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 MONDAY, APRIL 27, 2020
The Latest News
- U.S. COVID-19 cases exceed 961,000 and 54,400 U.S. deaths. (Source: CDC) (Updated 4/27/20)
- U.S. stock market: On Friday the markets finished up for the day, with the Dow rising 260 points and S&P 500 up 38 points, but each ended the week down by 1.9 and 1.3%, respectively. The Nasdaq gained 139 points for the day but ended the week down slightly at 0.2%. Weekend trading in stock futures were pointing to slight declines as of Sunday night.(New)
- The Congressional Budget Office has released its current economic projections for fiscal year 2020 and 2021 and the projections include: inflation-adjusted GDP is expected to decline by about 12 percent; interest rateson 3-month Treasury bills and 10-year Treasury notes are expected to average 0.1 percent and 0.6 percent, respectively, during that quarter; the federal budget deficit is projected to be $3.7 trillion; and the federal debt held by the public is projected to be 101 percent of GDP by the end of the fiscal year. (4/24/20) (New)
- The Small Business Administration (SBA) will begin accepting Paycheck Protection Program (PPP) loan applications again today at 10:30am ET with the $320 billion in additional funds authorized by the Paycheck Protection Program and Health Care Enhancement Act passed last week. (New)
- The SBA noted a change in a Sunday email to lenders which included a limit on the maximum dollar amount of loans each bank can issue at 10% of funding authority of the PPP. Additional details are not yet available. (4/26/20) (New)
- Centers for Medicare and Medicaid Services (CMS) announced on Sunday that it is suspending its Advance Payment Program to Part B suppliers effective immediately and applications would no longer be received. The Agency is also reevaluating the amounts that will be paid under its Accelerated Payment Program but will continue to receive applications. (4/26/20) (New)
COVID-19 Related Legislation
- Bill 4.0: Following passage of bill 3.5 last week, 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.
- Bill 3.5: Paycheck Protection Program and Health Care Enhancement Act, (R. 266) passed on April 23 and signed by the President 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:
- 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 (Updated 4/24/20)
- 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 4 bills tracker of COVID-19 (Updated 4/26/20)
- A&B Provider Relief Fund disbursements tracker– Provider Relief Fund was established through the CARES Act, with additional funds from Bill 3.5. (Updated 4/26/20)
- 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
Transition to “Reopening”
- For the latest information on state reopening decisions, see the new A&B 50-State Openings Tracker to be updated with each A&B Coronavirus Flash Update. (Updated 4/24/20) (New)
- Governors are preparing when and how to reopen, and the National Governor’s Association has released a report called Roadmap to Recovery: A Public Health Guide for Governors which includes a 10 step approach. (4/22/20) (New)
- The National Retail Federation and Retail Industry’s Leaders Association has released its "blueprint" for reopening. (4/26/20) (New)
- 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)
- 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.
- 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 reopening.
- 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)
- 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)
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.
Environmental Protection Agency
- 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. (4/23/20)
- 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.
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. On April 23, the FCC announced the third set of health care providers to receive telehealth grants.
- The FCC suspended its “red light” rule for the telehealth funding program, allowing applications to proceed even if entities are delinquent on payments to the FCC. (4/21/20)
- 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. Applicants may file using the ECFS, but also must send a courtesy copy of the application via email to ConnCarePltProg@fcc.gov.
Department of Health and Human Services
- The Department of Health and Human Services (HHS) coronavirus resources page has been updated. (4/24/20) (New)
- 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.
- The HHS Office of Inspector General (OIG) has released FAQs regarding the application of OIG's administrative enforcement authorities, including the federal anti-kickback statute and civil monetary penalty (CMP) provision prohibiting inducements to beneficiaries (Beneficiary Inducements CMP). (4/23/20) (New)
- 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. (4/21/20)
- 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 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. (4/22/20)
Centers for Disease Control and Prevention
- The Centers for Disease Control and Prevention (CDC) COVIDView Weekly Summary is available. (4/24/20) (New)
- The CDC has updated its list of coronavirus symptoms. (4/24/20) (New)
- The CDC provides its latest guidance and COVID-19 FAQs. (4/23/20)
- The CDC announced 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. (4/23/20)
- The CDC released 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. (4/23/20)
- CDC released 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.(4/23/20)
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 has released updated FAQs on Medicare fee-for-service billing. (4/24/20) (New)
- CMS released a statement that the Nursing Home Compare inspection domain will be held constant temporarily due to the prioritization and suspension of certain surveys to ensure the rating system reflects fair information for consumers, and they will be releasing average daily staff totals for each nursing home. (4/24/20) (New)
- CMS announced an extension 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. (4/21/20)
- 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 CARES Act Guidance
- The CARES Act Provider Relief Fund webpage has been updated to include the Attestation Portal.
