Coronavirus Flash Update - May 2020 #12

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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 FRIDAY, MAY 29, 2020

The Latest News

  • U.S. COVID-19 cases exceed 1,713,775 and 100,446 U.S. deaths. (Source: CDC) (Updated 5/29/20)
  • U.S. stock market: On Thursday the major benchmarks posted losses, with the Dow dropping 147 points, the S&P 500 losing 6 points, and the Nasdaq falling 43 points. (New)
  • The Department of Labor released its weekly jobs report which noted that 1 million filed new unemployment claims last week bringing the 10-week unemployment claims total to 40.8 million. The number of weekly claims has continued to drop since a peak of 6.9 million claims in April. (New)
  • The House of Representatives considered two small business related bills yesterday, overwhelmingly passing one bill, while failing the required two-thirds necessary to pass the second bill. The Small Business Aid Forgiveness Boost bill, R. 7010, passed the House by a vote of 417-1 and would extend the period of time Paycheck Protection Program (PPP) recipients would have to spend the loan in order to qualify for loan forgiveness. The current eight-week requirement could expire today for some loan recipients, but under H.R. 7010 businesses would have 24 weeks or until the end of the year, whichever comes first to spend the loan dollars and still qualify for forgiveness. The bill would also maintain forgiveness amounts for businesses that were unable to rehire employees or resume business levels by the end of the year and repeal the CARES Act provision that barred companies with forgiven PPP loans from deferring their payroll tax payments.
  • The Senate is expected to consider H.R. 7010 next week.
  • The second bill, which failed to pass, H.R. 6782, would have required the Small Business Administration to publish a report on assistance the agency has provided to businesses during the pandemic. (New)

COVID-19 Federal & State Legislation

  • Bill 4.0: The Senate was not in session this week, and the House largely focused on bills unrelated to COVID-19. The exception was its passage yesterday of H.R. 7010 to provide additional flexibility for the Paycheck Protection Program terms for loan forgiveness.
  • In other activity, the House Ways and Means Committee Chairman Richard Neal (D-MA) and Oversight Subcommittee Chairman John Lewis (D-GA) requested that the Department of Treasury provide the Committee with weekly reports on the disbursement of economic impact payments. (New)
  • Members of both bodies continue to discuss their priorities for the next emergency stimulus bill and whether to extend the unemployment benefit increase remains a key issue. As an alternative to extending the increase, Senator Rob Portman (R-OH) has proposed allowing workers who claimed unemployment to receive a $450 weekly bonus if they return to work before the end of July. Senator Majority Leader Mitch McConnell (R-KY) remains opposed to extending the unemployment benefit increase in the next relief bill. (New)
  • For the full details on the HEROES Act, H.R. 6800, which passed the House on May 15:
  • 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.
  • A&B detailed summaries are below:
  • 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”

  • State/Other Actions
    • For the latest information on state reopening decisions, see A&B 50-State Openings tracker - updated in each A&B Coronavirus Flash. (Updated 5/27/20)
  • Administration Actions
    • The Department of Transportation has announced plans to distribute 15 million face coverings for transportation workers to assist with the transition to reopening. (5/28/20) (New)
    • The Department of Veteran’s Affairs has announced it will resume in-person compensation and pension exams at select locations. (5/28/20) (New)
    • The Department of Labor’s Occupational Safety and Health Administration (OSHA) has posted guidance social distancing best practices for workers as businesses transition to reopening. (5/28/20) (New)
    • The Joint Commission released a statement that regular hospital certification and accreditation surveys would resume in June; however the process will incorporate new social distancing precautions. (5/27/20) (New)
    • OSHA has released guidance and launched a webpage to provide COVID-19 related recommendations to reduce exposure for construction employers and workers. (5/27/20) (New)
    • The FDA has updated its information on their Enforcement Policy for Face Masks and Respirators During the Coronavirus Disease Public Health Emergency. This updated information is intended to help expand the availability of general use face masks for the general public and workplace. (5/28/20) (New)
    • The HHS Assistant Secretary for Planning and Evaluation (ASPE) released a paper on Reducing Recidivism and Improving Reentry through Economic Impact Payments during the COVID-19 emergency. (5/26/20) (New)
    • FEMA has created a community mitigation decision support tool for the transition to reopening. (5/22/20)
    • The CDC issued a new detailed report on its activities and initiatives that support the transition to reopening. (5/20/20)
    • The CDC updated or released guidance for reopening:

