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.
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UPDATED 9:00 AM ET ON FRIDAY, APRIL 24, 2020
The Latest News
- U.S. COVID-19 cases exceed 867,105 and 46,464 U.S. deaths. (Source: CDC) (Updated 4/24/20)
- U.S. stock market: Thursday ended with the major U.S. benchmarks posting mixed but stable results, with the Dow rising slightly at 39 points, and S&P and Nasdaq slipping just below even with 1.5 and 0.6 point losses. (New)
- The Department of Labor released the weekly unemployment report showing that 4.43 million Americans applied for unemployment benefits last week, bringing the five-week total to 26.5 million. (New)
- Late yesterday, the House of Representatives passed the Paycheck Protection Program and Health Care Enhancement Act by a vote of 388-5. This bill is the fourth coronavirus emergency relief bill and is called ‘3.5’ because the bill largely provides additional dollars for several key programs in the CARES Act, ‘3.0.’ This supplemental relief package includes $310 billion for the Paycheck Protection Program, $60 billion or the Economic Injury Disaster Loan program, $75 billion for health care providers (supplemental to previous $100 billion in the CARES Act), and $25 billion for COVID-19 testing. The Senate passed the bill by unanimous consent on Tuesday and the President is expected to sign it. (New)
- The House vote took nearly 90 minutes as the members were divided into 8 groups to limit the number of individuals on the floor at any one time to vote. The House voted similarly earlier in the day on passage of a bill to establish a Select Subcommittee on the Coronavirus Crisis. Added to the unprecedented proceedings the chamber was emptied and thoroughly cleaned between the two votes. An effort to allow House members to vote by proxy was dropped on Wednesday due to considerable opposition by House Republicans. (New)
- On Wednesday, President Trump signed an executive order temporarily “pausing,” for period of 60 days, certain U.S. immigration processes. This 60-day processing suspension does not apply to essential persons, U.S. citizen spouse or child, nurse, doctor, COVID-19 researcher, EB-5 investor, or other special person awaiting an IV appointment. This executive order also does not apply to any nonimmigrant visa (NIV- L-1, TN, H1B, E-2, E-3, etc.) processing or FN/persons currently in the green card process in the U.S. via adjustment of status. The President noted he would revisit the issue after 60 days and depending on the economy may choose to extend the suspension. (Updated on 4/24/20)
- HHS Secretary Alex Azar announced on Wednesday that the agency would be disbursing the remaining CARES Act Provider Relief Funds to health care providers. The CARES Act authorized $100 billion for the Provider Relief Act and the first $30 billion was previously distributed on April 10. Wednesday’s announcement outlined that the remaining $70 billion would be allocated in five categories: $20 billion would follow the distribution of the previous $30 billion distributed on April 10; $10 billion for hospitals in COVID-19 high impact areas; $10 billion for rural health clinics and hospitals; $400 million for the Indian Health Service; and $29.6 billion would be used for providers who solely take Medicaid patients, skilled nursing facilities, dentists, and reimbursement for the treatment of uninsured COVID-19 patients. (New)
- The Wednesday announcement also outlined the process for submitting data which is required to receive payment, and HHS released a statement late yesterday extending the data submission deadline to 3:00 pm ET on Saturday, April 25. (New)
- This detailed A&B Provider Relief Fund disbursements tracker provides a full overview of yesterday’s $70 billion disbursement and the previous $30 billion. (New)
COVID-19 Related Legislation
- Bill 4.0: Following passage of bill 3.5 last night, the drafting of and negotiations for 4.0 proposals will gain steam. The next emergency relief package is expected to be more comprehensive, and many members of Congress hope to make this the last coronavirus relief package. It is the focus of issues which have not been addressed in the previous relief bills, new areas of relief, possible technical corrections to earlier action, and many members hope to include their pre-pandemic legislative priorities. This relief package could see action during the first half of May. (New)
- Bill 3.5: Paycheck Protection Program and Health Care Enhancement Act, (R. 266) passed on April 23. Also available are a section-by-section summary and an overview of the health care provisions. (New)
- A&B detailed summaries are below:
- 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:
- A&B Summary – CARES Act Health Provisions
- A&B Overview – CARES Act Health Care Grants and Reimbursement Changes
- A&B Overview – CARES Act Key Health Care Appropriations
- A&B Analysis – CARES Act Funding Sources
- A&B Summary – CARES Act Small Business Provisions
- A&B Summary – CARES Act Educational Provisions and Appropriations
- A&B Summary – CARES Act Individual and Business Tax Provisions
- A&B Summary – CARES Act Unemployment Provisions
- A&B Summary – CARES Act Labor Provisions
- A&B Guide – how the CARES Act refundable Employer Retention tax credit for employers works
- A&B Hospital Provisions from all 3 relief bills tracker of COVID-19 (Updated on 4/23/20)
- A&B Provider Relief Fund disbursements tracker– Provider Relief Fund was established through the CARES Act, authorizing $100 billion in grants and will be disbursed from the ASPR Public Health and Social Services Emergency Fund (PHSSEF) (New)
- A&B Summary of oversight and enforcement provisions in the CARES Act
- 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
Key Administrative and Regulatory Actions Transition to “Opening Up”
- During a meeting with governors, President Trump released “Opening Up America Again” guidelines but left the decision of when his recommended phases should begin to state governments. (4/16/20)
- The Office of Personnel Management and Office of Management and Budget issued (4/20/20) a memorandum to federal agency and department heads to align operations with these national guidelines.
