Coronavirus Flash Update May 13, 2020

Coronavirus Flash Update: May 13, 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, MAY 13, 2020

The Latest News

  • U.S. COVID-19 cases exceed 1,373,172 and 82,161 U.S. deaths. (Source: CDC) (Updated 5/13/20)
  • 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)
  • Yesterday, the House Democrats introduced a comprehensive $3 trillion aid package, the HEROES Act (H.R. 6800), and scheduled a floor vote for Friday. The stimulus package includes additional funds for state, local, and tribal governments, an expanded tax credit for employers for employee retention, a 2-year suspension of the cap on state and local taxes, a second round of economic impact payments for individuals, an extension of unemployment benefits through January 2021, aid for public transportation systems, and a proposal for essential worker ‘hazard’ pay. The 1,815 page bill may move quickly through the House and certainly starts the official negotiations for bill 4.0, but the Senate is not expected to act with the same pace on an alternative proposal. Senate Majority Leader Mitch McConnell called the House bill “aspirational” signaling that closing the distance between the two bodies on the scope of 4.0 will take some time. (New)

COVID-19 Federal Legislation   

  • Bill 4.0: On May 12, the House Democrats introduced the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, a large aid package scheduled to move quickly to a Friday House vote. If the House completes this short timeline to passage, the Senate deliberations are expected to move well into June before House-Senate negotiations on consensus bill is likely. For the full details on the HEROES Act, H.R. 6800 (New):
  • The text is available here.
  • A 1-pager and 71 page section-by-section summary are available here.
  • And an outline of the state and local funding provisions is here.
  • Bill 3.5: Paycheck Protection Program and Health Care Enhancement Act, (R. 266) was enacted on April 24. Also available are a section-by-section summary and an overview of the health care provisions.
  • A&B detailed summaries are below:
    • A&B Summary5 Small Business Provisions
    • A&B Summary5 Health Care Enhancement Provisions
  • Bill 3.0: Coronavirus Aid, Relief, and Economic Security (CARES) Act, (R. 748) passed on March 27. A congressional section by section summary is available here.
  • A&B detailed summaries are below:
  • A&B Quick Guide to the health care Provider Relief Fund General Distribution Attestation and Application Process – (5/12/20 - New Guide)
    • 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

COVID-19 State Legislation   

  • New legislative resource to track how states and localities are responding to the COVID-19 pandemic with emergency relief programs for small and medium-sized businesses. Follow our tracker here. (Updated 5/5/20)

Transition to “Reopening”   

  • State/Other Actions
    • For the latest information on state reopening decisions, see A&B 50-State Openings tracker – updated in each A&B Coronavirus Flash Update. (Updated 5/12/20)
    • 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)
  • Administration Actions
    • The FDA announced that it was working with the CDC to develop a process to resume on-site facility surveillance inspections consistent with the criteria announced in the White House Guidelines for Opening Up America Again. (5/11/20) (New)
  • The CDC has updated their webpage on travel in the United States reflecting the changing timeline of state reopening polices. (5/8/20)
    • A Health Card has been posted by the CDC to provide information to passengers arriving from international locations. (5/8/20)
  • The USDA announced the reopening of meatpacking facilities. (5/8/20)
  • The CDC updated or issued new guidance regarding reopening and continued mitigation efforts for individuals, businesses, schools, health departments, and community settings. These individual guidance can be found here.
    • The CDC has updated its re-opening guidance for reopening after a prolonged shutdown to insure safety of water systems and devices. (5/7/20)
  • FEMA released a new fact sheet on federal support for expanded national testing capabilities to support the reopening and testing plans of businesses and other entities. (5/5/20)
  • The HHS Administration for Community Living has released guidance on the phased reopening of senior nutrition programs. (5/5/20)
  • The Department of Labor is seeking ideas from the public about the challenges facing businesses in the process of reopening. A dialogue page has been created to facilitate this input. (5/1/20)

Federal Communications Commission   

  • The Federal Communication Commission (FCC) issued an order waiving its requirement that certain broadcast stations engage in broad recruitment outreach for full-time job vacancies if they re-hire employees released due to COVID-19. (5/5/20)

