PLANNING FOR THE NEXT “NEW NORMAL”

With our Commonwealth’s occupancy limits and other distancing measures already lifted during Memorial Day weekend, many are wondering what more the June 15^th end of Governor Baker’s emergency declaration will mean for us. How will officially ending this declaration affect our daily lives?

To answer this question, it is important to understand that the emergency declaration is the legal mechanism that empowered the Governor to issue Executive Orders to quickly address emerging dangers posed by the COVID-19 pandemic. The Governor’s pandemic-related executive orders have the force of law so long as the emergency declaration is active. When the emergency ends, however, the temporary policies created by executive order will expire – some in short order and some over a period of a few months.

While some executive orders had only limited impacts on our day-to-day lives, others have been positively transformative and will require further legislative action in order to remain in effect. For example, the necessities of the past year prompted important policy innovations such as:

• requiring health insurers to provide coverage for telehealth services,
• embracing more efficient municipal permitting processes that expanded the availability of outdoor dining and beverage service for our restaurants,
• integrating the use of modern technology to allow the remote continuation of public meetings and court hearings while also expanding the accessibility of these meetings to the public, and
• permitting important documents such as wills, trusts, powers of attorney, and healthcare proxies to be notarized while using remote meeting technology.

As part of our ongoing commitment to you, we are closely monitoring our legislature’s efforts to address these and other pandemic-related policies. Today’s newsletter is anticipated to be the first in a series that will provide updates on legislative and other measures that are under consideration or that have recently been enacted. Below is a summary of the actions being taken to address the important policies outlined above, as well as some of the changes that impacted our courts:

Availability of Telehealth Coverage

While some telehealth services were available prior to the pandemic, they were infrequently used and often had only limited coverage within insurance plans. In one of the first major legislative enactments to address the extension/expansion of a pandemic-related executive order, the legislature passed a new healthcare law in January 2021 that now requires health insurers to permanently cover behavioral telehealth services at the same reimbursement rate that applies to in-person services. Additionally, this new law requires health insurers to continue over the next two years to reimburse providers for primary care and chronic disease visits at the same rate regardless of whether the service is provided in-person or via a telehealth platform.

Outdoor Restaurant Seating and Service

The restaurant industry was heavily impacted by the shutdowns and capacity limits necessitated by the pandemic. In an effort to quickly mitigate some of the impact of these restrictions, Governor Baker established by executive order an expedited municipal permitting process for restaurants seeking permission to create outdoor dining and beverage service spaces that would allow patrons to continue some degree of in-person dining. Many restaurants have had a very positive experience with outdoor dining and have invested a great deal of effort and capital to create safe and comfortable outdoor dining spaces for their patrons. Without legislative action, the outdoor dining permits issued pursuant to the executive order will expire sixty (60) days after the June 15^th end of the emergency declaration.

Presently, proposed legislation is under consideration that, if passed, would allow cities and towns to extend permits granted to restaurants under the executive order through November 29, 2021. This legislation is an important step towards providing restaurants with greater certainty about their ability to offer outdoor dining through the remainder of the 2021 outdoor dining season.

Remote Public Meetings and Hearings

With the pandemic necessitating the extended closure of many state and municipal buildings, Governor Baker issued an executive order authorizing public bodies to hold fully remote, publicly-accessible meetings. In many instances, this resulted in public meetings and hearings becoming accessible via Zoom and other live-streaming remote platforms. The executive order also allowed these bodies to meet quorum requirements for voting by counting as present those members who were attending the meeting via remote means.

The opportunity for the public to access and participate in public meetings via remote technology has proven to be a particularly successful endeavor and appears to have been widely embraced in many communities. That said, the use of remote meeting technology does pose concerns among some about the ability of public bodies to meet the requirements of the Commonwealth’s Open Meeting Law. In an effort to provide time for the legislature to address potential updates to existing laws, a short-term measure is presently pending in the Legislature that would extend through September 1, 2021 the modifications initially created through executive order. If no legislative solution is reached by that time, the modifications would expire and in-person public meetings would again be required.

Remote Notarization Services        

Prior to the pandemic, Massachusetts had long resisted the legislative adoption of a procedure that would allow documents to be notarized via remote technology. The necessities of the pandemic, however, required a new approach.

Just when many families were quickly taking steps to ensure that their healthcare proxies and powers of attorney were in order, notaries – who were traditionally visited at banks, law firms, and municipal offices – were suddenly unavailable to conduct in-person document signings. Rather than accomplishing this through executive order, the Legislature passed a short-term virtual notary law that permits Massachusetts notaries to notarize documents via real-time remote video technology, but only while the Governor’s emergency declaration is in effect. This law is presently set to expire three (3) days after the June 15^th end of the emergency declaration. While no extension of this law is presently under consideration, a new bill is presently before the Judiciary Committee that, if passed, would authorize electronic notary services using a different methodology from the current law.

Impact of ending the emergency declaration on the Massachusetts Trial Courts

In addition to the changes resulting from expiring executive orders, the end of the emergency declaration will also impact the administration of our state trial courts. Following the issuance of the emergency declaration, the Massachusetts Trial Court adopted a number of emergency administrative orders. While many of these orders addressed urgent issues impacting the administration of criminal proceedings, one modification that more broadly impacted the public was a restriction on public access to courthouses and court facilities in order to limit the opportunities for COVID-19 spread within these facilities.

Effective June 15, 2021, the Trial Court will be rescinding the following emergency administrative orders that had been issued in response to the emergency declaration:

• Amended Trial Court Emergency Administrative Order 20-1: Extension of the Duration of Probation Warrants as a Result of COVID 19;
• Trial Court Emergency Administrative Order 20-2: Order Concerning Probation Conditions as a Result of COVID-19;
• Trial Court Emergency Administrative Order 20-3: Temporary Waiver of Electronic Filing Fees for Indigent Filers as a Result of COVID-19;
• Trial Court Emergency Administrative Order 20-4: Extension of the Duration of Civil Commitment, Treatment and Observation Orders Made Pursuant to G.L. c. 123, as a Result of COVID-19;
• Trial Court Emergency Administrative Order 20-5: Modified Procedures Concerning Protection Orders as a Result of COVID-19;
• Trial Court Emergency Administrative Order 20-6: Temporary Alternative Procedures for Bail Magistrates and Bail Commissioners Setting and Taking Bail After Court Hours During the COVID-19 Pandemic;
• Trial Court Emergency Administrative Order 20-12: Order Supplementing the Supreme Judicial Court Third Order Regarding Public Access to State Courthouses & Court Facilities.

Importantly, while a number of the trial court’s emergency orders have been rescinded, the Massachusetts Trial Courts will continue to require the use of masks and social distancing practices and they will continue to require that everyone self-screen before coming to court. Also, as of May 1, 2021, the Supreme Judicial Court has authorized the return of 12-person juries so that jury trials can begin to be scheduled. Keep in mind, however, that scheduling trials for criminal cases where the defendant is in custody will take priority. As a practical matter, this is expected to result in some continuing delays in scheduling jury trials for civil matters until some of the backlog of criminal trials has been cleared.

If you have any questions about these or other measures that may be affected by the expiration of the Governor’s emergency declaration, please feel free to reach out. As always, we stand ready to assist you in addressing legal compliance issues that may arise as we all continue to move toward a more normal way of life and business.

As always, we would be happy to assist you.