- On Sunday, CMS announced recommendations to re-open health care facilities to provide non-emergent non-COVID-19 care, including elective surgeries. The recommendations state that non-COVID-19 care should be offered as clinically appropriate if the state, locality, or facility has the resources to provide such care and the ability to quickly respond to a surge in COVID-19 cases if necessary. (4/19/20)
- A joint statement was released on April 17 by the American College of Surgeons, American Hospital Association, American Society of Anesthesiologists, and Association of periOperative Registered Nurses stating that “readiness to resume elective surgery will vary by geographic location” and outlining principles and considerations to guide the resumption of elective surgery and other procedures. (4/17/20)
- As state and local governments consider the transition to re-opening businesses, most are preparing for what might be their next steps to protecting health and safety of their work force while opening up.
- A&B’s Labor & Employment Group identifies issues likely to arise as workers are invited to return to their jobs and that employers may confront in developing return-to-work action plans in this advisory. (4/22/20) (New)
- This A&B advisory lays out what restarting might look like, including how to communicate to your employees, vendors and customers, and planning for continued health and safety issues. (4/17/20)
- The President announced several “Great American Economic Revival Industry Groups” made up of business executives, economists, academics, and others to “chart the path forward toward a future of unparalleled American prosperity.” (4/14/20)
Department of Defense
- The Department of Defense (DOD) announced (4/21/20) $133 million in contracts with 3M, O&M Halyard, and Honeywell to produce 39 million N95 masks over the next 90 days.
- The White House issued (4/20/20) a memorandum extending the authorization to permit state governors to use National Guard troops to respond to COVID-19.
Environmental Protection Agency
- On April 23, the Environmental Protection Agency (EPA) announced that it is advising eight technology companies that dealers are using their online platforms to sell illegal disinfectant products. (New)
- House committee chairs sent (4/21/20) a letter to EPA regarding its temporary COVID-19 enforcement policy, asking the agency to establish an end date for the policy, require facilities provide notice before endangering public health or the environment, post information on its website regarding changes to compliance obligations, and make sure staff have enough information to determine that an instance of non-compliance was caused by COVID-19.
- On April 17, EPA updated its coronavirus website to include new resources for state, local, and tribal agencies and intergovernmental associations. The website consolidates press releases, information on enforcement and compliance programs, water infrastructure, grants, and other applicable resources.
Federal Communications Commission
- The Federal Communication Commission (FCC) adopted a program appropriating $200 million in COVID-19 telehealth grants (the COVID-19 Telehealth Program) and $100 million in grants through the Connected Care Pilot Program to assist hospitals and other health care providers cover telehealth costs. (3/31/20).
- The funds for the telehealth grants were authorized by the CARES Act. Also see the FCC’s Report and Order for more information.
- The FCC suspended (4/21/20) its “red light” rule for the telehealth funding program, allowing applications to proceed even if entities are delinquent on payments to the FCC.
- The FCC COVID-19 Telehealth Program Application Portal opened on April 13. See here for more information, the application via the portal, details on eligibility determination and the use of a FCC Form 460 with the Universal Service Administrative Company (USAC). Register to obtain an FCC Registration Number (FRN) in the Commission Registration System (CORES); and register with System for Award Management in order to receive funding.
- The FCC also provided additional detail on the Connected Care Pilot Program. The selected pilot projects will be supported for a three-year funding period, with separate transition periods of up to six months before and after the funding period (up to four years total). Applicants may file using the ECFS, but also must send a courtesy copy of the application via email to ConnCarePltProg@fcc.gov.
- Additional details on the application, evaluation process and deadline can be found in the Report and Order.
Department of Health and Human Services
- The Department of Health and Human Services (HHS) has a COVID-19 Resources page.
- HHS Secretary Alex Azar renewed, effective April 26, 2020, the January 31, 2020 determination that a public health emergency exists and has existed since January 27, 2020, nationwide. (New)
- On Wednesday (4/22/20), HHS launched a new website to help health care providers use telehealth and educate patients on it. (New)
- On April 21, HHS, CMS, and the Office of the National Coordinator (ONC) finalized two rules regarding Interoperability and Patient Access to health data that had been initially posted in March. (New)
- The CMS final rule extends the implementation timeline for the admission, discharge, and transfer (ADT) notification Conditions of Participation (CoPs) to twelve months. CMS also finalized the Patient Access API and Provider Directory API policies for Medicare Advantage (MA), Medicaid, and the Children’s Health Insurance Program (CHIP) effective January 1, 2021. CMS will exercise enforcement discretion for a period of six months in connection with these two API provisions. CMS also finalized the Patient Access API for Qualified Health Plan (QHP) issuers on the individual market Federally-Facilitated Exchanges (FFEs) beginning with plan years beginning on or after January 1, 2021. (New)
- The ONC final rule implements certain provisions of the 21st Century Cures Act, including Conditions and Maintenance of Certification requirements for health information technology (health IT) developers under the ONC Health IT Certification Program (Program), the voluntary certification of health IT for use by pediatric health care providers, and reasonable and necessary activities that do not constitute information blocking. (New)
- HHS announced (4/21/20) nearly $1 billion in CARES Act grants to support older adults and persons with disabilities. A breakdown of the grants is available here.
- The Substance Abuse and Mental Health Services Administration (SAMHSA) announced (4/20/20) that it would begin releasing $110 million in emergency grant funding for substance use treatment and mental health services. Information on the grants is available here.
- HHS has a tracking feature that allows public viewing of all COVID-19 HHS grant and cooperative agreement awards on its website. The initial grants were distributed through programs in the ACL, CDCD, NIH, and ASPR.