Department of Health and Human Services   

  • The Department of Health and Human Services (HHS) Coronavirus toolkit page has been updated. (Updated 5/12/20)
  • HHS and the Department of Defense (DOD) announced the award of a $138 million contract to ApiJect Systems America to expand production capability for prefilled syringes for a future COVID-19 vaccine. (5/12/20) (New)
  • HHS released the first episode of its new podcast “Learning the Curve,” which features an interview with HHS Secretary Alex Azar on the “Race to a Vaccine.” (5/11/20) (New)
  • The HHS Administration for Community Living updated its COVID-19 FAQs for Title VI grantees. (Updated 5/11/20)
  • The HHS Substance Abuse and Mental Health Services Administration (SAMHSA) issued guidance for law enforcement and first responders administering naloxone. (5/8/20) (New)
  • SAMHSA has updated the Interim considerations for State Psychiatric Hospitals information on its webpage. (5/8/20)
  • Despite enforcement delays final interoperability rules will have significant impact on health care participants. To learn more about these complex rules read this A&B advisory. (5/8/20)
  • HHS announced it was partnering with pharmacy and retailers to provide community-based testing sites. (5/8/20)
  • The HHS Office of Inspector General has updated it FAQs on enforcement activities related to COVID-19. (5/8/20)
  • HHS announced through HRSA it had awarded $583 million in grants to community health centers in all 50 states. (5/7/20)
  • The US Surgeon General released a new video on telehealth that shares basic information with consumers about telehealth including the privacy protections and Medicare allowance of payments for visits. (5/7/20)
  • HHS announced the creation of a new website on community-based testing. (5/7/20)
  • The HHS Office for Civil Rights announced that it was issuing guidance reminding covered health care providers that the HIPAA Privacy Rule requires that they obtain patient consent before media is given access to PHI. (5/5/20)
  • HHS has a tracking feature that allows public viewing of all COVID-19 HHS grant and cooperative agreement awards on its website. The grants were distributed through programs in the ACF, ACL, ASPR, CDC, DHHS/OS, HRSA, IHS, NIH, and SAMHSA. (Updated 5/11/20)

Assistant Secretary for Preparedness and Response  

  • The Assistant Secretary of Preparedness and Response (ASPR) has announced the allocation plan for the drug Remdesivir, which had previously received emergency use authorization. The states included on the allocation list to date are: Connecticut, Illinois, Indiana, Iowa, Maryland, Massachusetts, Michigan, New Jersey, New York, Rhode Island, Tennessee and Virginia. (5/9/20)
  • ASPR has posted a new telehealth tipsheet that outlines what it is, who is using it, ongoing challenges for telehealth, and trends to watch post-COVID-19. (5/7/20)

Centers for Disease Control and Prevention  

  • The Centers for Disease Control and Prevention (CDC) COVIDView Weekly Summary is available. (Updated 5/8/20)
  • The CDC weekly COVID forecast. (Updated 5/6/20)
  • The CDC updated its information for pediatric health care providers and worker safety and support. (Updated 5/12/20)
  • The CDC updated or issued new information on laboratory testing (FAQs, biosafety guidelines, website). (Updated 5/11/20)
  • The CDC issued guidance on factors to consider when planning to purchase respirators from another country. (5/11/20) (New)
  • The CDC has released guidance on what workers and employers can do to manage workplace fatigue. (5/8/20)
  • The CDC has released an early report on the Effects of the COVID-19 Pandemic on Routine Pediatric Vaccine Ordering and Administration – United States, 2020. (5/8/20)
  • The CDC has released an early report on The Public Health Response to COVID-19 Cases in Correctional and Detention Facilities – Louisiana, March-April 2020. (5/8/20)
  • The CDC updated or issued new guidance regarding reopening and continued mitigation efforts for individuals, businesses, schools, health departments, and community settings. These individual guidances can be found here. (Updated 5/7/20)
  • CDC guidance on COVID-19 Infrastructure Sector Response planning and infrastructure worker preparedness. (5/7/20)
  • The CDC provided updated COVID-19 laboratory reporting data for hospitals. (5/6/20)
  • CDC guidance on pets and other animals, and quarantine and isolation. (5/6/20)
  • The CDC has updated its FAQs on clinical questions about COVID-19. (5/6/20)
  • The CDC updated their interim guidelines for specimen collection, handling, and testing from persons for coronavirus disease. (5/5/20)
  • The CDC updated its FAQ for businesses and employers, including information on suspected or confirmed cases of COVID-19, reducing the spread of COVID-19, cleaning and disinfecting, and critical infrastructure. (5/3/20)
  • The CDC updated its interim guidance on discontinuation of isolations for persons with COVID-19 outside the healthcare setting. The CDC also updated its decision memo on symptom-based strategy to discontinue isolation for persons with COVID-19 (5/3/20)
  • The CDC has updated its webpage on contact tracing, including resources from the CDC and other federal agencies and private sector organizations. (5/2/20)
  • The CDC also updated its guidance on contract tracing and evaluating and testing persons for COVID-19 (Updated 5/4/20).