- HHS Providers that do not receive an automatic payment should go to the Provider Relief portal linked from gov/providerrelief and follow the instructions on how to claim the distribution. The portal became available beginning 5:00 p.m. ET, Friday, April 24. The CARES Provider Relief hotline is (866) 569-3522. Entities can also try contacting the Provider Hotline at the applicable MAC.
- HHS announced on April 22 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. This 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.
- This CARES Act Relief Fund website provide additional detail on the terms and conditions, and the portal reflects the information required. (4/24/20) (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.
- The CARES Act required CMS to expand its accelerated and advance payment program, and CMS released a statement and fact sheet providing guidance on the policy. (3/28/20) According to the latest CMS update – over $100 billion has been distributed as of April 24.
- CMS announced on Sunday that it is suspending its Advance Payment Program to Part B suppliers effective immediately and applications would no longer be received. The Agency is also reevaluating the amounts that will be paid under its Accelerated Payment Program but will continue to receive applications. (4/26/20) (New)
- CMS released a state-by-state list showing the breakdown of receipt of accelerated and advance payments as of April 4. (Updated 4/24/20)
- CMS announced the interest rate on overdue and delinquent debts for Q3 of Fiscal Year 2020 (April-June) – 625% (updates the prior quarter’s interest rate of 10.25%).
- 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. (4/21/20)
- 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 4/21/20).
- 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).
Food and Drug Administration (Drugs and Devices)
- FDA provides a daily roundup on COVID-19 related actions. The latest update is here, (revised 4/24/20), and here is a listing of all announcements.
- The agency published a public database of drug shortages. (Updated 4/26/20)
- FDA issued a Drug Safety Communication regarding known side effects of hydroxychloroquine and chloroquine that have been reported with their use for the treatment or prevention of COVID-19. (4/24/20) (New)
- FDA issued guidance to expand the availability and capability of medical x-ray, ultrasound, magnetic resonance imaging systems, and image analysis software that are used to diagnose and monitor medical conditions while mitigating circumstances during the diagnosis and treatment of COVID-19. (4/23/20) (New)
- 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)
- 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)
- 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 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. (4/22/20)
- For state-specific waivers and guidance, see this link. (Last updated 4/23/20)
- 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. (Updated 4/23/20)
Health Resources and Services Administration
- The Health Resources and Services Administration (HRSA) will launch its new COVID-19 Uninsured Program Portal on Monday, April 27. The portal will provide guidance to health care providers to request reimbursement for the testing and treatment for uninsured COVID-19 patients. (4/27/20) (New)
- HRSA 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. (4/23/20)
- HRSA launched a new website to help health care providers use telehealth and educate patients on it. (4/22/20)
- 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)
- HRSA provides COVID-19-related FAQs here. (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 has released a fact sheet summarizing the agency’s research and development regarding COVID-19. (4/24/20) (New)
- 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. The President noted he would revisit the issue after 60 days and depending on the economy may choose to extend the suspension. (4/22/20)
- 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.
- FEMA refines scope of medical supply export ban. The FEMA 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.
- 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.” (4/21/20)
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)
- 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.
- In response to COVID-19, individual courts have often made their own rules on how to proceed, and businesses are caught in the gridlock. For a deeper understanding of how individual states are treating statutes of limitations and some key takeaways, read this A&B advisory. (4/24/20) (New)
Department of Labor/OSHA
- 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.
- The Occupational Safety and Health Administration (OSHA) issued (4/20/20) guidance for the construction
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 statement encouraging earning disclosures and reports that timely, accurate, and robust. (4/14/20)
- For additional information on challenges regarding disclosures and COVID-19, review this A&B advisory (4/13/20).
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 SBA resumes accepting Paycheck Protection Program applications from participating lenders on Monday, April 27, 2020 at 10:30am EDT. (New)
- The SBA resources for loans under the Paycheck Protection Program has been updated. (Updated 4/26/20)
- The SBA has updated it FAQs. (Updated 4/26/20)
- The Treasury Department jointly released with the SBA new guidance on PPP and released this procedural notice for lenders. Lender Assistance Hotline remains: (833) 572-0502. (4/24/20) (New)
- The SBA PPP program guidance notes clarifies on page 6 that municipally-owned rural hospitals are eligible for loans. (4/24/20) (New)
- For information on how fund managers can qualify for relief, review this A&B advisory. (4/14/20)
- The SBA has guidance for loans under the Express Bridge Loan Pilot Program, the Economic Injury Disaster Loan Program for qualified entities that are impacted by COVID-19.
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.
