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Alabama Healthcare Providers and COVID-19: Preparing for State Action

March 16, 2020

Given the recent rise in coronavirus (COVID-19) cases, Alabama physicians must be ready to swiftly comply with state and federal guidance.  On March 13, 2020, Governor Kay Ivey declared a state of emergency.  Such a declaration gives the state broad authority to control healthcare.

Preparing for a Public Health Emergency in Alabama 

On March 13, 2020, the State of Alabama confirmed its first coronavirus (COVID-19) case and as of this bulletin, the number of positive COVID-19 cases in the state has risen to 22.  In response to these positive tests, Governor Ivey declared at state of emergency on March 13th. Understanding the legal parameters of a state of emergency declaration in the case of an epidemic or pandemic will help providers prepare for the federal, state, and local coordination and oversight that will follows.

What is included in Alabama’s COVID-19 state of emergency declaration?

In the March 13th declaration (full text linked here), Governor Ivey declared the following, as related to healthcare services:

  • Healthcare facilities may implement “alternative standards of care” per those facilities’ emergency operation plans and those alternative standards of care are declared to be state-approved.
  • The “degree of care” owed to patients by healthcare facilities shall be the same degree set forth in the alternative standard of care plans.
  • All healthcare professionals and assisting personnel executing alternative standard of care plans are declared to be “Emergency Management Workers.”  This designation, among other things, providers state immunity to workers for deaths or injuries arising from emergency management activities.

What else does a state of emergency declaration enable the Governor to do? A state of emergency declaration generally empowers the Governor to act swiftly and without regard to existing legal limitations.  During a state of emergency, the Governor is granted broad powers to develop and execute a comprehensive emergency plan.  This may include, in relevant part:

  • Directing state and local boards of health as reasonably necessary to secure compliance with the Governor’s emergency plan
  • Procuring supplies and materials
  • Surveying industries, resources and facilities available (for example, hospitals and physician offices)
  • Instituting training and public information programs
  • Mobilizing emergency management organizations
  • Controlling the conduct and movement of civilians, traffic, or gatherings (quarantines)
  • Creating and establishing mobile support units
  • Delegating and directing local agencies and law-enforcement
  • Sponsoring mutual aid plans and agreements between political subdivisions of the state
  • Calling the Legislature into special session

During a state of public health emergency specifically, the State Board of Health is granted the power to inform members of the public on how to protect themselves and what actions are being taken to control the emergency. Ala. Code § 31-9-8.

In addition to the expanded powers during a state of emergency, such a declaration may also enable the state to more readily access federal emergency funds.  Alabama law requires that a state of emergency terminate 60 days after the date it was proclaimed, unless extended by a new proclamation by the Governor or by a joint resolution by the Legislature.  Ala. Code § 31-9-6.

What are some ways that Alabama providers can be proactive in preparing for COVID-19? Physicians should regularly (daily or more often, as this is an emerging situation) review and implement guidance on COVID-19 from the relevant federal and state agencies:

  • The Centers for Disease Control and Prevention (the CDC) has a webpage devoted to COVID-19 information for Healthcare Professionals, including guidance on the spread of the virus, protection, cleaning, and when to contact occupational health services in the event of unprotected exposure: https://www.cdc.gov/coronavirus/2019-ncov/hcp/index.html
  • The Centers for Medicare and Medicaid Services (CMS) has also issued guidance regarding infection control, patient triage, hospital discharge, and nursing home infection control and disease prevention.  We also expect CMS to release a question and answer memorandum shortly: https://www.cms.gov/medicare/quality-safety-oversight-general-information/coronavirus.
  • The State of Alabama recently formed a COVID-19 Task Force.  This task force has not yet released any guidance or directives, but physicians should regularly check the Alabama Emergency Management Agency’s webpage for updates: https://ema.alabama.gov/.

In addition to the guidance provided above, physicians should also ensure they feel comfortable with HIPAA privacy requirements during an infectious disease outbreak.  The U.S. Department of Health and Human Services (HHS) recently published a memorandum regarding HIPAA and COVID-19. HHS’ website also includes a decision tool to assist physicians in determining what information is lawful to share and with whom:  https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/index.html.

We are closely following the COVID-19 cases across the nation and the implications for Alabama’s patients and healthcare providers.  If you have any questions or need legal support in understanding and implementing the federal, state, or local guidance regarding COVID-19, please contact Catherine (Cat) Kirkland at 251-445-4720, ckirkland@starneslaw.com.


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