Assistant Secretary for Preparedness and Response
- The Assistant Secretary of Preparedness and Response (ASPR) and CMS jointly released on Wednesday (4/22/20) a COVID-19 Workforce Virtual Toolkit to help state and local health care decision makers maximize workforce flexibilities when confronting COVID-19 in their communities. (New)
Centers for Disease Control and Prevention
- The CDC provides its latest guidance and COVID-19 FAQs. (Updated 4/23/20)
- The CDC announced (4/23/20) awards of $631 million to 64 jurisdictions through the existing Epidemiology and Laboratory Capacity for Prevention and Control of Emerging Infectious Diseases (ELC) cooperative agreement. CDC will use existing networks to reach out to state and local jurisdictions to access this funding for activities including contact tracing, enhanced testing capacity, protecting high-risk populations, and managing system capacity. (New)
- The CDC released (4/23/20) COVID19Surge, which is a spreadsheet-based tool that hospital administrators and public health officials can use to estimate the surge in demand for hospital-based services during the COVID-19 pandemic. A user of COVID19Surge can produce estimates of the number of COVID-19 patients that need to be hospitalized, the number requiring ICU care, and the number requiring ventilator support. The user can then compare those estimates with hospital capacity, using either existing capacity or estimates of expanded capacity. (New)
- CDC released (4/23/20) a Communication Toolkit for Transportation Partners to Inform Road Travelers. CDC created this road travel toolkit for transportation departments and other partners to help reach domestic travelers with COVID-19 prevention messaging during road travel.(New)
- The CDC announced (4/20/20) an extension of its March 20 order suspending travel of certain persons from countries with COVID-19 outbreaks.
- The CDC recently updated or issued several guidance documents and resources, including: interim guidance on safety practices for critical infrastructure workers who may have been exposed to a person with suspected or confirmed COVID-19; online FAQ for testing and reporting by laboratories; resources for businesses and employers; guidance for institutes of higher learning; guidance for cleaning and disinfecting public spaces, workplaces, businesses, schools, and homes; guidance for childcare programs; FAQs on healthcare infection prevention and control; information for airline catering kitchen workers; information for airport retail and food service workers; information for mail and parcel delivery drivers; information for rideshare, taxi, limo, and other passenger drivers; information for food and grocery pick-up and delivery drivers; information for firefighters and EMS providers; information for screening clients at homeless shelters (updated as of 4/21).
Centers for Medicare & Medicaid Services
- The Centers for Medicare and Medicaid Services (CMS) created a website location for COVID-19 stakeholder call recordings and transcripts, and the most recent daily CMS COVID-19 news alert on all actions can be found here (updated 4/23/20).
- CMS announced (4/21/20) extending the implementation timeline for the final rule on interoperability and patient access as to admission, discharge, and transfer notification conditions of participation by six months, meaning that the rules will now go into effect 12 months after the rule is published.
- Relatedly, CMS, HHS-OIG, and the Office of the National Coordinator for Health IT (ONC) issued (4/21/20) a press release announcing that they were exercising discretion to delay enforcement of parts of the final rule.
- CMS updated (4/21/20) its March 10 guidance to Medicare Advantage plans, Part D sponsors, and Medicare-Medicaid plans.
- CMS announced (4/20/20) that clinicians who participate in the Quality Payment Program (QPP) can earn Merit-based Incentive Payment System (MIPS) credit for participation in clinical trials using a drug or biological product to treat a patient with a COVID-19 infection.
- CMS announced that nursing homes would be required to inform residents, their families of COVID-19 cases in their facilities. The guidance will also require nursing homes to report cases of COVID-19 directly to the CDC. This measure augments requirements for reporting infectious disease to State and local health departments. (4/19/20)
- On March 30, CMS released an Interim Final Rule, which made numerous regulatory changes to provide additional flexibility for health care providers and temporarily remove certain limitations on care delivery. These changes have retroactive applicability to March 1. On April 9, CMS issued FAQs regarding this interim final rule. See this A&B Summary for the key details of the Interim Final Rule. (4/8/20)
CMS CARES Act Guidance
- The CARES Act Provider Relief Fund webpage has been updated to include the Attestation Portal. As a reminder, providers receiving payment from the initial $30 billion distribution must sign an attestation confirming receipt of the funds and agree to the Terms and Conditions within 30 days of payment. Additionally, CMS has set up a CARES Act Relief hotline: (866) 569-3522. Entities can also try contacting the Provider Hotline at the applicable MAC.
- On April 21, CMS issued guidance to issuers of individual, small group, Medicare Advantage, and Part D plans, addressing the flexibilities available related to utilization management and prior authorization during the COVID-19 public health emergency. (New)
- The new guidance for individual and small group health plans encourages issuers to utilize flexibilities related to utilization management processes, as permitted by state law, to ensure that staff at hospitals, clinics, and pharmacies can focus on care delivery and ensure that patients do not experience care delays. (New)
- The updated guidance for Medicare Advantage and Part D plans allows them to implement a number of additional flexibilities to help ensure MA and Part D enrollees do not experience disruptions in care or disruptions in pharmacy and prescription drug access. The guidance also implements important provisions of the CARES Act regarding coverage for COVID-19 testing and testing related services. (New)
- CMS has provided a summary document of COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers, all of which are in effect with a retroactive date of March 1, 2020. (Updated April 21, 2020).
- On April 10, CMS began distributing the initial $30 billion in COVID-19 relief funding to providers as part of the distribution of the $100 billion fund provided for the Public Health and Social Services Emergency Fund (PHSSEF) through the CARES Act. This initial distribution of funds will go to hospitals and providers currently enrolled in Medicare and take effect immediately.
- Facilities and providers are allotted a portion of the $30 billion based on their share of 2019 Medicare fee-for-service (FFS) reimbursements. Additional details can be found here. Updated Terms and Conditions available here and the portal to attest to Terms and Conditions released April 16, 2020.
- CMS Center for Medicaid and CHIP Services (CMCS) released (4/23/20) a COVID-19 Telehealth Toolkit to accelerate adoption of broader telehealth coverage policies in the Medicaid and Children’s Health Insurance Programs (CHIP). (New)
Food and Drug Administration (Drugs and Devices)
- FDA provides a daily roundup on COVID-19 related actions. The latest update is here, (revised 4/23/20), and here is a listing of all announcements.