Centers for Medicare & Medicaid Services  

  • The Centers for Medicare and Medicaid Services (CMS) latest news alerts. (Updated 5/11/20)
  • And for the latest COVID-19 related CMS guidance visit the CMS Current Emergencies webpage. (Updated 5/12/20)
  • CMS Administrator Seema Verma wrote a letter thanking nursing home facility management and staff that includes links to previously shared infection control resources. (5/11/20) (New)
  • CMS has posted a video to review the most common questions regarding telehealth visit benefits under the 1135 waiver authority during the public health emergency. (5/8/20)
  • For a better understanding of the COVID-19 telehealth waivers and regulatory flexibilities, review this new A&B Guide. (New Guide – 5/12/20)
  • A&B’s Health Care and Litigation Groups explore how to take advantage of remote health care now and prepare for continued telehealth operations after the pandemic ends in this advisory. (4/29/20)
  • CMS has updated its list of blanket waivers. (5/11/20) (New)
  • CMS issued a memo and FAQs on the new requirements for notification of confirmed and suspected COVID-19 cases among nursing home residents and staff. (5/7/20)
  • CMS released their Final Payment Notice for 2021 Coverage Year. CMS also announced a one week extension of the Qualified Health Plans certification and rate review timelines. (5/7/20)
  • A&B Health Care Public Policy Practice provides a detailed summary of the CMS interim final rule. The interim final rule is intended to provide additional flexibilities for individuals and entities that provide health care services to Medicare, Medicaid, Basic Health Program, and Exchange beneficiaries to assist in the response to threats associated with COVID-19. Comments are due July 7, 2020. (5/6/20)
  • CMS updated its COVID-19 FAQs for Medicare Fee-for-Service billing. (5/6/20)
  • CMS updated its FAQ for state Medicaid and Children’s Health Insurance Program (CHIP) agencies. CMS also issued a separate document only listing the new FAQs. (Updated 5/5/20)

HHS/CMS/HRSA CARES Act Provider Relief Funds   

  • CMS has released data on providers and suppliers who have received payments through the Accelerated and Advance Payment Program. (5/10/20)
  • State by state data and information organized by provider type is posted here. (Updated 5/10/20)
  • Specific provider and supplier data, organized by state, is posted here (Zip file).
  • HHS announced it was disbursing another $22 billion in CARES Act Provider Relief Funds last Friday for hospitals in “hot spots” or COVID-19 high impact areas ($12 billion) and for rural providers ($10 billion). The CMS Provider Relief Fund webpage has been updated and additional portals opened: (5/2/20)
  • HHS has updated its rural payment methodology. (5/8/20)
  • HHS announced an extension of the deadline for attestation and acceptance of the terms and conditions for Provider Relief Fund payments for 45 days. (5/7/20)
  • HHS released the terms and conditions for high impact and rural provider The distributions to rural providers began on May 6 and to high impact providers on May 7. (5/7/20)
  • HHS released provider level data for the general distribution of the Provider Relief Fund. This provider specific data is based on providers who attested as of May 4 and includes 142,419 providers and their cumulative payments. (5/6/20)
  • Provider Relief Funds general distribution FAQs (5/8/20)
  • The state-by-state congressional district distribution totals for the initial $30 billion which began on April 10 has been posted. (5/1/20)
  • The CARES Provider Relief hotline is (866) 569-3522.
  • HHS through the Health Resources and Services Administration began distribution of another $20 billion from the CARES Act Provider Relief Fund for the care of the uninsured, which augments the $30 billion which was released in the first tranche from the fund. (4/28/20)
    • HRSA launched the COVID Uninsured 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.
    • HRSA released FAQs with clarifying questions related to eligibility for patients and providers, eligible claims and coding, program administration, and reimbursement/payment. (5/7/20)
    • HRSA posted the FAQs from their webinars on the uninsured program. (5/7/20)

