Coronavirus Flash Update: July 2020 #2

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Alston & Bird’s Coronavirus Flash provides updates on policy and regulatory actions under consideration across many important industries being monitored by our teams. Links to key government and legal resources are provided throughout the report.


UPDATED 9:00 AM ET ON MONDAY, JULY 13, 2020

The Latest News

  • U.S. COVID-19 cases exceed 3,290,787 and 132,396 U.S. deaths. (Source: CDC) (Updated 7/13/20)
  • U.S. stock market: On Friday the markets were up for the day, with the Dow rising 369 points, the S&P 500 gaining 32 points, and the Nasdaq adding 69 points. (New)
  • The National Federation of Independent Businesses (NFIB) released survey results which indicate that 22% of the Paycheck Protection Program (PPP) loan recipient firms anticipate having to lay off workers once the loan is exhausted. More than 56% have spent their loans, and over 38% kept their original 8-week loan forgiveness period. (7/10/20) (New)
  • Vice President Mike Pence and HHS Secretary Alex Azar reassured governors last week that the Administration planned to extend the public health emergency (PHE) declaration when it expires on July 25. If extended it will be the second extension since the coronavirus emergency was declared in January. Public health emergency declarations are often extended (each extension is for 90 days) months beyond the dates of initial disasters, but the coronavirus emergency has been unique due to its nationwide impact and the number of waivers and regulatory flexibilities extended for the duration of the PHE. To confirm the phone pledges made by Vice President Pence and Sec. Azar, the HHS communications director, Michael Caputo tweeted "Enough already. @HHSGov expects to renew the Public Health Emergency due to COVID-19 before it expires." (7/7/20) (New)

COVID-19 Federal Legislation

  • Bill 4.0: The Administration has voiced its support for another emergency stimulus package by early August but want the cost to be limited to $1 trillion or less. The House of Representatives is scheduled to depart by August 3 for the August recess and is setting a narrow window for action on bill 4.0. With only weeks before August 3, very little has been publicly released on the negotiations, but some COVID-19 relief may be included in the fiscal year 2021 appropriations proposals moving forward in the House this week. Last week, the House passed S. 4209, which would expand COVID-19 aid for non-profits and state and local governments, and in separate action the House leadership is considering including $24 billion in state and local aid in the House Labor-HHS appropriations bill to be considered by the full committee this week. (New)
  • The HEROES Act was the first formal offer on a new emergency stimulus bill, 4.0: For the full details on the HEROES Act, H.R. 6800, which passed the House on May 15:
  • The Paycheck Protection Flexibility Act, H.R. 7010, was enacted on June 5. To learn more, see this A&B Summary of the Paycheck Protection Flexibility Act. (6/5/20)
  • Bill 3.5: Paycheck Protection Program and Health Care Enhancement Act, (R. 266) was enacted on April 24. Also available are a section-by-section summary and an overview of the health care provisions.
  • A&B detailed summaries are below:
    • A&B Summary5 Small Business Provisions
    • A&B Summary5 Health Care Enhancement Provisions
  • Bill 3.0: Coronavirus Aid, Relief, and Economic Security (CARES) Act, (R. 748) passed on March 27. A congressional section by section summary is available here.
  • Congress has passed three coronavirus emergency response bills and the first two are below:
  • Bill 1.0: Coronavirus Preparedness and Response Supplemental (CPPRS) (R. 6074) passed on March 5
  • Bill 2.0: Families First Coronavirus Response Act (FFCRA) (R. 6201) passed on March 18

Transition to “Reopening”

