What You Should Know About How COVID-19 Is Impacting Arizona

By Matt Hesketh, Sean Moore, and Jonathan Loe

OTHER RESOURCES

  • Here is a list of Arizona’s responses to COVID-19.
  • The governor’s website has a list of News Releases and Executive Orders related to COVID-19.
  • Access the latest updates from the Arizona Department of Health Services here.
  • Access Arizona Together’s COVID-19 webpage here, with information and resources for businesses and individuals.
  • Access the Arizona Commerce Authority’s COVID-19 webpage here, with information and resources for businesses.

LEGISLATION

  • State Budget for FY 2021
    • See the Governor’s accompanying letter here.
    • Appropriates $50 million for a Crisis Contingency and Safety Net Fund to assist Arizona’s COVID-19 response to be used for the following purposes:
      • Housing assistance, including payments to prevent eviction or foreclosure
      • Assistance to entities that provide services for homeless persons, including shelter, food, clothing, and transportation
      • Economic assistance to small businesses with fewer than 50 employees, nonprofit organizations, and health care providers
      • Foodbank operations
    • On March 30, Governor Ducey announced that $6.7 million of the Crisis Contingency and Safety Net Fund would be used to support food banks, nutrition programs, and services to help the homeless community.
  • HB 2910 – Public School Closures; Coronavirus
    • Closes public schools for an indefinite period of time until the statewide closure of public schools is lifted. ***UPDATE—On March 30, Governor Ducey and Superintendent Hoffman announced that schools will remain closed through the remainder of the 2019 – 2020 school year.***
    • All school employees will continue to be paid during the closure.
    • Beginning on March 30, schools are required to offer instruction through “alternative formats”—namely online—until the end of the regularly scheduled school year, if the closure lasts that long.
    • Allows schools to deviate from normal statutory requirements during the closure period. Schools are not required to extend the number of school days or add additional instructional hours to make up for days missed.
    • Cancels some statewide assessments.
  • SB 1051 – Continuation of the Arizona Department of Health Services
    • Extends the operation of the Arizona Department of Health Services (ADHS) for eight years, until July 1, 2028.
    • Appropriates $5 million in FY 2020 to the Public Health Emergencies Fund.
    • Appropriates up to an additional $50 million in FY 2020 to the Public Health Emergencies Fund and specifies that appropriated monies must be used in response to COVID-19.
    • The bill is intended to “provide immediate additional resources and further access to an increased capacity of public health emergency funding.”
  • SB 1694 – Unemployment Compensation; Coronavirus Disease
    • Permits the Arizona Department of Economic Security (ADES) to create and implement alternative benefit eligibility and employer contribution requirements for unemployment benefits.
    • The bill is intended to “provide additional resources and flexibility for the unemployment insurance program for individuals and businesses affected by COVID-19,” specifically, to waive the waiting period and other requirements before applicants may receive benefits and to lessen the burden of funding unemployment benefits on employers directly impacted by COVID-19.