Food and Drug Administration (Drugs and Devices)  

  • FDA provides a daily roundup on COVID-19 related actions. The latest update is here, (updated 5/11/20), and here is a listing of all announcements.
    • FDA maintains its COVID-19 FAQs for the general public. (Updated 5/6/20)
    • The agency also maintains a public database of drug shortages. (Updated 5/8/20)
  • The FDA announced two new guidance documents to streamline the process for submitting applications to initiate studies for new drugs and biological products related to COVID-19. The first provides information on investigational new drug applications and the second on later stage clinical trials. (5/11/20) (New)
  • The FDA announced updated guidance for clinical laboratories, commercial manufacturers, and FDA staff to accelerate the availability of COVID-19 tests. (5/11/20) (New)
  • The FDA announced new guidance to provide recommendations regarding postmarketing adverse event reporting during the pandemic. (5/11/20) (New)
  • The FDA updated its FAQs on manufacturing, purchasing, importing, and donating face masks. (Updated 5/11/20)
  • The FDA announced that it has issued the first emergency use authorization (EUA) for a COVID-19 antigen test. (5/9/20) (New)
  • The FDA has approved emergency use authorization for the first at-home diagnostic test with the option of home-collected saliva samples for COVID-19. (5/8/20)
  • The FDA has reissued the emergency use authorization for non-NIOSH-approved respirators manufactured in China. (5/6/20)
  • The FDA is increasing is surveillance and sampling of all respirators imported from China and issued a letter to providers to clarify that not all filtering facepiece respirators provide adequate protection. (5/7/20)
  • The FDA has issued, jointly with the FTC, warning letters to Alive By Nature, Inc. and to GlutaGenic for selling fraudulent COVID-19 treatment products. (5/7/20)
  • The FDA has posted a letter to providers on the risk of misinterpreting hydrogen peroxide indicator colors for vapor sterilization. (5/7/20)
  • The FDA has posted FAQs for consumers on Remdesivir and COVID-19. (5/7/20)
  • The FDA provided an update on the agency’s efforts to combat fraudulent actions by companies and individuals. (5/7/20)
  • The FDA released new guidance on reporting and mitigating animal drug shortages during the COVID-19 public health emergency. (5/7/20)
  • FDA issued guidance to clarify the scope of the public health emergency exemption and exclusion under the Drug Supply Chain Security Act to help ensure adequate distribution of finished prescription drug products throughout the supply chain to combat COVID-19. (4/30/20)
    • Review this A&B advisory for more information about the FDA’s new guidance. (5/5/20)

Food and Drug Administration and United States Department of Agriculture (Food-Related)   

  • USDA announced a partnership with national and regional food suppliers a program to purchase up to $3 billion in produce and products and to assist nonprofit food organizations. (5/8/20)
  • USDA issued letters to Governors directing meat processing plants to follow CDC and OSHA guidance on worker safety. (5/6/20)

National Institutes of Health  

  • The National Institutes of Health (NIH) announced it was beginning a clinical trial testing of antiviral Remdesivir plus anti-inflammatory drug Baricitinib for COVID-19. (5/8/20)
  • NIH announced a new research survey to examine the impact of COVID-19 on individuals with rare diseases. (5/7/20)

Health Resources and Services Administration   

  • The Health Resources and Services Administration (HRSA) announced nearly $583 million in awards to 1,385 HRSA-funded health centers. (5/7/20)
  • HRSA provides COVID-19-related information, resources, and FAQs here. (Updated 5/11/20)

