selling emergency or medical supplies grossly in excess of the price generally charged during any declared state of abnormal economic disruption related to the COVID-19 pandemic.

5  https://www.mass.gov/news/ag-healey-issues-emergency-regulation-prohibiting-price gouging-of-critical-goods-and-services

6  https://ag.ny.gov/press-release/2020/ag-james-price gouging-will-not-be-tolerated

7  https://www.njconsumeraffairs.gov/News/Pages/03172020.aspx

8   http://www.myfloridalegal.com/newsrel.nsf/newsreleases/A32615BF3942B33E8525854300514289?Open&

9  https://www.attorneygeneral.gov/wp-content/uploads/2020/03/03_25_2020_Multistate-letter.pdf

10  https://ag.ny.gov/press-release/2020/attorney-general-james-orders-78-transport-providers-immediately-stop-endangering

11  https://www.michigan.gov/coronavirus/0,9753,7-406-98158-523976–,00.html

12 https://www.delawarepublic.org/post/delaware-flagging-non-essential-businesses-open-during-shutdown


© Copyright 2020 Cadwalader, Wickersham & Taft LLP

For more on AG’s Enforcement Activities around COVID-19 Fraud see the National Law Review Coronavirus News section.