EXECUTIVE ORDERS FROM THE GOVERNOR

  • On March 11, Governor Ducey issued a Declaration of Emergency and Executive Order 2020-07 in response to the COVID-19 pandemic:
    • Requires insurance companies and health plans to cover COVID-19 diagnostic testing from out-of-network providers, including out-of-plan laboratories and telemedicine providers.
    • Waives copays, coinsurance, and deductibles related to COVID-19 diagnostic testing and decreases copays for telemedicine visits.
    • Implements consumer protections, including prohibiting price-gouging on COVID-19 diagnosis and treatment-related services.
    • Requires symptom checks of healthcare workers and visitors at skilled nursing facilities, nursing homes, and assisted living facilities.
    • For additional information, see the governor’s official News Release.
  • On March 19, Governor Ducey issued Executive Order 2020-08 (delaying expiration of driver licenses):
    • Delays by six months the expiration of driver licenses that would expire between March 1 and September 1.
    • Defers requirements to submit a medical clearance card for a CDL until September 1.
    • Directs that driver licenses that expire between March 1 and September 1 shall be accepted as valid whether or not they have expired.
  • On March 19, Governor Ducey issued Executive Order 2020-09 (closing certain businesses):
    • The following establishments in Arizona counties with confirmed cases of COVID-19 (all Arizona counties) must close to the public until further notice:
      • Bars
      • Movies theatres
      • Indoor gyms and fitness clubs
    • Restaurants in the same counties must stop on-site dining until further notice but may continue to serve food through delivery/take-out/drive-through.
    • Allows restaurants in the same counties with a Series 12 liquor license to sell alcoholic beverages for off-site consumption, subject to certain requirements. The Arizona Department of Liquor Licenses and Control has issued guidance on these requirements, available here.
    • Allows manufacturers, wholesalers, and retailers to buy back unopened products from restaurants, bars, and clubs.
    • Permits nursing homes, hospitals, and similar facilities (like soup kitchens) to keep operating as normal.
  • On March 19, Governor Ducey issued Executive Order 2020-10 (delaying elective surgeries):
    • Precludes licensed healthcare facilities and licensed healthcare providers from performing “non-essential or elective surgeries, including elective dental surgeries, that utilize personal protective equipment or ventilators.”
      • A “non-essential or elective surgery means a surgery that can be delayed without undue risk to the current or future health of a patient.”
      • Licensed medical professionals must “use their best medical judgment” when determining whether a surgery is non-essential or elective.
      • Surgeries should not be deemed non-essential or elective if delaying surgery would:
        • Threaten the patient’s life
        • Threaten permanent dysfunction or impairment of any body part
        • Risk metastasis or progression of staging
        • Require the patient to remain hospitalized if the surgery was delayed
  • On March 20, Governor Ducey issued Executive Order 2020-11 (expanding unemployment insurance and waiving certain requirements):
    • Expands unemployment insurance to employees who:
      • Worked for a company that has permanently or temporarily closed or drastically reduced its hours as a result of COVID-19.
      • Have been quarantined and are unable to work but do not have available paid leave.
      • Leave employment due to the risk of exposure to COVID-19 or to care for a family member who has been infected with COVID-19.
      • Are separated from employment for any other reason related to COVID-19, if the Arizona Department of Economic Security determines that such scenario is consistent with guidance issued by the United States Department of Labor for Unemployment Compensation for Individuals Affected by COVID-19.
    • Waives the waiting period under A.R.S. § 23-771(A)(5).
    • Waives requirements that applicants show they are able and available to work, actively seeking work, and making daily job contacts.
    • Unemployment benefits granted pursuant to this executive order cannot be considered when adjusting employer contribution rates for the unemployment compensation fund.
    • Applies retroactively to the Declaration of Emergency on March 11.
  • On March 23, Governor Ducey issued Executive Order 2020-12 (prohibiting the closure of essential services) and Executive Order 2020-13 (coordinating the testing and tracking of COVID-19 cases):
    • Executive Order 2020-12 broadly defines “essential services” in Arizona and precludes counties, cities, and towns from closing essential businesses or issuing stay-at-home orders that conflict with guidance from the state.
      • Click here to read our advisory with more information about the definition of essential services and the continued operation of essential businesses.
      • Click here to read clarifying guidance from the governor’s office on which services are considered essential.
    • Executive Order 2020-13 issues an Enhanced Surveillance Advisory allowing the Arizona Department of Health Services (ADHS) and local health authorities to access confidential patient information, including medical records, to identify, diagnose, treat, and track people who may have been exposed to COVID-19.
    • Executive Order 2020-13 also requires laboratories to report COVID-19 test results to ADHS and requires hospitals to make daily reports with information about treatment capacity and available medical supplies. The Arizona State Laboratory shall coordinate specimen testing related to COVID-19, and ADHS shall determine criteria necessary for private and public laboratories to conduct COVID-19 testing.
  • On March 24, Governor Ducey issued Executive Order 2020-14 (delaying evictions):
    • Delays evictions for residential premises in the following circumstances:
      • The tenant is required or ordered to be quarantined because of a COVID-19 diagnosis or symptoms associated with COVID-19.
      • The tenant is required to be quarantined because someone in the home has been diagnosed with COVID-19.
      • The tenant is at a higher risk related to COVID-19 because of a health condition.
      • The tenant has suffered a substantial loss of income because of COVID-19, including job loss, reduction in compensation, closure of business, absence from work because of childcare responsibilities or other pertinent circumstances.
    • However, a court may determine that more immediate enforcement of an eviction order is necessary in the interest of justice or in accordance with A.R.S. § 33-1368(A) (dealing with material and irreparable breaches of a rental agreement).
    • Tenants must inform the landlord or property owner in writing and provide supporting documentation of the circumstances that would allow for relief under the order. The tenant also must acknowledge that the contractual terms of the lease remain in effect.