Department of Homeland Security/FEMA   

  • The Department of Homeland Security (DHS) issues a weekly roundup of its response to COVID-19. (Updated 5/11/20).
  • DHS announced a temporary final rule that will be issued on May 14 that will temporarily remove certain limitations on employers, or U.S. agents, seeking to hire certain H-2B workers already in the United States to provide temporary labor or services essential to the U.S. food supply chain, and certain H-2B workers, who are essential to the U.S. food supply chain, seeking to extend their stay. (5/12/20) (New)
  • The DHS Cybersecurity and Infrastructure Security Agency (CISA) has released a fact sheet to warn of disinformation related to COVID-19. (5/8/20)
  • The Cybersecurity and Infrastructure Security Agency (CISA) and its counterpart in the United Kingdom warned that they had exposed malicious cyber campaigns targeting organizations involved in the COVID-19 response. CISA issued an advisory for health care and medical research organizations recommending staff to change passwords and implement two-factor authentication. (5/5/20)
  • The DHS Transportation Security Administration announced new security measures which include requiring its employees to wear masks while at screening checkpoints. Passengers are already encouraged to wear facial protection but may be asked to pull down the mask for identification purposes. (5/7/20)
  • FEMA and HHS jointly released a video on how the agencies collect critical data, analyze the data, and communicate the findings to appropriately distribute supplies. (5/7/20)
  • FEMA issued a fact sheet describing the federal support being provided to expand national testing capabilities. (5/5/20)
  • President Trump signed an executive order temporarily “pausing,” for period of 60 days, certain U.S. immigration processes. 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 for more information on the order, who it applies to, who is exempted, and what employment-based visas are affected. (4/28/20)

Department of Justice/Federal Trade Commission/Litigation   Consumer Protection/Anti-fraud   

  • On May 8, the FTC announced it is soliciting comments on whether it should make changes to its 2009 “Health Breach Notification Rule,” which mandates the disclosure of data breaches by firms that handle personal health data but who are not covered by the Health Insurance Portability and Accountability Act, or HIPAA, which has its own breach notification rules. The rule has not been invoked in the past decade, but as consumers are increasingly turning to telehealth, more companies may be covered by this rule. FTC seeks comments on the rule's definition and whether companies should be required to report data breaches sooner as well as whether and how the rule should address any developments in health care products or services related to COVID-19. These comments will be accepted for 90 days after the rule review notice is published in the Federal Register. (New)
  • The Federal Trade Commission (FTC) sent 45 letters warning marketers nationwide to stop making unsubstantiated claims that their products and therapies can treat or prevent COVID-19. This fourth round of letters targeted “treatments” including Chinese herbal medications, music therapy, homeopathic treatments, and even shields claimed to boost the immune system by protecting the wearer from electromagnetic field. There is currently no scientific evidence that these or any services can treat or cure COVID-19. The letters warn that if marketers refuse to stop making false claims, the FTC may seek an injunction and an order requiring money be refunded to consumers. (5/7/20)

Litigation Issues   

  • The Department of Justice announced the first enforcement action regarding alleged PPP fraud. The DOJ alleged that two defendants falsely claimed to have dozens of employees at several locations to get more than $500,000 in forgivable loans. (5/5/20)
  • The impact of the coronavirus pandemic may be a scheduling challenge for the courts, but bankruptcy cases remain active. For an examination of the implications of a bankruptcy case where the majority shareholder seeks to enforce its blocking rights, read this A&B advisory. (5/8/20)
  • Higher education protected students’ and employees’ health by closing their campuses and moving – virtually overnight – to online learning. Now they face high-risk class actions from students and their parents. A&B’s Colleges & Universities Team provides insight into current litigation in this advisory. (4/30/20)

Department of Labor/OSHA   

  • The Occupational Safety and Health Administration (OSHA) announced an alert listing safety tips employers can follow to protect dental industry workers from COVID-19. (5/11/20) (New)
  • Department of Labor (DOL) announced that it was issuing additional guidance about the short-time compensation program under the CARES Act. (5/4/20)
  • The Department of Labor’s employment report last Friday showed that the health care industry lost more than 1.4 million jobs. While no sector has been immune from significant job losses, the health care sector impact is especially complex since hospitals and other providers were required to ramp up emergency, ICU, and testing capabilities in preparation for the surge in coronavirus cases which was predicted, but elective procedures were suspended resulting in layoffs in nearly all types of outpatient and clinic settings.
  • DOL announced over $10 million in dislocated workers grant awards. (5/7/20)