- The agency published a public database of drug shortages.
- On Thursday, FDA issued guidance to provide a policy to help expand the availability and capability of non-invasive fetal and maternal monitoring devices to facilitate patient monitoring while reducing patient and health care provider contact and potential exposure to COVID-19 during the pandemic. (4/23/20) (New)
- On Wednesday, FDA issued guidance explaining a temporary policy regarding repackaging or combining propofol injectable emulsion products for treating and managing hospitalized patients during the COVID-19 public health emergency. (4/22/20) (New)
- On Monday, in response to a request from LabCorp to amend their original use Emergency Use Authorization (EUA), FDA reissued the EUA for the first diagnostic test with a home collection option. (4/20/20)
- FDA issued a guidance (4/20/20) explaining its temporary policy regarding state-licensed pharmacies and federal facilities (that are not outsourcing facility) compounding certain human drugs for hospitalized patients during the COVID-19 public health emergency.
- FDA has posted a webpage on convalescent plasma including links to additional resources. (4/18/20)
- The FDA announced an update on convalescent plasma, a potential COVID-19 treatment, and encouraging those who have recovered from COVID-19 to donate plasma to help others fight this disease. (4/16/20)
- The FDA launched a website to provide a process for the donation of plasma. (4/13/20)
- The FDA issued an emergency use authorization (EUA) to the STERIS Corporation to allow the company to employ its system to decontaminate compatible N95 or N95 equivalent respirators for reuse by health care workers in hospital settings. (4/10/20)
- Information regarding manufacturing, importing, or selling sterilizers, sanitizers, purifiers, and disinfectants is available in this A&B advisory (4/13/20).
- FDA has issued enforcement policies to increase the availability of ventilators and accessories, face masks and respirators, gowns, other apparel and gloves, sterilizers, disinfectant devices, and air purifiers, clinical electronic thermometers, infusion pumps and accessories, remote ophthalmic devices and monitoring devices, extracorporeal membrane oxygenation, cardiopulmonary bypass devices, and digital health devices for treating psychiatric disorders.
Food and Drug Administration and United States Department of Agriculture (Food-Related)
- The US Department of Agriculture (USDA) announced on Wednesday (4/22/20) that emergency benefit increases have reached $2.0 billion per month for Supplemental Nutrition Assistance Program (SNAP) households across all 50 states and 3 territories to increase food security during the coronavirus national emergency. These emergency benefits represent a 40% increase in overall monthly SNAP benefits, significantly increasing food purchasing power for American families. (New)
- For state-specific waivers and guidance, see this link. (Last updated 4/23/20) (New)
- USDA announced a $1.9 billion food assistance program to provide support for farmers, ranchers, and consumers. The program will provide direct support to farmers and ranchers, and it will purchase and distribute food. This assistance was authorized in FFCRA and CARES Act. (4/17/20)
- The FDA has posted tips for food shoppers to reassure consumers there is currently no evidence of human or animal food being associated with transmission of the coronavirus. (4/16/20)
- USDA’s Agricultural Marketing Service announced that for 60 days, beginning April 20, 2020, it will not take enforcement action against the retail sale of commodities that lack an appropriate country or origin or method of production label as required for covered commodities under COOL, provided the food does not make any country of origin or method of production claims. (4/13/20)
- USDA announced a resource guide for rural leaders on funding and partnership opportunities regarding COVID-19. (4/13/20)
- Department of Agriculture (USDA): USDA Rural Development Division has launched a resource page to help rural residents, farmers, and businesses stay current on the Agency actions related to COVID-19.
Health Resources and Services Administration
- The Health Resources and Services Administration (HRSA) on April 23 announced 52 awards of nearly $5 million to Poison Control Centers to improve their capacity to respond to increased calls due to the COVID-19 pandemic under the CARES Act. (New)
- On Wednesday, HRSA announced that it awarded nearly $165 million to combat the COVID-19 pandemic in rural communities. These investments will support 1,779 small rural hospitals and provide additional funding to 14 HRSA-funded Telehealth Resource Centers (TRCs) to provide technical assistance on telehealth to help rural and underserved areas combat COVID-19. (4/22/20) (New)
- HRSA provides COVID-19-related FAQs here. (Updated 4/22/20)
Department of Homeland Security/FEMA
- The Department of Homeland Security (DHS) provides a weekly roundup of its response to COVID-19. (Updated 4/21/20).
- DHS issued (4/20/20) a press release announcing that the United States, Mexico, and Canada had agreed to extend restrictions on non-essential travel across their shared borders for an additional 30 days.
- The DHS Cybersecurity Infrastructure and Security Agency (CISA) released updated guidance on Essential Critical Infrastructure Worksto help state and local jurisdictions and the private sector. CISA notes this version, “3.0 provides clarity around a range of positions needed to support the critical infrastructure functions laid out in the original guidance.” (Updated 4/21/20)
- FEMA released (4/22/20) guidance for how organizations should consider and manage their personal protective equipment (PPE) needs in non-health care settings while ensuring the protection of workers during the coronavirus (COVID-19) pandemic response. (New)
Department of Justice/Federal Trade Commission/State Attorneys General Antitrust
- On Monday, DOJ issued (4/20/20) its second expedited Business Review Letter (“BRL”) related to COVID-19 collaborations. This BRL, which is consistent with the first expedited BRL, confirms that the DOJ will not challenge AmerisourceBergen’s (a drug wholesaler) collaborative efforts to aid in distributing medications and other health care supplies to assist in responding to the COVID-19 pandemic.