    • A landlord or property owner may not terminate a lease based on COVID-19 or information provided by a tenant to satisfy the notice requirement of the order.
    • The order does not relieve tenants of the obligation to pay rent or comply with any other obligation of the rental agreement.
  • On March 25, Governor Ducey issued Executive Order 2020-15 (expanding insurance coverage for telemedicine):
    • All health insurance plans regulated by the Arizona Department of Insurance must cover all telemedicine healthcare services if the healthcare service would be covered through an in-person visit.
    • Arizona Health Care Cost Containment System (AHCCCS) benefits must be accessible by telemedicine to AHCCCS members.
    • Insurers must reimburse providers at the same level for telemedicine visits as they would for in-person visits.
    • Insurers may establish reasonable documentation and recordkeeping requirements, but any requirements and parameters cannot be more restrictive or less favorable to providers, the insured, enrollees, or members than required for in-person healthcare.
    • Insurers must allow all electronic means of delivering telehealth, including phone and video calls, and must allow a patient’s home to be an approved location to receive telemedicine services.
    • Arizona regulatory boards may not require licensed medical professionals to conduct in-person examinations before issuing a prescription.
    • Telehealth services can be provided by any Arizona licensed health provider type.
    • NOTE: This order does not expand the scope of practice for any licensed provider type.
    • NOTE: This order remains in effect until the Declaration of Public Health Emergency is terminated.
  • On March 26, Governor Ducey issued Executive Order 2020-16 (increasing hospital capacity for COVID-19 preparedness):
    • As of March 26, there have been over 491,000 confirmed cases and over 22,000 deaths related to COVID-19 across the globe.
    • It is necessary for hospitals to increase capacity to prepare for a surge in patients to deal with COVID-19:
      • All licensed hospitals shall activate their facility emergency plans and institute plans to optimize staffing levels.
      • All licensed hospitals shall implement triage processes and develop triage criteria to relieve the excess burden on emergency departments and to reroute noncritical patients to other providers.
      • Except for special hospitals providing only psychiatric services, all hospitals shall develop a plan for a 25 percent increase in bed capacity by April 10 and a 50 percent increase in bed capacity by April 24.
      • Except for special hospitals providing only psychiatric services, all hospitals shall make a report to ADHS regarding certain bed-capacity metrics.
      • Hospitals that provide pediatric services must admit patients up to age 21.
      • Any hospital that needs a waiver to meet the requirements of the order must communicate with ADHS.
      • AHCCCS benefits must be made available for all services provided to AHCCCS members in the expanded surge-capacity beds.
      • Insurers must reimburse for services provided in the expanded surge-capacity beds at the same level as they would for inpatient stay and services in a licensed and/or certified bed.
  • On March 26, Governor Ducey issued Executive Order 2020-17 (delaying expiration of occupational licenses and expanding licensing opportunities):
    • For certain occupational licenses with an expiration date between March 1 and September 1, defers the expiration date by six months unless the renewal can be completed online.
    • Defers continuing educations requirements by six months unless the requirements can be completed online or it is impractical due to the nature of the license.
    • Suspends rules that prevent or limit the amount of online or alternative hours to obtain or renew a license.
    • Encourages electronic or remote format examinations for licensure.
    • Allows for a six-month provisional license if testing is unavailable or impracticable and other requirements are met.
    • Fees may be waived at the discretion of the applicable state agency or board.
    • NOTE: The order contains a list of applicable licensing boards and agencies.
  • On March 30, Governor Ducey issued Executive Order 2020-18 (Stay Home, Stay Healthy, Stay Connected):
    • Instructs Arizonans to stay at home. Arizonans may leave their homes only to participate in Essential Activities, Essential Functions, and Essential Business.
    • Essential Activities include: obtaining necessary household items, caring for others, engaging in outside exercise, seeking medical services, participating in court proceedings, and engaging in constitutionally protected activities such as speech and religion.
    • Essential Functions include the broad range of business and other activities outlined in Executive Order 2020-12. Any businesses that remain open must adopt rules and procedures to conform with the six-foot physical distancing guidelines.
    • All other non-essential business can continue to the extent it can be completed in a work-from-home setting.
    • No person shall be required to provide documentation or proof to justify their activities under the order, and people must be notified and given an opportunity to comply before enforcement action may be taken.
    • Cities, counties, and towns may not limit activity beyond what has been proscribed by the governor.
    • The order goes into effect at 5:00 p.m. on March 31 and remains in effect through April 30, unless extended.
  • On April 1, Governor Ducey issued Executive Order 2020-19 (Telemedicine for Pets and Animals):
    • Authorizes the use of telemedicine by licensed veterinarians in Arizona while the COVID-19 Declaration of Public Health Emergency is in effect.
    • The practice of telemedicine is subject to any reasonable requirements established by the Arizona State Veterinary Medical Board.
    • Veterinarians may not charge more for telemedicine than they would charge for an in-person visit.
  • On April 2, Governor Ducey issued Executive Order 2020-20 (Expanding Access to Pharmacies):
    • Allows pharmacists to exercise professional judgment to interchange therapeutically equivalent medications of the same drug classification and to dispense emergency refills of maintenance medication for up to a 90-day supply and an additional 90-day supply if necessary (controlled substances are not “maintenance medications” under the order).
    • Waives or extends certain recordkeeping and electronic prescribing requirements.
    • Imposes restrictions and limits on prescriptions of hydroxychloroquine and chloroquine to treat COVID-19, including prohibiting prophylactic prescriptions until peer-reviewed evidence for effectiveness becomes available.
    • Allows pharmacies and wholesalers to source pharmaceuticals from unpermitted out-of-state suppliers who have certain licenses or registrations.
    • Waives the requirement for companies to have a permit to produce hand sanitizer.