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. (4/3/20)
  • The SBA updated its statistics on Round 2 loans showing that it had made 2.65 million loans totaling $191.4 billion. (5/12/20) (New). The SBA previously released Round 2 data of the PPP. (5/8/20)
  • The SBA released its latest PPP data that the agency had processed 2.5 million applications from 5,425 lenders for loans totaling $185.4 billion. The average loan size is a little greater than $74,000. The posted data also shows that 53% of the loan amount has come from banks with more than $50 billion in assets, 15% from mid-size banks, and 32% from lenders with less than $10 billion in assets. (5/7/20)
  • The SBA and Treasury updated their FAQs on the Paycheck Protection Program. The FAQs clarify that employers will not be penalized if they are unable to rehire a worker despite good faith efforts. (Updated 5/6/20)
    • The FAQs also extend the safe harbor to repay PPP loans until May 14 and confirms that foreign affiliate employees must be counted for size purposes.
  • The SBA released a list of PPP participating lenders. (5/7/20)
  • Review this A&B advisory for information on relief under the CARES Act for fund managers. (5/5/20)
  • The SBA and Treasury announced that they would review all PPP loans over $2 million, in addition to other loans as appropriate, to ensure that applicants meet eligibility criteria. (4/28/20)
    • A&B’s White Collar, Government & Internal Investigations Team summarizes the latest stimulus addition and emerging enforcement developments related to the certification, receipt, and use of PPP funds, including for banks processing the related loans, in this advisory. (4/30/20)

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 Department of Treasury announced that the Federal Reserve Bank of New York would begin purchasing shares of eligible US-listed exchange-traded funds and eligible corporate bonds through the Primary and Secondary Market Corporate Credit Facilities (PMCCF and SMCCF). (5/12/20) (New)
  • The Department of Treasury announced that it had approved over $25 billion in assistance to 352 applicants under the Payroll Support Program, including all the major passenger air carriers. Details on the recipients and assistance provided is available here. (5/12/20) (New)
  • The Federal Reserve announced that it published updates to the term sheet for the Term Asset-Backed Securities Loan Facility (TALF) and identified the information that would be disclosed monthly for TALF and the Paycheck Protection Program Liquidity Facility, including the name of each participant, the amounts borrowed, and the value of pledged collateral. The Federal Reserve also issued FAQs on TALF. (5/12/20) (New)
  • The Federal Reserve announced updates to the term sheet for the Municipal Liquidity Facility (MLF) to provide pricing and other information. The Federal Reserve also issued FAQs on MLF.
  • The Department of Treasury jointly with the IRS released summary details of the Economic Impact Payments, including state-by-state figures. (5/8/20)
  • Treasury also released a Get My Payments process to provide a quicker route to prompt payment. (5/8/20)
  • The Federal Deposit Insurance Corporation (FDIC) announced a notice of proposed rulemaking to mitigate the deposit insurance assessment effects of participating in the Paycheck Protection Program, the Paycheck Program Lending Facility, or Money Market Mutual Fund Liquidity Facility. (5/12/20) (New)
  • The IRS announced guidance to allow temporary changes to cafeteria plans to extend the claims period for health flexible spending arrangements and dependent care programs. (5/12/20) (New)
  • The IRS updated its FAQs with #64 and #65 regarding the amount eligible employers may treat for health care expenses. (5/8/20)
  • And the IRS added a new FAQ #79 regarding businesses that repay their PPP by May 14. (5/8/20)
  • Treasury Secretary Steven Mnuchin has communicated to Senator Grassley his decision to revise the employee retention tax credit rules to make the tax break available to companies who have furloughed workers but are still providing health insurance. The IRS has updated its FAQs to reflect the change. (5/7/20)
  • The Federal Reserve announced that it was modifying its liquidity coverage ratio for banks participating in the Money Market Mutual Fund and Paycheck Protection Program Liquidity Facilities. (5/5/20)
  • The Federal Reserve announced an expansion of the scope and eligibility for the Main Street Lending Program, essentially creating a third option to help credit flow to small and medium-sized businesses. (4/30/20)
    • FAQs regarding the Main Street Lending Program were released. (4/30/20)
    • For more information on how to chart a course through all three Main Street Lending Program options, read this A&B advisory. (5/6/20)
  • The Internal Revenue Service (IRS) posted several FAQs on higher education financial aid relief under the CARES to clarify that emergency CARES Act aid is not taxable. (5/7/20)
  • The IRS announced three new employer tax credits on employee retention, sick leave, and family leave. (5/7/20)

