Coronavirus Flash Update April 29, 2020

Coronavirus Flash Update: April 29, 2020

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 WEDNESDAY, APRIL 29, 2020

The Latest News

  • U.S. COVID-19 cases exceed 1,035,765 and 59,266 U.S. deaths. (Source: CDC) (Updated 4/29/20)
  • U.S. stock market: Tuesday ended with losses across the major U.S. benchmarks, with the Dow and S&P down slightly at 32 and 15 points, respectively, while the Nasdaq posted a steeper decline at 122 points.(New)
  • The White House issued (4/28/20) an executive order to keep meat and poultry processors open under the Defense Production Act. The order delegates to the USDA the authority to “determine the proper nationwide priorities and allocation of all the materials, services, and facilities necessary to ensure the continued supply of meat and poultry, consistent with the guidance for the operations of meat and poultry processing facilities jointly issued by the CDC and OSHA.” The White House also issued a fact sheet on efforts related to ensuring the safety of the nation’s food supply chain. (New)
  • The White House released its COVID-19 testing overview and blueprint (4/27/20) as part of its Opening Up America Again initiative. The plans describe the partnership necessary between the private sector and the federal and state governments. (New)
  • S. Attorney General William Barr issued (4/27/20) a memorandum instructing U.S. Attorneys to “be on the lookout for state and local directives that could be violating constitutional rights and civil liberties of individual citizens.” (New)

COVID-19 Related Legislation   

  • Bill 4.0: The timing of the next emergency relief package remains as unclear as Congress’s plans to resume a more regular schedule. Senate Majority Leader Mitch McConnell (R-KY) announced the Senate would convene on May 4, which the House announced as well before reversing itself. Based on the view of the House of Representatives physician that new coronavirus cases in Washington, DC and other hot spots were still on the rise, Majority Leader Steny Hoyer (D-MD) stated that the House would not return next week. (New)
    • Beyond the scheduling discussions, positioning on package 4.0 does remain underway. Leader McConnell has called for protection against liability lawsuits for businesses who reopen but downplayed the possibility that infrastructure funding would be included. Democrats called for a work authorization extension for beneficiaries of the Deferred Action for Childhood Arrivals (DACA) and those with Temporary Work Status since data shows that many hold positions deemed ‘essential workers’ in support of the pandemic response. And Treasury Secretary Mnuchin mirrored the President’s previous comments that states whose budgets “were poorly mismanaged” should not benefit from additional emergency funds. (New)
    • Possible action on the 4.0 package is unlikely before late May or possibly after Memorial Day. (New)
  • 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:
    • A&B Summary5 Small Business Provisions
    • A&B Summary5 Health Care Enhancement Provisions
  • Bill 3.0: Coronavirus Aid, Relief, and Economic Security (CARES) Act, (R. 748) passed on March 27. A congressional section by section summary is available here.
  • A&B detailed summaries are below:
    • 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 SummaryCARES Act Individual and Business Tax Provisions
    • A&B SummaryCARES Act Unemployment Provisions
    • A&B SummaryCARES 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 4/28/20)
    • A&B Provider Relief Fund disbursements tracker– Provider Relief Fund was established through the CARES Act, with additional funds from Bill 3.5. (Updated 4/28/20)
    • 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 4/28/20)
  • 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)
  • The National Retail Federation and Retail Industry’s Leaders Association has released its "blueprint" for reopening. (4/26/20)
  • 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 Againguidelines 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)