Federal Communications Commission

  • The FCC approved another $18.22 million in telehealth applications. (5/28/20) (New)
  • The FCC approved an additional 43 funding applications for the COVID-19 Telehealth Program, totaling $16.78 million. (5/20/20)
  • The FCC and FTC sent warning letters to gateway providers for allegedly allowing COVID-19 pandemic-related scam robocalls into the United States. The agencies warned these companies to cut off this traffic or face serious consequences. (5/20/20)

Department of Health and Human Services

  • The Department of Health and Human Services (HHS) Coronavirus toolkit page has been updated. (Updated 5/22/20)
  • The HHS Office of the Inspector General (OIG) has released its Strategic Plan for Oversight of COVID-19 Response and Recovery. (5/26/20) (New)
  • HHS released a report to Congress on its COVID-19 Strategic Testing Plan as required by the Paycheck Protection Program and Health Care Enhancement Act. The report outlines 3 primary purposes for active testing: diagnostic testing, testing for contact tracing, and surveillance testing. (5/24/20)
  • HHS Biomedical Advanced Research and Development Authority (BARDA) announced an agreement with AstraZeneca to accelerate the development and manufacturing of the company’s investigational vaccine. The agreement is part of Operation Warp Speed. (5/21/20)
  • The HHS Office of the Assistant Secretary for Preparedness and Response (ASPR) has released a fact sheet on the COVID-19 impact on the health care delivery system. (5/26/20) (New)
  • ASPR has created a new online section detailing medical countermeasures under investigation by the Agency. (5/22/20) (New)
  • ASPR has a webpage detailing information on the remdesivir allocation process. (5/21/20)
  • ASPR released a Healthcare Facility Onboarding Checklist for hospitals and other facilities to use in streamlining staff acquisition and the onboarding process in times of need. (5/20/20)
  • ASPR also issued a request for information seeking industry input on the proposed strategy and structure of the strategic national stockpile. Responses are due by May 29. (5/15/20)
  • HHS has a tracking feature that allows public viewing of all COVID-19 HHS grants and cooperative agreement awards on its website. The grants were distributed through programs in the ACF, ACL, ASPR, CDC, DHHS/OS, HRSA, IHS, NIH, and SAMHSA. (Updated 5/27/20)

Centers for Disease Control and Prevention

Centers for Medicare & Medicaid Services

  • The Centers for Medicare and Medicaid Services (CMS) latest news alerts. (Updated 5/26/20)
  • And for the latest COVID-19 related CMS guidance and FAQs visit the CMS Current Emergencies webpage. (Updated 5/27/20)
  • CMS has updated their COVID-19 FAQ on Medicare Fee-for-Service which includes all topics like billing for testing, treatment, and different types of settings. (5/28/20) (New)
  • CMS has released Fact Sheet on Medicare, Medicaid, and CHIP payment methods for care provided at alternative testing sites under the direction of state and local governments and health care providers. (5/26/20) (New)
  • CMS has announced that over 1,750 standalone Medicare Part D prescription drug plans and Medicare Advantage plans have applied to offer lower insulin costs through the Part D Senior Savings Model for the 2021 plan year. (5/26/20) (New)
  • CMS has finalized requirements to increase access to telehealth for seniors in Medicare Advantage plans. (5/22/20) (New)