  • Administration Actions
  • The Administration’s changes to the Student Exchange Visitor Program and the online-only classes at colleges and universities receive a full analysis in this A&B Advisory. (7/7/20) (New)
  • State/Other Actions
    • For the latest information on state reopening decisions, see A&B 50-State Reopening Tracker - updated in each A&B Coronavirus Flash. (Updated 7/9/20)
  • Business Insurance News
  • On June 29, Representative Mike Thompson (D-CA) introduced H.R. 7412, a Bill “[t]o establish a temporary voluntary program for support of insurers providing business interruption insurance coverage during the COVID-19 pandemic, and for other purposes.” While the text of the bill is not yet available, a Press Release issued by Representative Thompson’s office indicates that the bill would establish a “voluntary program that would reimburse insurers who voluntarily pay our business interruption claims.” (New)
  • On July 2, the Maryland Insurance Administration issued Bulletin 20-28, which recognizes that while the Administration has requested that property & casualty insurers make reasonable accommodations to avoid cancellation of policies for non-payment of premiums due to COVID-19, that most admitted insurers have complied with the Administration’s request, but insurers cannot be expected to provide coverage in the absence of premium payments indefinitely. The Administration has stated that it “has not issued, and does not (at this time) plan to issue orders compelling property and casualty insurers to continue to maintain policies in force indefinitely without payment of premium.” However, admitted insurers will be required to make an informational filing in SERFF providing details of its COVID-19 response efforts. An upcoming Bulletin will provide additional information regarding this required filing. (New)
  • On July 7, Pagnol et Cie., Inc dba Chez Panisse, a well-known Berkeley restaurant filed suit against its insurer AMCO Insurance Company, an affiliate of Nationwide Mutual Insurance Co. in the Northern District of California. The Complaint alleges AMCO “swiftly denied” its claim for business interruption coverage relating to its suspension of in-house dining in compliance with certain statewide closure orders. Plaintiff alleges that compliance with the state “orders has caused direct physical loss of Chez Panisse’s insured property in that the property has been made useless and/or uninhabitable. Without citing any specific policy provisions, Plaintiff argues that they purchased “full-spectrum, comprehensive insurance for their business – not just for damage to their physical premises and equipment.” Plaintiff seeks a declaratory judgment that its policy provides coverage for the losses it has sustained by complying with the state closure orders, as well as damages for breach of contract and breach of the implied covenant of good faith and fair dealing. The case is Pagnol et Cie., Inc. v. AMCO Ins. Co., No. 4:20-cv-04488 (N.D. Cal.). (New)

Department of Health and Human Services

HHS/CDC/CMS/HRSA CARES Act Provider Relief Funds

  • HHS - the CARES Act Provider Relief Fund (PRF) webpage and portal (Updated 7/10/20)
  • And the PRF FAQs (Updated 7/10/20) have been updated and capture numerous modifications.
  • HRSA has released a Fact Sheet on Medicaid and CHIP provider resources. (7/7/20) (New)
  • HHS announced $4 billion in additional provider relief fund payments to be disbursed to certain rural and small metropolitan hospitals, hospitals serving a high number of Medicaid patients, and providers of large amounts of uncompensated care. (7/10/20) (New)
  • The CDC has posted an updated dataset of provider recipient specific payment from the Provider Relief Fund general distribution high impact targeted allocation and/or rural targeted allocation. The dataset includes who has attested to receiving one or more payments and agreed to the terms and conditions as of July 10. (Updated 7/10/20)
  • The Internal Revenue Service (IRS) issued FAQs on the provider relief fund to address questions on the taxation of fund payments. (7/8/20) (New)
  • A number of health care provider organization have expressed their concern with the taxation. (6/25/20) (New)
  • HHS posted a resource on Provider Relief Fund disbursements to serve as summary of the key details. The CARES Act Provider Relief Fund hotline is (866) 569-3522. (6/18/20)
  • A&B Hospital Provisions from all 4 bills tracker (Updated 7/12/20)
  • A&B Provider Relief Fund Disbursement tracker (Updated 7/12/20)

Centers for Disease Control and Prevention

Centers for Medicare & Medicaid Services

  • The Centers for Medicare and Medicaid Services (CMS) latest news alerts. (Updated 7/10/20)
  • For the latest COVID-19 related CMS guidance and FAQs visit the CMS Current Emergencies webpage. (Updated 7/9/20)
  • CMS released additional aid for nursing home hotspot areas. (7/10/20) (New)
  • CMS released revised guidance on nursing home safety and quality, including the nursing home five star rating system. (7/9/20) (New)
  • CMS Medicare proposed payment changes for dialysis in the home setting. (7/6/20) (New)