Federal Communications Commission   

  • The Federal Communication Commission (FCC) and Department of Education announced (4/27/20) $16 billion in CARES Act funding for elementary and secondary schools to use for remote learning. (New)
  • The 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) announced (4/28/20) that it had begun distribution of an additional portions of the CARES Act Provider Relief Fund. HHS previously distributed $30 billion under the fund and on Monday, the Health Resources and Services Administration (HRSA) began the allocation for treatment of the uninsured. HRSA launched a new COVID-19 Uninsured Program Portal, allowing health care providers who have conducted COVID-19 testing or provided treatment for uninsured COVID-19 individuals on or after February 4, 2020 to request claims reimbursement. Providers can access the portal at HRSA.gov. In addition, HHS stated it has received data from hospitals throughout the country and is preparing to release funds to hospitals for the allocation for COVID-19 high-impact area funding and that more information is coming soon. (4/28/20) (New)
    • Additional information about the Provider Relief Fund targeted allocations is available here. Terms and conditions for fund recipients are available here. (New)
  • The Substance Abuse and Mental Health Services Administration (SAMHSA) announced (4/27/20) an additional $250 million in emergency COVID-19 funding to increase access to and to improve the quality of community mental and substance use disorder treatment. Information on the grants is available here. (New)
  • The HHS Coronavirus toolkit page has been updated. (Updated 4/28/20)
  • 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)
  • 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)
  • The CDC updated or issued new guidance regarding care for breastfeeding women, dental settings, law enforcement agencies and personnel, shared and congregate housing (Updated 4/28/20)
  • The CDC has updated its list of coronavirus symptoms. (4/24/20)
  • 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)
  • 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)
  • 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 CMS 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)
    • This detailed A&B Provider Relief Fund disbursements tracker provides a full overview of yesterday’s $70 billion disbursement and the previous $30 billion (Updated 4/28/20).
  • 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)
  • 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%).
  • Medicaid:
  • 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 4/28/20), and here is a listing of all announcements.
  • The agency published a public database of drug shortages. (Updated 4/26/20)
  • FDA issued a press release (4/27/20) summarizing its efforts to ensure the availability of hand sanitizer. (New)
  • FDA updated information (4/27/20) to mammography facilities, including what they should do if they close, remain open on reduced operations, cannot schedule an annual medical physicist survey, or have non-compliance citations as a result of COVID-19. (Updated 4/27/20)
  • FDA issued FAQs (4/27/20) on Emergency Use Authorizations for medical devices during the COVID-19 pandemic. (New)
  • FDA re-issued its memorandum (4/24/20) providing Emergency Use Authorization (EUA) for the manufacture of face masks. In conjunction with this, the FDA updated its FAQs (4/26/20) on its EUA for face masks. (New)
  • 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)
  • FDA issued guidanceto 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)
  • 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 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 CDC and FDA issued information (4/24/20) on the use of respirators, facemasks, and cloth face coverings in the food and agriculture sector. (New)
  • The FDA issued FAQs (4/24/20) for food production, storage, and distribution companies on what to do if workers are exposed to COVID-19. (New)
  • Both USDA FSIS and FDA have issued temporary enforcement discretion policies to provide labeling flexibilities for products intended for food service going to retail. FDA has also issued separate policies for the labeling of shell eggs sold at retail and for chain restaurants and establishments subject to FDA’s menu labeling requirements. USDA’s AMS has also announced an enforcement discretion policy on country of origin labeling.
  • 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)

Health Resources and Services Administration   

  • The Health Resources and Services Administration (HRSA) launched 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.
  • 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 4/27/20).
  • FEMA issued a fact sheet on best practices to preserve personal protective equipment. (4/28/20) (New)
  • FEMA released 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. (4/22/20)
  • DHS has released a fact sheet summarizing the agency’s research and development regarding COVID-19. (4/24/20)
  • 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)
  • Review this A&B advisory (4/28/20) for more information on the order, who it applies to, who is exempted, and what employment-based visas are affected. (New)
  • 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.

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)

Consumer Protection   

  • On April 24, the DOJ filed its first price gouging criminal complaint charging a New York man with amassing and selling items designated as “scarce” under Executive Order 13910, including facemasks, surgical gowns, isolation suits and disposable gloves. According to the DOJ, the defendant set up a “COVID-19 Essentials” section in his sneaker and apparel store and sold products at up to 1,328% over cost. (New)
  • On April 23, the FTC sent twenty-one warning letters to U.S. marketers to stop making unsubstantiated claims that their products and therapies can treat or prevent COVID-19. The products at issue included acupuncture, intravenous, ozone, and stem cell therapies, and various vitamins and supplements. One day later, the FTC sent letters to ten multi-level marketing companies (MLMs) demanding that they remove and address claims that they or their participants are making about their products’ ability to treat or prevent coronavirus disease or about the earnings people who have recently lost income can make, or both.The letters warn the companies that they are responsible for their distributors’ false or misleading claims. The letter recipients are required to notify the FTC within 48 hours about specific actions they have taken to address the agency’s concerns. (New)

Litigation Issues   

  • 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)

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) and the CDC issued (4/26/20) interim guidance for meat and poultry processing workers and employees. (New)
  • OSHA issued (4/24/20) enforcement guidance on the decontamination of filtering facepiece respirators used in health care settings. (New)