- DOJ and FTC issued a joint statement reminding companies – especially those in the health care or other essential sectors – of the criminal and civil antitrust risks for colluding or sharing excessive confidential information about employment topics in light of COVID-19 (including changes to salaries/wages/benefits, employment terms, “no poach” agreements, or even invitations to rivals on those topics). (4/13/20)
- For more information, the A&B Antitrust and Labor & Employment Groups provide a deeper dive to understanding the safeguards businesses should implement to reduce their antitrust risks. (4/17/20)
- DOJ Antitrust Division and Federal Trade Commission (FTC) announced (3/24/20) they will be expediting their usual antitrust business review letter/informal opinion process on competitor collaborations to be done within 7 days (as opposed to the usual many months) of submission of information.
- For more information about this announcement, review this A&B summary (4/6/20).
- On April 22, the DOJ announced that an ongoing cooperative effort between law enforcement and a number of private-sector companies, including multiple internet domain providers and registrars, disrupted hundreds of internet domains used to exploit the COVID-19 pandemic to commit fraud and other crimes. The FBI’s Internet Crime Complaint Center (IC3) has reviewed more than 3,600 complaints of COVID-19 scams which have operated from websites advertising fake vaccines, operating fraudulent charity drives, delivering malware, and a variety of other scams. (New)
- Anyone who believes they were a victim of fraud involving COVID-19 can call the National Center for Disaster Fraud Hotline at 1-866-720-5721 or email email@example.com. If the fraud was a cyber scam, submit the complaint at https://www.ic3.gov. (4/22/20) (New)
- The Federal Trade Commission announced (4/21/20) that it has postponed its workshop seeking input on proposed changes to the Safeguards Rule under the Gramm-Leach-Bliley Act until July 13, 2020 and that the event will be held online. The virtual workshop will address amendments the FTC has proposed making to the Safeguards Rule, which requires financial institutions to develop, implement, and maintain a comprehensive information security program.
State Enforcement Actions
- On April 14, the Ohio Attorney General filed a lawsuit against an individual from northeast Ohio and his co-conspirators for hoarding N95 respirator masks and selling them online for nearly 18 times the retail price. The hoarding of an item and the related increase in prices of that item (price gouging) constitute an unreasonable and unlawful restraint of trade under the Valentine Act – Ohio’s antitrust law. For guidance and tips on how businesses can respond if they are victims of price gouging, read this A&B advisory. (3/26/20)
Department of Labor/EEOC
- Department of Labor (DOL) sent (4/17/20) a letter to Senator Wyden clarifying that independent contractors are eligible for COVID-19 unemployment benefits under the CARES Act.
Occupational Safety and Health Administration
- The Occupational Safety and Health Administration (OSHA) issued (4/20/20) guidance for the construction
- OSHA issued (4/13/20) guidance for package delivery workers to protect against COVID-19. OSHA previously issued (4/6/20) a workplace poster on how to reduce the risk of exposure to coronavirus.
- Trying to make sense of all these changes? DOL has released additional questions and answers as guidance for the provisions required by FFCRA. A&B provides a complete overview and analysis (4/7/20).
Securities and Exchange Commission
- The Securities and Exchange Commission (SEC) announced (4/20/20) that it was issuing two exemptive orders to address the impact of COVID-19 regarding Consolidated Audit Trail (CAT) implementation. The orders are available here and here.
- SEC chairman and director of corporation finance released a statement encouraging earning disclosures and reports that timely, accurate, and robust. (4/8/20) The SEC staff released a statement on the same topic on April 14.
- For additional information on challenges regarding disclosures and COVID-19, review this A&B advisory (4/13/20).
- The SEC issued updated guidance (4/7/20) on conducting shareholder meetings in light of COVID-19 concerns.
- For an analysis of changes the Institutional Shareholder Services (ISS) has made to its voting recommendations policies in light of the coronavirus pandemic see this A&B advisory. (4/10/20)
Small Business Administration
- Small Business Administration (SBA) – In response to the CARES Act requirements, the SBA formally launched its Paycheck Protection Program (PPP) for small businesses on April 3.
- The Department of Treasury and SBA released a joint statement summarizing the PPP’s activity: assistance was given to more than 1.6 million small businesses in all 50 states; nearly 5,000 lenders participated; 20% of the amount approved was processed by lenders with less than $1 billion in assets, and approximately 60% of the loans were approved by banks with $10 billion of assets or less; no lender accounted for more than 5% of the total dollar amount of the program; and 74% of the loans were for under $150,000. (4/17/20)
- The Small Business Administration exhausted the $350 billion funding authorized by the CARES Act which operated on a first come first serve basis as long as the funding lasted. Congressional negotiations continue on an interim relief package including funds to replenish the loan programs funds, and an agreement appears to be near. (4/20/20)
- The SBA released (4/20/20) reports providing a breakdown of loans and advances under the Economic Injury Disaster Loan program.
- The SBA has guidance (4/1/20) for loans under the Paycheck Protection Program, the Express Bridge Loan Pilot Program, the Economic Injury Disaster Loan Program for qualified entities that are impacted by COVID-19. The application for its economic injury federal disaster loans can be found here.
- The SBA, in consultation with the Treasury Department, updated its published FAQs addressing the Paycheck Protection Program. One additional requirement is that a borrower must “certify in good faith that their PPP loan request is necessary.” Borrowers that applied for a PPP loan prior to the issuance of this guidance and repays the loan in full by May 7, 2020 will be deemed to have made the required certification in good faith. (Updated 4/23/20)
- Complete details on each of the SBA CARES Act programs can be found here.
- For a deeper dive on the funding streams available for SBA loans in the CARES Act, review this A&B publication (4/1/20).
- Treasury and the SBA issued an interim final rule (4/14/20) on how self-employed and independent contractors can apply for PPP loans.