Food and Drug Administration

Small Business Administration

  • The President signed into law 4116 which reauthorizes the Paycheck Protection Program (PPP) through August 8. This extends the PPP loan assistance for small businesses which had been set to expire on June 30 for another 6 weeks. (7/4/20)
  • The SBA Paycheck Protection Program (PPP):
  • The SBA detailed data on PPP loans, including recipient names. (7/6/20) (New)
  • The PPP FAQs have been updated. (6/25/20)

Other Federal Agencies

  • The U.S. Department of Agriculture announced additional commodities for coronavirus food assistance programs. (7/6/20) (New)
  • The Environmental Protection Agency’s decision to end its temporary policy to exercise enforcement discretion for noncompliance of routine monitoring and reporting during the pandemic gets a full analysis in this A&B Advisory. (7/2/20)
  • The Federal Communications Commission (FCC) announced the award of 25 additional grants for the COVID-19 telehealth program. (7/8/20) (New)
  • The Federal Emergency Management Administration (FEMA) posted a fact sheet on authorized use and avoiding fraudulent respirators. (7/8/20) (New)
  • FEMA updated information on its temporary final rule on prioritization and allocation of certain scarce or threatened health and medical resources for domestic consumption. (7/6/20) (New)
  • The Federal Housing Administration (FHA) announced additional home retention measures to help homeowners with FHA-insured single family mortgages who are impacted by COVID-19. (7/8/20) (New)
  • The Federal Trade Commission (FTC) charged an online marketer with falsely promising consumers next-day shipping of facemasks and other personal protective equipment (PPE) to deal with COVID-19. The FTC alleges that the company sought to capitalize on the high demand for PPE and falsely claimed that they had PPE in stock with the slogan, “Pay Today, Ships Tomorrow.” The FTC’s complaint states that the company’s tactics violated the FTC Act and the Mail Order Rule, which requires that companies advertising that they can ship merchandise within a certain timeframe have a reasonable basis for the promised timeframe. The company allegedly also violated the Mailbox Rule by not notifying its consumers about the shipping delay, and not seeking their consent to delayed shipments, and not refunding their money. Moreover, the FTC asserts that the company’s merchandise were falsely advertised as “authentic” or “certified.” The U.S. Attorney’s Office for the Eastern District of New York levied claims concurrently that the company’s owner engaged in price gouging and mail and wire fraud. (7/8/20) (New)
  • A&B reviews what COVID-19 means for health mergers. (7/1/20)
  • The Department of Housing and Urban Development (HUD) has developed a toolkit on eviction prevention and stability. (7/8/20) (New)
  • The Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) issued a new poster for meat packing employers on worker safety. (7/8/20) (New)
  • DOL/OSHA issued guidance to reduce risk exposure for oil and gas workers. (7/7/20) (New)
  • DOL announced a series of July webinars on COVID-19 related sick leave for employers: (6/29/20)
  • July 14, 1:00pm – 3:00pm EDT
  • July 21, 1:00pm – 3:00pm EDT
  • July 28, 1:00pm – 3:00pm EDT
  • A&B offers a timely update on COVID-19 and what businesses need to know about corporate governance and the Insolvency Act of 2020. (7/6/20) (New)
  • The Department of Treasury and the IRS issued Notice 2020-54 on reporting qualified sick and family leave wages paid. (7/8/20) (New)
  • The Department of Treasury announced CARES Act aid for several airlines. (7/7/20) (New)
  • The Department of Treasury announced updates to the Main Street Lending Program. (7/7/20) (New)
  • The Department of Treasury and the IRS issued proposed guidance for consolidated groups regarding net operating losses (NOLs). (7/6/20) (New)

For background and the most up-to-date information, please visit the Centers for Disease Control and Prevention Coronavirus Disease 2019 website: HERE. The additional federal agency links are provided by the White House Coronavirus Task Force: What You Should Know:

Information for Businesses:

Information for Travel and Transportation:

Download PDF of Flash Update

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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