COVID-19 INITIATIVES

  • March 20, 2020: The Arizona Department of Revenue issued Arizona General Tax Notice GTN 20-1, under which the due dates for reporting and paying Arizona individual, corporate, and fiduciary income taxes for Calendar Year 2019 are extended to July 15, 2020.
  • March 24, 2020: Governor Ducey notified the Center for Medicare and Medicaid Services (CMS) of his decision to exempt Arizona from a federal regulation requiring Certified Registered Nurse Anesthetists (CRNAs) to be supervised by a physician.
  • March 26, 2020: Governor Ducey announced a cooperative agreement with Arizona’s major electric utilities—including Arizona Public Service (APS), Salt River Project (SRP), Tucson Electric Power (TEP), and six electric cooperatives—to assist customers during the COVID-19 crisis. Customers will not have their power shut off, and all penalties, late fees, and interest are waived. In addition, the utilities will work with customers and medical service providers to ensure energy needs are met.
  • March 27, 2020: Governor Ducey announced $5 million from the State Housing Trust Fund to help make rent payments for certain residential renters who have seen a reduction in income due to COVID-19. This Rental Eviction Prevention Assistance Program launched on March 30 through the Arizona Department of Housing. Applications for assistance are available at https://www.saveourhomeaz.gov/ra/.
  • March 30, 2020: Governor Ducey and Superintendent Hoffman announced that Arizona public schools will remain closed through the end of the 2019 – 2020 school year. The closure applies to all public schools, including district and charter schools. Private schools are separately required to remain closed in alignment with federal guidance recommending closures through at least April 30.
  • March 30, 2020: Governor Ducey announced a cooperative agreement with Arizona banks to suspend evictions and foreclosures for 60 days and to expedite the application process for small businesses and sole proprietors affected by COVID-19 to obtain assistance as part of the federal Paycheck Protection Program under the CARES Act. Businesses interested in applying should be ready with their IRS-issued EIN, payroll records, and a short statement on how COVID-19 is impacting them. In addition, many banks are working with consumers on payment deferrals on certain consumer loans and are adopting payment deferral programs for business loans under guidance from banking regulatory agencies.
  • March 30, 2020:  Gov. Ducey announced $6.7 million in funding to support food banks, nutrition programs, and programs to serve the homeless as part of the $50 million COVID-19 relief package signed into law as part of the State Budget Agreement, which created the Emergency Crisis Contingency and Safety Net Fund. The funds will be used to help provide food bank assistance, SNAP assistance, support for the “Farm To Food Bank” Program, and clean and safe housing arrangements for Arizona’s homeless community.
  • March 31, 2020: Gov. Ducey announced that the Arizona Department of Liquor Licenses and Control would defer payment of all liquor licensing fees for 90 days.  This initiative aids establishments that could have faced penalties and late fees on April 1.