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 and Treasury announced (4/28/20) that they would review all PPP loans over $2 million, in addition to other loans as appropriate, to ensure that applicants meet eligibility criteria. (New)
  • The SBA issued (4/28/20) two interim final rules, one announcing additional criterion for seasonal employers under PPP and the other on disbursements. (New)
  • The SBA resumed accepting Paycheck Protection Program applications from participating lenders on Monday, April 27, 2020 at 10:30am EDT.
  • The SBA resources for loans under the Paycheck Protection Program has been updated. (Updated 4/26/20)
    • The Treasury updated (4/28/20) its FAQs on PPP, adding a new Question 37 (New). The SBA also recently updated it FAQs.
  • 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)
  • The SBA PPP program guidance notes clarifies on page 6 that municipally-owned rural hospitals are eligible for loans. (4/24/20)
    • 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)
  • The Federal Reserve and Federal Deposit Insurance Corporation (FDIC) announced (4/27/20) that they were extending the comment period for 30 days on their proposed guidance for resolution plans submitted by certain large foreign banks. (New)
  • The Federal Reserve announced (4/27/20) that it was expanding the scope and duration of the Municipal Liquidity Facility (MLF) to purchase up to $500 billion of short-term notes to states, counties with at least 500,000 residents, and cities with at least 250,000 residents. The Federal Reserve Bank of New York issued an FAQ on the MLF. (New)
  • The Federal Reserve announced temporary actions aimed at increasing the availability of intraday credit extended by Federal Reserve Banks. (4/23/20)
  • 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)
  • 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)
  • 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).

Other Agencies   

  • The Federal Housing Finance Agency announced (4/27/20) that borrowers in forbearance with a Fannie Mae and Freddie Mac-backed mortgage are not required to repay missed payments in one lump sum. Fannie Mae and Freddie Mac issued similar press releases. (New)
  • 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) issued a brochure for tenants having problems paying rent including state contacts. (4/27/20) (New)
  • 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

  • The World Trade Organization (WTO) issues new report on treatment of medical products in regional trade agreements. The WTO Secretariat has published a new report on the treatment of medical products in regional trade agreements amid current supply shortages caused by the COVID-19 pandemic. The report examines the extent medical products are traded among preferential partners and the difference in liberalization rates within and outside these trade agreements. (New)
  • The Department of Justice (DOJ) Wades Into Antidumping (AD)/Countervailing Duty (CVD) Case on Mattresses, Says New Duties Could Harm COVID-19 Response. DOJ recently interceded in an antidumping and countervailing duty case on mattresses to warn that imposition of new tariffs could run counter to efforts to combat the COVID-pandemic. In a brief filed April 22 with the International Trade Commission, lawyers from DOJ’s Antitrust Division argued that new AD/CV duties could increase the price of mattresses, making it harder for hospitals to increase the number of beds they have available for patients with the disease. (New)
  • The Federal Maritime Commission (FMC) Adopts Final Rule for Detention and Demurrage Charges. FMC will adopt a final rule to give industry guidance on how it assesses the “reasonableness” of detention and demurrage charges, the agency said. The rule, which was proposed in September and has garnered new attention due to charges caused by COVID-19-related shipping delays, is expected to give industry clarity on how FMC will consider whether detention and demurrage policies incentivize the movement of cargo or whether they are unjustified. The rule will become effective upon its publication in the Federal Register. (New)
  • Japan Announces Additional Entry Restrictions. Effective April 29 at midnight Japan time, foreign nationals who have stayed in Russia, the United Arab Emirates, Saudi Arabia, Peru or 10 other countries within 14 days prior to the application for landing are denied permission to enter Japan for the time being, unless there are exceptional circumstances. (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).

Insurance Issues   

  • For a 50-state review of business interruption insurance related issues see this new COVID-19 Insurance Litigation and Regulatory Issues Tracker. The tracker is updated weekly. (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.
  • 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.
  • Litigation relating to business interruption coverage in the wake of the COVID-19 pandemic and related civil authority orders contains unabated. Dozens of 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 two insurers—Travelers and First Community Insurance Co.—have filed suit against insureds 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. Notable filings include: (updated 4/28/2020)
    • On April 24, First Community Insurance Co. filed suit against its insured in Florida state court seeking a declaratory judgment that it is not required to provide coverage for loss of business income resulting from the COVID-19 pandemic.
    • On April 24, Biltrite Furniture, Inc. initiated a purported class action in the United States District court for the Eastern District of Wisconsin against its insurer, Liberty Mutual Insurance Company.  Plaintiff seeks damages for alleged breach of contract and a declaratory judgment that confirms whether the civil authority closure orders trigger business interruption coverage or civil authority coverage.  Plaintiff seeks to represent both a nationwide class and a Wisconsin subclass. The case is Biltrite Furniture v. Liberty Mutual Insurance Company, No.2:20-cv-00656 (E.D. Wis.)
    • On April 27, Zwillo V. Corp dba Westport Flea Market Bar & Grill initiated a purported class action in the United States District Court for the Western District of Missouri against its insurer Lexington Insurance Co., alleging that the insurer wrongfully denied Plaintiffs’ and class members’ claims for business interruption coverage relating to certain “stay at home” orders.  Plaintiff seeks to represent nationwide declaratory judgment, injunctive relief, and breach of contract classes as well as a Missouri subclass.  The case is Zwillo V. Corp. v. Lexington Insurance, No. 4:20-cv-339 (W.D. Mo.).

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   

  • 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)

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