- For information on how fund managers can qualify for relief, review this A&B advisory. (4/14/20)
- A&B’s Financial Restructuring & Reorganization Group has provided proactive steps creditors can take now to prepare for whatever comes after the coronavirus pandemic subsides in this advisory (4/9/20). For more on how the CARES Act impacts the banking industry, including takeaways for lenders and on regulatory relief and mortgage-related provisions, read this A&B advisory (3/30/20).
Department of Treasury/IRS/Federal Reserve
- The Department of Treasury website for CARES Act programs, including specific sections on assistance for American workers and families, small businesses, state and local governments, and preserving jobs for American industry.
- The Federal Reserve announced temporary actions aimed at increasing the availability of intraday credit extended by Federal Reserve Banks. (4/23/20) (New)
- The Department of Treasury and Internal Revenue Service (IRS) announced (4/21/20) cross-border tax guidance related to travel disruptions. These include guidance regarding determining U.S. tax residency, guidance on qualification for exclusions from gross income, and an FAQ for nonresident aliens and foreign corporations on prolonged presence in the U.S. due to COVID-19.
- The Department of Treasury announced (4/20/20) Payroll Support Program agreements with Allegiant Air, American Airlines, Delta Air Lines, Southwest Airlines, Spirit Airlines, and United Airlines and announced that several other airlines planned to participate (Alaska Airlines, Frontier Airlines, Hawaiian Airlines, JetBlue Airways, and SkyWest Airlines).
- Ginnie Mae announced an expansion of its issuer assistance program to help mortgage servicers facing liquidity shortfalls to apply for assistance in meeting their contractual obligations. (4/10/20)
- The APM introduces a new version of the existing Pass-Through Assistance Program (PTAP) for use by issuers facing a temporary liquidity shortfall directly attributable to the COVID-19 National Emergency. The existing PTAP program had been tailored to natural disaster situations with more limited impact.
- For more details on how Ginnie Mae will be implementing the Pass-Through Assistance Program during the coronavirus pandemic, see this A&B advisory (4/16/20).
- The Federal Reserve announced (4/9/20) that it will launch a lending program for mid-sized businesses hurt by the coronavirus, called the Main Street Lending Program. The new program will provide up to $600 billion in loans to eligible businesses through two facilities.
- A brief overview and comparison of the two Main Street programs can be found here.
- For more information about the Main Street programs, review this A&B advisory. (4/14/20)
- The Internal Revenue Service (IRS) issued Revenue Procedure 2020-26, which provides safe harbors for payment forbearances (and “related modifications”) arising from the COVID-19 emergency on mortgage loans held by real estate mortgage investment conduits (REMICs) and investment trusts and on mortgage loans contributed to REMICs. (4/13/20)
- For a deeper dive on this topic, see this A&B advisory (4/15/20).
- Responding to requests for relief from the Real Estate Roundtable and others, the IRS issued Revenue Procedure 2020-23 on April 8 to address technical issues that would have limited the ability of partnerships and their partners to benefit from retroactive CARES Act provisions.
- Read this A&B advisory for additional information. (4/9/20).
- The CFPB, Federal Reserve, FDIC, the National Credit Union Administration (NCUA), the OCC, and state banking regulators issued (4/3/20) a joint statement on supervisory and enforcement practiced regarding mortgage servicing rules regarding COVID-19 and the CARES Act. For additional details on the joint statement, review this A&B advisory (4/6/20).
- In a joint statement (3/22/20), the federal financial institution regulatory agencies and state banking regulators encouraged financial institutions to work constructively with borrowers affected by COVID-19 and provided additional information regarding loan modifications.
- To understand how federal regulators are clarifying the CARES Act interaction with previous statements on loan modifications and reporting read this A&B advisory. (4/9/20).
- Department of Education (DOEd) announced (4/23/20) that more than $13.2 billion in emergency relief funds are now available to state and local education agencies to support continued learning for K-12 students whose educations have been disrupted by the coronavirus. (New)
- The Federal Housing Finance Agency (FHFA) announced that Federal Home Loan Banks (FHL Banks) can accept Paycheck Protection Program (PPP) loans as collateral when making loans, called advances, to their members. (4/23/20) (New)
- On April 21, the FHFA announced that it was aligning Fannie Mae’s and Freddie Mac’s policies so that servicers of Fannie Mae and Freddie Mac single-family mortgage loans that are in forbearance as a result of COVID-19 will only have an obligation to advance four months of missed principal and interest payments. (New)
- For a deeper dive on this topic, see this advisory from A&B’s Finance Group. (4/22/20) (New)
- The Department of Housing and Urban Development (HUD) announced (4/21/20) that it had issued a notice awarding $1.5 million in funding to support fair housing activities during COVID-19.
- HUD also provided COVID-19 FAQs for Public Housing Agencies. (updated 4/22/20)
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
- WTO report finds growing number of export restrictions in response to COVID-19 crisis. Eighty countries so far have introduced export prohibitions or restrictions as a result of the COVID-19 pandemic according to a new report by the WTO Secretariat. The report highlights the current lack of transparency at the multilateral level and long-term risks that export restrictions pose to global supply chains and public welfare. (New)
- Bipartisan Letter to USTR Asks for Immediate Action on Section 301 Exclusions for Medical Goods. The evaluation of exclusion requests related to COVID-19 is too slow, according to Senators in an April 20 letter asking that the USTR eliminate duties on all imports covered by Section 301 that are needed to fight the pandemic. Sen. Pat Toomey, R-Pa., and Sen. Tom Carper, D-Del: “Time is of the essence, and these exclusions should be issued as soon as possible.” (New)
- FEMA refines scope of medical supply export ban. The Federal Emergency Management Agency offered more details on its plans for exemptions to a temporary rule banning some medical supplies from being shipped overseas. In an April 21 Federal Register notice, FEMA codified and tailored the exemptions, which provide a path for some exporters to make sales of medical products not in high demand in the U.S. See A&B advisory about it here. (New)
- 22 countries agree to keep agricultural trade flowing amid pandemic. The U.S., European Union, Japan, Brazil, and 19 other WTO members agreed on Wednesday to maintain “open and predictable trade” in agricultural goods amid the novel coronavirus pandemic by securing supply chains, not imposing export restrictions, and exercising restraint in creating food stocks,” the 23 members wrote in a communication to the WTO. (New)
- A&B European Antitrust, Mergers & Acquisitions, and International Trade & Regulatory Groups examines (4/21/20) changes in the way European competition authorities will review foreign direct investment during (and potentially long after) the coronavirus pandemic and reviews what COVID-19 may mean for European commercial mortgage-backed securities servicers.