HHS/CMS/HRSA CARES Act Provider Relief Funds

  • HHS has completely revised its Provider Relief Fund webpage. The new webpage posts, for the first time, the breakdown by recipient of the $50 billion in targeted distribution. (5/28/20) (New)
  • The COVID-19 Provider Relief Fund – the A&B General Distribution Attestation and Application Process Guide has been updated. (Updated 5/27/20)
  • HHS released a statement extending the Provider Relief Fund attestation deadline for an additional 45 days. This allows providers 90 days from the date they received a payment to accept the Terms and Conditions or return the funds. (5/22/20)
  • HHS announced, jointly with the Indian Health Service, $500 million in payments to tribal hospitals, clinics and urban health centers. (5/22/20)
  • HHS issued a statement notifying eligible providers that they have until June 3, 2020 to submit their additional revenue information for payments from the Provider Relief Fund $50 billion General Distribution. (5/20/20)
  • HHS announced that it has begun distributing nearly $4.9 billion in additional relief funds to skilled nursing facilities (SNFs) to help them combat the devastating effects of the pandemic. HHS will make relief fund distributions to SNFs based on both a fixed basis and variable basis. All certified SNFs with six or more certified beds are eligible for this targeted distribution. (5/22/20)
    • HHS also provided the terms and conditions for accepting these SNF Relief Fund Payments. (5/22/20)
  • HHS has posted the SNF state-by-state payment breakdown. (5/22/20)
  • HHS updated the CARES Act Provider Relief Fund FAQs. (Updated 5/21/20)
  • The CMS Provider Relief Fund webpage has been updated and additional portals opened: (Updated 5/22/20)
  • The CARES Provider Relief Fund hotline is (866) 569-3522.

Food and Drug Administration

  • FDA provides a daily roundup on COVID-19 related actions. The latest announcements. (Updated 5/27/20)
    • FDA updated its FAQs on Testing for SARS-COV-2, including posting a list of antibody tests that are being removed from the “notification list” of tests being offered. (Updated 5/27/20)
    • FDA maintains its COVID-19 FAQs for the general public. (Updated 5/22/20)
    • The agency also maintains a public database of drug shortages. (Updated 5/28/20)
  • The FDA has issued guidance entitled “Effects of the COVID-19 Public Health Emergency on Formal Meetings and User Fee Applications” to address questions on formal meetings with industry, user fee application goals and timelines, and the prioritization of application reviews during the public health emergency. (5/28/20) (New)
  • The FDA issued two guidance documents to help address potential shortages of face masks, surgical masks, respirators, and face shields: Recommendations for Sponsors Requesting EUAs for Decontamination and Bioburden Reduction Systems for Face Masks and Respirators; and Enforcement Policy for Face Masks and Respirators. (5/27/20) (New)
  • The FDA has issued a letter to health care providers to remind health care employers and personnel the correct sterilization cycle associated with certain models of the Advanced Sterilization Products (ASP) STERRAD Sterilization Systems and to only decontaminate compatible N95 or N95-equivalent respirators during the pandemic. (5/27/20) (New)
  • The FDA has provided a SARS-CoV-2 reference panel tool to help with the development and evaluation of tests. (5/27/20) (New)
  • The FDA issued an Emergency Use Authorization for the CLEWICU System for use in the intensive care unit (ICU) as a diagnostic aid to assist with the early identification of adult patients who are likely to be diagnosed with respiratory failure which is a common complication associated with COVID-19. (5/27/20) (New)
  • The FDA issued guidance for FDA-regulated human food establishments – human food facilities and farms – to voluntarily notify the agency of temporary closures and significant reductions in operations and to request assistance during the pandemic. (5/27/20) (New)
  • The FDA released an updated list of medical devices approved to treat COVID-19. (5/26/20) (New)
  • The FDA updated its FAQs on Remdesivir. (5/22/20) (New)
  • The FDA announced it will provide temporary flexibility regarding eligibility criteria for the qualified exemption under the Produce Safety Rule. (5/22/20) (New)
  • FDA announced temporary flexibility for food labeling requirements for manufacturers and vending machine operators. (5/22/20) (New)
  • FDA and USDA released recommendations on addressing shortages of PPE, cloth face coverings, disinfectants and sanitation supplies in the food and agriculture industry. (5/22/20) (New)
  • The FDA has updated its policy for compounding of certain drugs for hospitalized patients by pharmacy compounders not registered as outsourcing facilities during the COVID-19 emergency. (5/21/20) (New)
  • The FDA issued guidance for supplements for approved premarket approval or humanitarian device exemption submissions. (5/21/20)
  • The FDA and U.S. Department of Agriculture announced a memorandum of understanding to help prevent interruptions at FDA-regulated food facilities. (5/19/20)

National Institutes of Health

  • The National Institutes of Health (NIH) released a statement that the investigational antiviral remdesivir is superior to the standard of care for the treatment of COVID-19, citing data from a report published in the New England Journal of Medicine. (5/22/20)