Other Agencies   

  • The Consumer Financial Protection Bureau, Federal Housing Finance Agency (FHFA), and Department of Housing and Urban Development (HUD) released a website providing consumers information on housing assistance. It includes a tool that allows homeowners and renters to determine if they live in a residence with a federally-backed mortgage. (5/12/20) (New)
  • The Environmental Protection Agency (EPA) launched an app to easily identify disinfectants on List N, for use against SARS-CoV-2, and announced an expedited review process for additional disinfectants for List N that require applications and data review. (5/12/20) (New)
  • The EPA issued clarifying guidance for ethanol producers that generate tradeable credits (RINs) under EPA’s Renewable Fuel Standard (RFS), and that are also producing hand sanitizer. As RINs cannot be generated for hand sanitizer alcohol, this guidance specifies how producers should allocate energy usage in Efficient Producer Pathway (EP3) calculations for the production of fuel ethanol and hand sanitizer alcohol. (5/11/20) (New)
  • HUD announced the allocation of a third wave of CARES Act funding totaling $1 billion through the Community Development Block Grant (CDBG) program. (5/11/20) (New)
  • Review this A&B advisory for information regarding the expansion of Ginnie Mae’s Pass-Through Assistance Program to multifamily mortgage-backed securities issuers. (5/12/20) (New)
  • For an update on recent key developments in privacy, data security, and all things cyber, read this A&B Digital Download. (5/12/20) (New)
  • The Department of Commerce (Commerce) announced the allocation of $300 million in CARES Act aid to the fishermen and seafood industries. (5/8/20)
  • Commerce announced it was accepting applications for grants from the Economic Development Administration to help communities prevent, prepare for, and respond to COVID-19. (5/7/20)
  • FHFA announced that it was extending loan processing flexibilities for Fannie Mae and Freddie Mac customers through June 30 to allow alternative appraisals, alternative methods of verifying employment, flexibility for documentation requirements to allow renovation disbursements, and expanding the use of power of attorney and online notarizations. (5/5/20)
  • The S. Patent and Trademark Office announced (4/28/20) that it would further extend certain patent and trademark deadlines to June 1, 2020, given the ongoing effects of the COVID-19 pandemic. These extended deadlines apply to those situations identified in the USPTO’s March 31, 2020, guidance, such as responses to Office Actions.
    • For more detail, read Alston & Bird’s advisory explaining how and when to claim these extensions. (4/2/20)
  • The Securities and Exchange Commission (SEC) announced that it was issuing a temporary final rule providing temporary relief to certain companies to meet urgent needs through regulation crowdfunding offerings. (5/4/20)
  • The Department of Transportation (DOT) announced that it was issuing a second enforcement notice regarding airline ticket refunds and a notice of adjustments to service obligations to allow carriers to reduce their service obligations. (5/12/20) (New)
  • DOT and the Federal Aviation Administration (FAA) updated their interim occupational health and safety guidance for air carriers and crews. (Revised 5/11/20)
  • DOT announced exemptions under the CARES Act for Spirit Airlines and JetBlue Airlines to stop providing service at certain large hubs and focus on city airports. (5/5/20)