- A&B’s International Tax Group investigates the nuances of regulations from U.S. and international agencies and offers useful guidance from the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations and actions enterprises can take now to prepare for the tax implications of COVID-19-related disruptions in this advisory (4/16/20).
- 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. (last update 4/19/20)
- Litigation relating to business interruption coverage in the wake of the COVID-19 pandemic and related civil authority orders is picking up steam. More than two dozen new lawsuits have been filed against insurers in both state and federal courts. These lawsuits consist of both declaratory judgment actions seeking clarification as to whether policy terms will cover COVID-19 related business interruption claims as well as actions seeking damages for breach of insurance contract and bad faith. Notably, there has been a stark increase in the number of class action lawsuits filed. Meanwhile, at least one insurer—Travelers—has filed suit against an insured seeking a declaration that it does not have an obligation to pay COVID-19 related business interruption claims. Finally, several plaintiffs including LH Dining LLC and Newchops Restaurant Comcast LLC have asked the Judicial Panel on Multidistrict Litigation to establish an MDL to consolidate nationwide COVID-19 related business interruption coverage lawsuits. (updated 4/23/2020)
Notable filings include:
- On April 21, Town Kitchen LLC initiated a class action suit against its insurance underwriters at Lloyd’s London in Florida state court alleging that Defendants had denied coverage for losses plaintiffs’ suffered as a result of COVID-19 induced closures. (New)
- On April 21, Jennifer Nguyen initiated a class action against insurer Travelers Casualty Insurance Company of America alleging that as a result of the COVID-19 pandemic and state mandated business closure, plaintiff has been unable to provide dentistry services; however, she was allegedly informed by the insurer that losses resulting from the closure will not be covered under her Travelers Businessowners’ Policy. Plaintiff seeks both declaratory relief and damages for breach of contract and intends to seek certification of nationwide Business Income Coverage, Extra Expense Coverage, Extended Business Income Coverage, and Civil Authority Coverage classes. The case is Nguyen et al. v. Travelers Casualty Insurance Company of America, No. 2:20-cv-597 (W.D. Wash.). (New)
- On April 22, SA Palm Beach LLC initiated a class action against its insurance underwriters at Lloyd’s London in federal district court. Plaintiffs seek both declaratory relief establishing plaintiffs rights to business interruption coverage, civil authority coverage, and extra expense coverage triggered by state-mandated business closures under the policy as well as damages for breach of contract. Plaintiff seeks to certify both a nationwide class and a Florida sub-class. The case is SA Palm Beach et al v. Certain Underwriters at Lloyd’s London et al., No. 9:20-cv-80677 (S.D. Fla.). (New)
- On April 22, Dakota Girls LLC dba The Goddard School of Grove City and others filed suit against Philadelphia Indemnity Insurance Company in federal district court alleging that Defendant wrongfully denied business interruption coverage for losses associated with COVID-19 closures. Plaintiff seeks damages for breach of contract and bad faith, as well as a declaratory judgment that Defendant is obligated to pay the claimed losses for business interruption associated with the COVID-19 pandemic. The case is Dakota Girls, LLC et al. v. Philadelphia Indemnity Insurance Company, No. 2:20-cv-02035 (S.D. Ohio). (New)
Additional Workplace (Stay-at-Home) Issues
- Government Closure/Stay-at-Home orders have been released in multiple state and local jurisdictions. For the key Stay-at-Home order details in one document, view this A&B COVID-19 50-State Closure Tracker here. (FINAL Tracker – Current as of 4/21/20)
- Review this A&B advisory (4/21/20) to learn more about how shelter-in-place orders and the continuing economic stoppage is likely to trigger both monetary and covenant defaults of countless obligors under CMBS, bridge, construction, and agency loans over the next several months.
- The COVID-19 pandemic has forced a greater awareness of force majeure clauses in commercial leases and it has been essential to have a good foundation of the basics which can be found in this A&B guide to force majeure basics. (4/17/20)
Cyber Security & Privacy
- The Federal Trade Commission issued recommendations for businesses on how to reduce privacy and data security risks while video conferencing. These tips range from limiting participants, to establishing preferred video conferencing business practices, to carefully checking that links are not security threats before sharing or clicking on them. (4/16/20)
- The United States Senate held a “paper hearing” on using big data in the fight against COVID-19. Opening statements and questions are available here. (4/9/20)
- This A&B advisory (4/7/20) discusses the current COVID-19 cybersecurity threat landscape, including scams that target individuals, attempts to compromise company systems, telework vulnerabilities, and business email compromise.
- Governments world-wide are using location and other mobile device data to slow the spread of COVID-19. We analyze these efforts in this A&B advisory. (4/13/20)
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: U.S. Department of Health and Human Services:
Centers for Disease Control and Prevention:
What you should know:
- Workplace, School, and Home Guidance
- People at Risk for Serious Illness from COVID-19
- How COVID-19 Spreads
- Steps to Prevent Illness
- Frequently Asked Questions
- What to Do If You Are Sick with COVID-19
- Stigma Related to COVID-19
- Facts about COVID-19
- Information for People at Higher Risk and Special Populations
- Communication Resources
- Situation Summary
- Cases in the U.S.