Health Resources and Services Administration

  • The Health Resources and Services Administration (HRSA) has awarded $15 million in COVID-19 assistance to 52 Tribes, Tribal organizations, urban Indian health organizations, and other services to Tribes in 20 states. The full list of COVID-19 Tribal award recipients is available here. (5/28/20) (New)
  • HRSA provided $225 million to Rural Health Clinics for COVID-19 testing through the Paycheck Protection Program and Health Care Enhancement Act. A state-by-state breakdown is available here. (5/20/20)
  • HRSA provides COVID-19-related information, resources, and FAQs here. (Updated 5/27/20)

Department of Homeland Security/FEMA

  • The Department of Homeland Security (DHS) posts a weekly roundup of its response to COVID-19. (Updated 5/25/20)
  • Federal Emergency Management Administration (FEMA) announced a distribution of non-contact infrared thermometers to state and local governments to assist in reopening. (5/26/20) (New)
  • FEMA announced suspension of rent collection for Butte County Camp Fire Survivors. (5/27/20) (New)
  • FEMA provided COVID-19 Pandemic Operational Guidance for the 2020 hurricane season. (5/20/20)

Department of Justice/Federal Trade Commission/Litigation

  • The Department of Justice announced that it charged an individual with fraudulently obtaining $20 million in PPP loans for two companies that had no employees. The defendant allegedly claimed that his companies were helping New York State obtain COVID-19 test kits and personal protective equipment. (5/21/20)
  • The Federal Trade Commission (FTC) sent warning letters to 50 more marketers nationwide to stop making unsubstantiated claims that their products and therapies can treat or prevent COVID-19. (5/21/20)

Department of Labor/OSHA

  • The Department of Labor (DOL) announced dislocated worker grant awards totaling nearly $24 million for workforce programs in Pennsylvania, Michigan, Maine, and Washington. (5/27/20) (New)
  • The DOL announced publication of a final rule that expands the ability of private sector employers to communicate retirement plan information online or by email. (5/21/20)
  • The Department of Labor announced a final rule that allows employers to pay bonuses or other incentive-based pay to salaried, nonexempt employees whose hours vary from week to week. The final rule clarifies that payments in addition to the fixed salary are compatible with the use of the fluctuating work week method under the Fair Labor Standards Act (FLSA). (5/20/20)

Small Business Administration

  • Small Business Administration (SBA) – In response to the CARES Act requirements, the SBA Paycheck Protection Program (PPP) website has updated its FAQs for lenders and borrowers. (Updated 5/27/20)
  • The SBA released the Paycheck Protection Program Loan Forgiveness process, which includes the application and instructions. (5/15/20)
  • The SBA updated its total loan statistics, noting that it has approved 4.5 million loans, totaling $510 billion in loans through 5,512 participating lenders. (Updated 5/28/20)
  • The SBA released a procedural notice informing PPP Lenders of the reporting process through which PPP Lenders will report on PPP loans and collect the processing fee on fully disbursed loans which they are eligible to receive. (5/21/20)
  • The SBA issued a PPP interim final rule, extending the safe harbor deadline to May 18, 2020. (5/20/20)

Department of Treasury/IRS/Federal Reserve

  • The Department of Treasury website for CARES Act business assistance programs.
  • The Department of Treasury has jointly announced with the SBA that $10 billion is being set aside of the Round 2 Paycheck Protection Program funding for use exclusively by Community Development Financial Institutions (CDFIs) to target relief to low-income communities. (5/28/20) (New)
  • The Internal Revenue Service (IRS) released information and FAQs on the use of prepaid debit cards which are being sent to some taxpayers for their economic impact payments, rather than a paper check. (5/27/20) (New)
  • The IRS announced a tax safe harbor for taxpayers developing renewable energy projects and producing electricity from wind, biomass, geothermal, landfill gas, trash, and hydropower. (5/27/20) (New)
  • The IRS posted the latest state-by-state list of economic impact payments. (5/22/20)
  • IRS announced that the 2020 IRS Nationwide Tax Forums will be held virtually in 2020 with a series of live-streamed webinars beginning this July. (5/21/20)
  • The Federal Reserve Board, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Office of the Comptroller of the Currency released principles for offering responsible small-dollar loans to meet financial institutions’ customers’ short-term credit needs. (5/20/20)

