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What do Delaware’s Latest Orders Responding to the COVID-19 Outbreak Mean to the Healthcare Industry and Patients?

Articles & Publications

March 23, 2020
By: Bruce Tigani and Jim Gallagher
Tax Alert

Delaware Governor John Carney issued two modifications to his State of Emergency declaration on March 22, 2020. Starting Tuesday, March 24, 2020, Delawareans must stay at home whenever possible and all non-essential businesses in Delaware must close. The new set of orders is intended to fight the spread of COVID-19 in the state, which had 56 confirmed cases at the time the orders issued.

Here is what the new orders mean for healthcare in Delaware:

  • Delaware healthcare facilities of all kinds may remain open, from hospitals to family practitioners’ offices.
  • Pharmacies and drug stores remain open, so Delawareans can still obtain their medications and medical supplies.
  • Manufacturing, warehouse and trucking operations remain operational, so (hopefully) needed drugs, medical supplies and protective gear can reach their destinations in the state.  
  • For those who are immune compromised, older or have other risk factors making them susceptible to COVID-19 infections, couriers, the Post Office, and other delivery services may remain open under the new orders, so those citizens can more easily avoid leaving home.
  • Individuals may travel within Delaware to seek medical care.
  • Those who work in healthcare jobs may continue to travel to work, as those businesses are allowed to remain open.
  • All businesses, including those related healthcare, which are allowed to remain open are being urged to incorporate best practices for social distancing and sanitation.
  • Construction projects may proceed, including those in progress for various new or existing healthcare facilities, but progress may slow. See my previous post regarding challenges relating to project approvals and permitting as regulators adjust procedures to protect their workforces; add to that the possibility that contractors may independently decide to cease work due to COVID-19 danger, and design professionals being required to work from home.
  • Law offices and banks can remain open, but prepare for logistical challenges in healthcare related transactions. For those buying or selling a medical practice, or consummating a real estate transaction involving a healthcare facility or medical office, Delaware’s attorneys need not close offices under the new orders, but many practices, including Morris James LLP’s five locations, have elected a work from home strategy for most personnel to help fight the spread of the virus, at least temporarily. If certified funds or a wire, or loan document preparation, is required for a transaction, give the bank more lead time, and check in to make sure special arrangements are not required. 

It’s not just the new executive orders that impact the healthcare industry in Delaware. Key government actors are anything but business as usual in the First State, and that will also curtail many healthcare related pursuits: 

  • Though the new orders do not shutter government, many healthcare matters handled by the executive will not go forward until further notice. That means the Health Resources Board, responsible for overseeing major medical development, will not be meeting. Similarly, the Division of Professional Regulation has suspended hearings for routine matters, including those relating to healthcare licensure.
  • The Delaware Legislature has postponed its session indefinitely and the Speaker and Pro Tem have indicated they will not be adding extra days to the calendar past their constitutionally-required June 30 deadline, telegraphing that their only required duty is to pass a budget. This puts the future of hundreds of filed and prospective bills ranging from vaping bans to marijuana legalization in peril. Those which fail to pass both chambers by June 30th are effectively dead and must be re-introduced in 2021, the beginning of a new two-year session.
  • Delaware’s Courts are operational for the most part, but with skeletal staff only, have continued or postponed a range of matters, and in some cases are only scheduling emergency hearings. In this environment, it’s extremely important to make sure healthcare directives and other critical paperwork are easily accessible; patients without them should be advised to have them prepared. It’s going to be challenging to bring matters quickly before the Delaware Courts relating to end of life issues or guardianships for some time. 
  • Members of our Tax, Estates & Business Practice Group have been proactive in the Delaware Bar Association drafting team preparing an Executive Order to present to Governor Carney that will facilitate transactions and execution of estate planning documents in these times of social distancing.  The Executive Order, once signed, will permit remote notarization and witnessing in the State of Delaware, while implementing appropriate safeguards to curb abuse.

Delaware’s public servants have acted in the best interest of the public by doing their part to prevent the further spread of the virus. The healthcare industry in the state needs to be prepared to work around this new normal for the time being. Unfortunately, the Governors’ new orders cannot conjure additional nurses or doctors, expand bed space, or offer a vaccine. The rest of the new orders address these realities by restricting individual travel to necessities shopping, seeking medical attention, and outdoor exercise. The boardwalks and most retail stores are closed, with many offices work from home only. Flattening the curve through these and voluntary measures buys some time, evens out the burden on the system, and helps keep Delaware’s healthcare workforce a little safer during the race to access additional protective gear, and – it’s to be hoped – additional treatments or a vaccine. For now, be safe and healthy, and let us know if we at Morris James LLP can help you navigate this difficult time. 

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