- Global Locations with COVID-19
- Risk Assessment
- CDC in Action: Preparing Communities
- Interim Guidance for Businesses and Employers
- Information for Communities, Schools, and Businesses
- Environmental Cleaning and Disinfection Recommendations – Community Facilities
- FEMA: Coronavirus Response
- SBA: COVID-19 Resources
- DOL: Guidance for Preparing Workplaces for Coronavirus
- DOL: OHSA Resources for Workers and Employers on COVID-19
- WHO: Get Your Workplace Ready for COVID-19
- CISA: Risk Management for COVID-19
- EPA: Disinfectants for Use Against COVID-19
- Federal Reserve: Coronavirus Disease 2019 (COVID-19) Resources.
- FDIC: Coronavirus (COVID-19) Information for Bankers and Consumers.
- OCC:COVID-19 (Coronavirus).
- Conference of State Bank Supervisors: Information on COVID-19 Coronavirus.
- NYDFS: Coronavirus: Information for Industry and Regulated Entities.
- NMLS: State Agency Communication/Guidance on Coronavirus/COVID-19
Information for Travel and Transportation:
- Information for Travel
- Guidance for Ships
- Guidance for Airlines and Airline Crew
- State: Travel Advisories
- State: Traveler’s Checklist
- State: Smart Traveler Enrollment Program
- DOT: FAQs from FTA Grantees Regarding COVID-19
Information for Health Care Providers, First Responders, and Research Facilities:
- Information for Healthcare Professionals
- Resources for State, Local, Territorial and Tribal Health Departments
- Resources for Healthcare Facilities
- Infection Prevention and Control Recommendations for Patients with COVID-19 or Persons Under Investigation in Healthcare Settings
- Information for Laboratories
- Resources for First Responders
- Guidance for Public Health Professionals Managing People with COVID-19 in Home Care and Isolation Who Have Pets or Other Animals
- FAQs and Considerations for Patient Triage, Placement and Hospital Discharge
- What Law Enforcement Personnel Need to Know
- Guidance for Homeless Shelters
- Guidance for Hemodialysis Facilities
- CMS: Information on COVID-19 and Current Emergencies
- CMS: Guidance for Hospice Agencies
- CMS: Emergency Medical Treatment and Labor Act Requirements and Implications Related to COVID-19
- CMS: FAQs for State Survey Agency and Accrediting Organizations
- EPA: Disinfectants for Use Against COVID-19
Information for Law Enforcement:
Information for Families and Households:
- Information on COVID-19 for Pregnant Women and Children
- Interim Guidance for Household Readiness
- Environmental Cleaning and Disinfection Recommendations for U.S. Households
- Guidance for Preventing the Spread of COVID-19 in Homes and Residential Communities
- FAQ: COVID-19 and Children
- EPA: Disinfectants for Use Against COVID-19
Information for Schools and Childcare Providers:
- Interim Guidance for Administrators of U.S. Childcare Programs and K-12 Schools
- Resources for Institutes of Higher Education
- Environmental Cleaning and Disinfection Recommendations – Community Facilities
- USDA: USDA Makes It Easier, Safer to Feed Children in California Amid Coronavirus Outbreak
- EPA: Disinfectants for Use Against COVID-19
- DOE: Resources for Schools and School Personnel
Information for Community Events and Gatherings:
- Interim Guidance for Mass Gatherings and Large Community Events
- Interim Guidance for Community- and Faith-Based Organizations
Agency Resources and Information:
- U.S. Department of Health and Human Services
- Centers for Medicare and Medicaid
- U.S. Food & Drug Administration
- U.S. Department of Agriculture
- U.S. Department of Defense
- U.S. Department of Education
- U.S. Department of Energy
- U.S. Department of Homeland Security
- U.S. Department of Labor
- U.S. Department of State
- U.S. Department of Veterans Affairs
- U.S. Environmental Protection Agency
- U.S. Small Business Administration
Alston & Bird Coronavirus Links
- Alston & Bird Coronavirus Task Force Web page
- To Subscribe to Alston & Bird Advisories
- For Alston & Bird COVID-19 Insights and Events
- Previous Alston & Bird Coronavirus Advisories (not included in the above)
- April 3
- April 2
- April 1
- March 31
- March 30
- March 27
- Utilization of Electronic Signatures and Records: What You Need to Know
- SEC Extends Conditional Filing Relief to Companies Affected by COVID-19
- COVID-19: What It May Mean for Landlords and Lenders Under Their CRE Facility Agreements
- Congress Further Expands Medicare Telehealth Benefits with the CARES Act
- March 26
- March 25
- Is the COVID-19 Outbreak an “Act of God”? Why It May Matter for Your Contracts
- FDA and USDA Food Safety Response to COVID-19 & DHS “Critical Infrastructure” Classification of Food and Agriculture Sector
- Does Your Force Majeure Provision Extend to the Coronavirus?
- Competition Authorities Across Europe Relax Competition Law Enforcement During COVID-19 Outbreak
- COVID-19 Impacts Antitrust Deal Reviews: New Procedures and Delays
- March 24
- March 23
- March 20
- March 19
- Antitrust / Mergers & Acquisitions Advisory: COVID-19 Impacts Antitrust Deal Reviews: New Procedures and Delays
- Construction Advisory: Five Best Practices for Construction Industry Stakeholders During the Coronavirus Pandemic
- Labor & Employment Advisory: Employee Leave Requirements Under the Families First Coronavirus Response Act
- Labor & Employment / Health Care Advisory: Coronavirus (COVID-19) FAQs for Employers
- March 18
- March 17
- March 16
- March 13
- March 12
- March 10
- March 6
- March 5
- February 28