COVID-19 Update: Recent Developments in Minnesota’s Gradual Reopening of its Economy

Legal Alert

05.08.2020

As we have previously described, Minnesota is in the process of reopening its economy and easing certain stay-at-home restrictions. On April 23, 2020, Governor Walz issued Executive Order 20-40 allowing certain Non-Critical Sector workers to return to work, which we reported at Minnesota Eases Some Restrictions and Provides Indication of the Path to Reopening the Economy During COVID-19 Crisis. On April 29, 2020, Governor Walz announced that he was signing Executive Order 20-48 which clarified previous restrictions and expanded the definition of Non-Critical Exempt Businesses, permitting more Non-Critical Sector workers to return to work, which we reported at Minnesota Cautiously Moves Forward: Extending Stay-At-Home Order While Allowing Certain Additional Businesses to Reopen. Since then, the Governor has signed Executive Order 20-49, waiving pre-existing food truck statutory restrictions, Executive Order 20-50, prohibiting the garnishment of COVID-19 relief funds, and Executive Order 20-51, providing a healthcare update.

FOOD TRUCK UPDATE:

Executive Order 20-49 (“EO 20-49”) issued May 1, 2020 by Governor Walz temporarily waives the restrictions under Minnesota Statutes 2019, section 106.08, subdivision 7 and 160.2725, subdivision 1, and as a result allows for food trucks currently holding a valid food truck license to operate at 6 designated Minnesota highway rest stops. Truck drivers are critical in the supply chain and as a result of the various patchwork of stay-at-home orders across the country many restaurants have closed. The food trucks that will operate at the 6 highway rest stops will provide critical meal resources for truck drivers. EO 20-49 remains in effect until May 17, 2020 at 11:59 p.m.

GARNISHMENT UPDATE:

On May 4, 2020, Governor Walz issued Executive Order 20-50 (“EO 20-50”) which temporarily prevents the garnishment of COVID-19 relief funds by creditors and debt collectors. EO 20-50 is intended to ensure that government emergency support funds go to their intended purpose – the immediate need of individuals’ health and safety – and are not intercepted by third parties or immediately garnished for consumer debt incurred before the COVID-19 pandemic.

EO 20-50 applies to all garnishment claims made over federal, tribal, state, and local COVID-19 funds, except for claims for child support and spousal maintenance. It prevents the automatic interception of funds paid directly to individuals and families that are intended to alleviate the financial burdens associated with COVID-19. Thus, direct stimulus payments made to individuals under the CARES Act, which we wrote about at UPDATE: Congress Passes Coronavirus Aid, Relief, and Economic Security Act, are protected by EO 20-50. Creditors and debt collectors will no longer be able to divert this money.

The provisions of EO 20-50 are temporary and expire when the peacetime emergency declared in Executive Order 20-01 is terminated or until it is otherwise rescinded. See Minnesota Prohibits Garnishment of COVID-19 Relief Funds for more information on EO 20-50.

HEALTHCARE UPDATE:

On May 5, 2020, Governor Walz issued Executive Order 20-51 “Requiring Facilities to Prioritize Surgeries and Procedures and Provide Safe Environment during COVID-19 Peacetime Emergency” (“EO 20-51”) in an effort to begin the process of resuming non-essential or elective medical procedures. Previously, Executive Order 20-09, signed on March 19, 2020, directed Minnesotans to delay all non-essential or elective procedures that utilize personal protective equipment (“PPE”) or ventilators in an effort to conserve resources in light of the COVID-19 pandemic. Further clarification was provided in subsequent executive orders as well.

Noting that postponement of these procedures has thus far been effective and that Minnesota is making progress in securing additional PPE and improving testing and hospital surge capacity, the Minnesota Department of Health (“MDH”) also recognizes that certain “elective procedures are often clinically necessary, for example, to treat chronic pain and conditions or to prevent, cure, or slow the progression of diseases.” Therefore, EO 20-51 was implemented “to allow hospitals, ambulatory surgical centers, and clinics (collectively, ‘facilities’ or ‘healthcare facilities’)—whether veterinary, medical, or dental—to resume the provision of many currently-delayed procedures once facilities have adequately planned to prioritize the ongoing COVID-19 response; develop criteria for determining which procedures should proceed during the COVID-19 pandemic; and provide a safe environment for facility staff, patients, and visitors.”

Specifically, EO 20-51 directs the following:

Starting May 11, 2020, facilities providing procedures that utilize PPE or ventilators must comply with the requirements set forth in EO 20-51.
Previous related executive orders are rescinded or modified in accordance with EO 20-51.
EO 20-51 does not restrict telehealth services and continues to encourage this option whenever possible.
Any facility offering procedures that utilize PPE or ventilators must develop and implement an internal oversight structure and written plan to allow: (1) evaluation of whether a procedure should proceed during the COVID-19 pandemic; (2) a system to prioritize procedures; and (3) ensure a safe environment for staff, patients, and visitors. Detailed requirements for the written plan are set forth in the MDH guidance (see https://www.health.state.mn.us/diseases/coronavirus/hcp/guidesurgery.pdf). EO 20-51 also provides a general overview of what the written plans must include and specifically notes, at a minimum, each plan must include:
- Prioritization of procedures: This includes an assessment of the risk and benefits of conducting a certain procedure and prioritizing procedures that pose a high risk to the patient if the procedure is delayed. This portion shall include criteria and guidance from the relevant agencies and licensing boards.
- Community considerations: A facility must collaborate with other stakeholders and facilities in the same community to ensure adequate supplies and capacity are available to respond to a potential surge in COVID-19 cases.
- Adequate screening and testing: The facility must develop protocols to screen all staff, patients, and visitors for symptoms of COVID-19.
- Use and supply of PPE: Facilities must follow and ensure staff are trained on current guidance for the use of PPE and conduct routine audits. Facilities must develop PPE conservation methods consistent with this guidance.
- Commercial sources of PPE: Facilities must ensure that PPE supply reserves and commercial supply chains are adequate to meet its needs, including the event of a potential surge in COVID-19 cases.
- Social distancing and other infection prevention measures: Facilities must implement protocols and physical measures to provide for social distancing and minimize the mixing of COVID-19 and non-COVID-19 areas.
- Patient consultation: Each patient must be informed of the risks of COVID-19 exposure prior to receiving care. Additionally, patients should be warned that procedures may be cancelled on short notice based on COVID-19-related concerns for the patient or facility.
Facilities must make their plans available to regulatory authorities, which are authorized to determine whether plans are adequate.
EO 20-51 also reinforces specific worker protections pursuant to federal and state laws. Generally, these protections are designed to prevent discrimination or retaliation towards workers for speaking out regarding concerns related to COVID-19.
EO 20-51 also provides MDH and other licensing authorities with enforcement powers related to facilities’ plans or failure to adhere thereto. These regulatory authorities are given the ability to impose penalties on facilities for noncompliance.