- Treasury issued new guidance for borrowers and lenders regarding the Paycheck Protection Program including a fact sheet on How to Calculate Loan Amounts. (4/24/20) (New)
- The Federal Reserve announced temporary actions aimed at increasing the availability of intraday credit extended by Federal Reserve Banks. (4/23/20)
- 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 Federal Reserve’s Main Street Lending Program provides 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)
- 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 Internal Revenue Service (IRS) released state-by-state data for the Economic Impact Payments with 88 million individuals receiving payments worth nearly $158 billion. (4/24/20) (New)
- The IRS issued a special alert for Supplemental Security Income and Department of Veterans Affairs beneficiaries with dependents to act by May 5 if they didn’t file a tax return in 2018 or 2019 so they can quickly receive the full amount of their Economic Impact Payment. The alert stated that their “$1,200 payments will be issued soon and, in order to add the $500 per eligible child amount to these payments, the IRS needs the dependent information before the payments are issued.” (4/24/20) (New)
- The 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).
- 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.
- 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)
- 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.
- For a deeper dive on this topic, see this advisory from A&B’s Finance Group. (4/22/20)
- 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
- IMF and WTO heads call for lifting trade restrictions on medical supplies and food. On April 24, International Monetary Fund (IMF) Managing Director Kristalina Georgieva and World Trade Organization (WTO) Director-General Roberto Azevêdo issued a joint call for governments to refrain from imposing export and other trade restrictions on key medical supplies and food and to quickly lift those restrictions put in place since the start of the year. (New)
- USMCA To Enter Into Force July 1. On April 24, U.S. Trade Representative Robert Lighthizer notified Congress that the United States–Mexico–Canada Agreement (USMCA) will enter into force on July 1, 2020. Following that notification to Congress, the U.S. certified to Mexico and Canada that it's ready for the NAFTA replacement to take effect. “The crisis and recovery from the COVID-19 pandemic demonstrates that now, more than ever, the United States should strive to increase manufacturing capacity and investment in North America. The USMCA’s entry into force is a landmark achievement in that effort,” Lighthizer said in a press release. (New)
- 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.
- 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.”
- 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 4/26/20)
- On April 24, the Florida Office of Insurance Regulation Commissioner reportedly informed a committee of the Governor’s Re-Open Florida Task Force that while all business interruption policies are written differently, most will not provide coverage for losses related to the COVID-19 pandemic. (New)
- On April 24, the Michigan House Insurance Committee introduced Bill 5739, which if passed would mandate that any “insurer that delivers, issues for delivery, or renews in this state a business interruption policy shall include in the business interruption insurance policy coverage for business interruption due to the novel coronavirus (COVID-19). The bill further provides that coverage under the section “must indemnify the insured . . . for any loss of business or business interruption for the duration of the declaration of state of emergency under Executive Order No. 2020-04.” The bill would apply to any policy effective on the date the bill were to be passed, provided that the insured has less than 100 full-time employees. The Michigan bill follows similar bills introduced in Pennsylvania, South Carolina, Rhode Island, Louisiana, New York, New Jersey, Massachusetts, and Ohio. Note that New Jersey’s bill was pulled from consideration prior to the General Assembly vote. (New)
- On April 17, North Carolina Insurance Commissioner Mike Causey sent a letter to business owners explaining that the “issue with commercial property insurance, specifically business interruption insurance, presents a . . . difficult problem.” He explains that “[s]tandard business interruption policies are not designed to provide coverage for viruses, diseases, or pandemic-related losses because of the magnitude of potential losses.” Finally, the Commissioner notes that paying business interruption claims for COVID-19 related claims “could cripple the insurance industry causing many companies to fail, which would put the protection of homes, automobiles, and businesses at risk.” Therefore, the North Carolina Department of Insurance has advised that it cannot “legally force insurers to cover a risk which they didn’t intend to cover” but that they are “looking for ways to protect businesses in the future.”
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 Stay-at-Home 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)
- 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 10
- April 9
- Federal Tax Advisory: IRS Provides Partnerships a Mechanism to Claim Benefit of Retroactive CARES Act Provisions
- Financial Services Advisory: Agencies Update Their Interagency Statement on Reporting Loan Modifications
- Early Securities Class Actions Highlight COVID-19 Litigation Risk (Law360)
- FDA Compliance & Enforcement Advisory: FDA Issues New Guidance on Supply-Chain Disruption Notifications During COVID-19 Emergency
- Financial Restructuring & Reorganization Advisory: Protecting Recoveries in a Pandemic: What Creditors Can Do Right Now
- April 7
- April 6
- Antirust Advisory: Production and R&D Joint Ventures in a Pandemic: Reducing Antitrust Risk
- Financial Services Advisory: Regulatory Agencies Issue Mortgage Servicing Guidance and FAQs for the CARES Act
- White Collar, Government Investigations Advisory: CARES Act Follows Familiar Blueprint for Oversight and Enforcement
- 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