ATTORNEY GENERAL OPINIONS

  • March 31, 2020 – Opinion No. I20-006: Local governments have the authority to issue emergency declarations, and anyone who knowingly refuses to obey a local emergency declaration is guilty of a class 1 misdemeanor.  Law enforcement authorities have the authority to enforce restrictions and regulations imposed by a local emergency declaration, but such enforcement must maintain constitutional safeguards that protect individual rights and fundamental liberties.

ARIZONA DEPARTMENT OF HEALTH SERVICES

  • Latest updates here.
  • The Arizona Poison Control System is available to answer questions about COVID-19 (+1-844-542-8201).
  • On March 12, 2020, Governor Ducey signed legislation that appropriates $55 million to the Public Health Emergency Fund.
  • ADHS fact sheet for businesses.
  • ADHS recommendations for employers:
    • Prepare for increased absence in employees due to illness of employees, their family members, or early dismissal of early childhood programs and K – 12 schools.
    • Implement plans to continue your essential business functions in case you experience higher than usual absenteeism (e.g., telework options, cross-training, etc.).
    • Assess essential functions of business operations and be prepared in the event to change suppliers, prioritization for operations, or temporary suspension of business operations.
    • Employers with multiple business locations are encouraged to provide local managers with the authority to take appropriate actions outlined in their business infectious disease outbreak response plan, based on the condition in each locality.
    • Businesses that require their employees to travel should check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations on country-specific travel.
    • If staff have tested positive for COVID-19, they should remain under home isolation precautions for seven days from specimen collection or until 72 hours after fever is gone and symptoms of acute infection resolve, whichever is longer.
    • If staff have tested negative for COVID-19 and have compatible symptoms (fever, cough, shortness of breath), they should stay home, away from others until 72 hours after all symptoms of acute infection resolve.
    • If staff have fever with cough or shortness of breath and have not been tested for COVID-19, they should stay home, away from others until 72 hours after fever is gone and symptoms of acute infection resolve.

CITY OF PHOENIX

  • On March 20, the Phoenix City Council declared a local emergency and preserved the right for the mayor to declare a great emergency in the future if warranted by the circumstances.
  • Access to City Hall and the Calvin C. Goode Municipal Building is restricted to appointment-only.
  • Phoenix freezes all spending and hiring.
  • List of impacted services.
  • List of canceled/postponed events.
  • The following city services are still in operation:
    • 911, police, and fire
    • Airport operations (review Sky Harbor page for more details)
    • City services customer pay stations
    • Finance and procurement
    • Outdoor city parks (playgrounds and certain other amenities are closed and access to certain popular trailheads is being limited – more details here)
    • Public transit (review Public Transit page for more details)
    • Trash and recycling (review Trash page for more details)
    • Street maintenance (review Maintenance page for more details)
    • Water and wastewater (review Water page for more details)
  • The Business and Resident Resource Services is offering resources for:
    • Job-seekers and laid-off workers
    • Businesses
    • Nonprofits
    • People seeking COVID-19 testing (or call 2-1-1 between 8:00 a.m. and 8:00 p.m.)
    • Seniors in need of meals
    • Students in need of meals
    • Families or individuals in need of meals
    • Tenants facing eviction or utility issues
    • Artists
  • If you have other questions about city services, call 602.262.3111 or email contactus@phoenix.gov.
  • The Housing Department Impacted Services Update provides information for all city residents.

 

Sherman & Howard gratefully acknowledges the assistance of Extern Law Clerk Jake Rapp in preparing this memorandum.

©2020 Sherman & Howard L.L.C. has prepared this newsletter to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the firm.

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