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

  • Hogan cited airplane subsidies & tariffs in letter to Lighthizer. Ahead of a Monday call with U.S. Trade Representative Robert Lighthizer, European Trade Commissioner Phil Hogan outlined a trans-Atlantic trade agenda in a letter to his U.S. counterpart that included Boeing and Airbus subsidies, steel and aluminum tariffs and duties on other products, expedited regulatory approvals and the establishment of “joint reserves” of medical supplies, according to a report in the Financial Times. According to Hogan, who spoke during a webinar run by the Dublin-based Institute of International and European Affairs, he wrote to Lighthizer to “identify some leading principles” for the U.S. and EU in working together to tackle areas that have been affected by trade policy decisions amid the pandemic. (New)
  • Phase-one deal in flux as China reportedly debates whether to walk away. After months of touting the outcomes of the U.S.-China phase-one trade agreement, Trump administration officials have gone mum on whether they think the deal should remain in place -- while China reportedly is considering whether it should walk away. “In the past, some trade negotiators believed that it would be worthwhile to make certain compromise to reach a partial truce in the 22-month trade war and ease escalating tensions,” the Global Times, a tabloid run by the Chinese Communist Party, said in an article on Monday. “However, given U.S. President Donald Trump's hyping an anti-China conspiracy that aims to cover up his mishandling of the COVID-19 pandemic, advisors close to the trade talks have suggested Chinese officials rekindling the possibility of invalidating the trade pact and negotiating a new one to tilt the scales more to the Chinese side, sources close the matter told the Global Times.” (New)
  • Grassley: Mexico’s industrial approach to pandemic a “serious problem.” Mexico’s decision to shut down some industrial sectors by deeming them non-essential amid the coronavirus outbreak is a “serious problem,” Senate Finance Committee Chairman Chuck Grassley (R-IA) said on Tuesday, citing impacts on North American supply chains. Grassley, in a conference call with reporters, said he was “very definitely” worried about Mexico’s definition of essential services and the impact on key supply chains. “I’ve been hearing from Iowans about the issue and ... the point in which they [Mexico] are going to say who can work and not work. Yes, we see that as a serious problem,” Grassley said.
  • Examining the strong performance of environmental, social, governance (ESG) funds, the developments in the UK and Europe and more are investigated in the A&B advisory. (5/8/20)
  • With everyone focused on COVID-19, this A&B advisory analyzes the implications of Brexit on cross-border litigation in Europe. (5/5/20)

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. (Updated weekly - 5/10/20)
  • On May 8, the Department of the Treasury’s Principal Deputy Assistant Secretary Frederick W. Vaughan reportedly wrote to Rep. Ted Budd (R-NC) indicating that “Treasury is actively monitoring the various proposals being discussed in Congress, state legislatures, and the private sector related to insurance and business interruption coverage.” He went on to note that while insurers “should pay valid claims,” the various legislative proposals “could “fundamentally conflict with the contractual nature of insurance obligations and could introduce stability risks to the industry.” (New)
  • On April 24, the Rutgers Center for Risk and Responsibility and the National Council of Insurance Legislators (NCOIL) sponsored a webinar attended by hundreds of legislators, government officials, industry professionals and others to discuss state legislative proposals that would retroactively require insurers to provide coverage for business income losses caused by COVID-19. NCOIL President reportedly “began by expressing NCOIL’s opposition to retroactive legislation at the state level.” A recording of the webinar is available online.
  • The National Association of Insurance Commissioners has issued a Business Interruption COVID-19 Data Call Letter to property and casualty insurers indicating that state insurance regulators in 50 states, the District of Columbia, and the U.S. territories “have agreed to participate in a data call to collect data related to business interruption insurance and COVID-19.” Insurers are “requested to complete both parts of the COVID-19 business interruption data call” and to submit a “Premiums Data Template” by May 22, and a “Claims Data Template” by June 15, with mid-monthly update filings thereafter.
  • The pace of new business income coverage claims flooding state and federal courts nationwide has not slowed over the last few weeks. In addition to new case filings, a group of insurance industry trade groups led by the American Property Casualty Insurance Association has filed an Amici Curiae Brief in Tambellini v. Erie Insurance Exchange, urging the Pennsylvania Supreme Court to deny Plaintiff’s Emergency Application for Extraordinary Relief, which seeks to bypass the ordinary course trial court procedures and catapult Plaintiff’s claims straight to the Pennsylvania Supreme Court under the court’s infrequently-used King’s Bench Powers.

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