Other Agencies

  • The S. Department of Agriculture (USDA) announced that it is making available up to $1 billion in loan guarantees to help rural businesses meet their working capital needs during the coronavirus pandemic. (5/21/20)
  • The Department of Commerce Economic Development Administration has announced that applications would be accepted for competitive grant awards on a rolling basis to help communities prevent, prepare for, and respond to the pandemic. (5/27/20) (New)
  • The Consumer Financial Protection Bureau (CFPB) issued two “no-action” letter templates (template) to help homeowners and consumers seeking small dollar loans and wishing to avoid foreclosure in the process. (5/22/20)
  • A&B attorneys provide analysis on how the CFPB is responding to consumer complaints about mortgage and credit card terms during the pandemic. (5/18/20)
  • The Department of Defense has announced it has signed a $2.2 million contract with Hollingsworth & Vose to increase the U.S. domestic production of N95 ventilator filters starting in August. (5/28/20) (New)
  • For information on COVID-19 waste regulation and environmental compliance issues during the pandemic, read the A&B Environmental & Land Use Briefing. (5/22/20)
  • The Federal Housing Finance Agency (FHFA) announced that it is seeking comments on a notice of proposed rulemaking that would establish a new regulatory capital framework for Fannie Mae and Freddie Mac. (5/20/20)
  • The Transportation Security Administration (TSA) announced that it has implemented changes to the security screening process that reduce the potential for cross-contamination at the security checkpoint in an effort to help prevent the spread of COVID-19. (5/21/20)

Trade and International Business Issues COVID-19: global supply chains to expect major reshuffle COVID-19: global supply chains to expect major reshuffle COVID-19: global supply chains to expect major reshuffle COVID-19: global supply chains to expect major reshuffle COVID-19: global supply chains to expect major reshuffle

  • President Trump released an order restricting nearly all travel from Brazil for non-U.S. citizens if they were in the country during the prior 14-day period. Green card holders, close relatives of U.S. citizens, and flight crew members are exempt. (5/24/20) Further detail provided in a DHS release. (5/27/20) (New)

Insurance Issues

  • For a 50-state review of business interruption insurance related issues see this new COVID-19 Insurance Litigation and Regulatory Issues tracker. The tracker is updated weekly. (Updated 5/25/20)
  • On May 21, the National Association of Mutual Insurance Companies, jointly with other insurance industry trade associations, announced a proposal for a new federal program to assist businesses in the event of a future pandemic risk. The Business Continuity Protection Program would “provide revenue replacement assistance . . . following a presidential viral emergency declaration.” The program would be administered by the Federal Emergency Management Agency with assistance from private contractors.
  • The pace of new business income coverage claims flooding state and federal courts nationwide has not slowed over the last few weeks. Notable filings and orders include:
  • On May 22, Healthnow Medical Center Inc. filed suit in California state court against its insurer, State Farm General Insurance Company, alleging claims for breach of contract, bad faith, and unjust enrichment.Plaintiff alleges that State Farm wrongfully denied Plaintiff’s claim for lost business income arising out of the COVID-19 related governmental orders and seeks punitive damages. The case is Healthnow Med. Ctr. Ins. v. State Farm General Ins. Co., No. T20-1121 (Santa Clara Cnty. Sup. Ct., Cal.).
  • On May 21, Gervasi 1700 LLC brought suit in Ohio state court against National Trust Insurance Company, Franchise Insurance Agency Inc. dba Leavitt Group Midwest, and Bradley W. Stammler alleging that defendants Stammler and Leavitt group failed to disclose that the policy they procured for Plaintiff from defendant National Trust contained a virus and bacteria exclusion.Plaintiff alleges claims for breach of contract, bad faith and negligence. The case is Gervasi 1700 LLC v. National Trust Ins. Co., et al., No. 2020CV00818 (Stark Cnty. Ct. of C.P., Ohio).

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:

Information for Healthcare Providers, First Responders, and Research Facilities:

Information for Community Events and Gatherings:

Download PDF of the Flash Update

[View source.]

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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