Coronavirus Flash Update June 15, 2020

Coronavirus Flash Update: June 15, 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 MONDAY, JUNE 15, 2020

The Latest News

  • U.S. COVID-19 cases exceed 2,084,840 and 114,002 U.S. deaths. (Source: CDC) (Updated 6/15/20)
  • U.S. stock market: On Friday, the markets ended up for the day, with the Dow rising 477 points, the S&P 500 up 39 points, and the Nasdaq gaining 96 points. Weekend trading in stock futures were pointing to losses as of Sunday night. (New)
  • The CDC data on new COVID-19 cases shows that while new cases have decreased nationwide, cases are on the rise in several states, including Alabama, Arizona, Arkansas, California, Florida, North Carolina, and South Carolina. The Johns Hopkins University of Medicine Coronavirus Resources Center has state specific graphics tracking the data trends. (6/15/20) (New)
  • The Department of Transportation announced plans to distribute nearly 100 million cloth facial coverings to aviation, transit, and passenger rail transportation sectors for passenger use. The airline and public transportation distribution effort will include allocating 86.8 million to airports, and 9.6 million to transit agencies and Amtrak. (6/12/20) (New)
  • Additional travel related guidance has also been released on road trips, whether for business or personal - Road Trip Toolkit for Travelers and Public Health Information for Travelers (6/12/20) (New)

COVID-19 Federal & State Legislation   

  • Bill 4.0: The timing of the next emergency stimulus bill remains unclear with both the Administration and members of Congress noting issues which might be important or nonstarters for the next package. Congressional action on Fiscal Year 2021 appropriations has been the short term focus as well as legislation on policing reform and issues related to the civil unrest. To date, the House passed HEROES Act is the only official proposal on the table for Bill 4.0. (New)
  • For the full details on the HEROES Act, H.R. 6800, which passed the House on May 15:
  • The Paycheck Protection Flexibility Act, H.R. 7010, was enacted on June 5. To learn more, see this A&B Summary of the Paycheck Protection Flexibility Act. (6/5/20)
  • Bill 3.5: Paycheck Protection Program and Health Care Enhancement Act, (R. 266) was enacted on April 24. Also available are a section-by-section summary and an overview of the health care provisions.
  • A&B detailed summaries are below:
    • A&B Summary5 Small Business Provisions
    • A&B Summary5 Health Care Enhancement Provisions
  • Bill 3.0: Coronavirus Aid, Relief, and Economic Security (CARES) Act, (R. 748) passed on March 27. A congressional section by section summary is available here.
  • A&B detailed summaries are below:
  • Congress has passed three coronavirus emergency response bills and the first two are below:
  • Bill 1.0: Coronavirus Preparedness and Response Supplemental (CPPRS) (R. 6074) passed on March 5
  • Bill 2.0: Families First Coronavirus Response Act (FFCRA) (R. 6201) passed on March 18

Transition to “Reopening”  

Department of Health and Human Services  

  • The Department of Health and Human Services (HHS) Coronavirus toolkit page has been updated. (Updated 6/9/20)
  • HHS has a tracking feature that allows public viewing of all COVID-19 HHS grants and cooperative agreement awards on its website. The grants were distributed through programs in the ACF, ACL, ASPR, CDC, DHHS/OS, HRSA, IHS, NIH, and SAMHSA. (Updated 6/11/20)
  • The HHS Office of Civil Rights (OCR) has issued guidance on how the HIPAA Privacy Rule permits covered health care providers to contact their patients who have recovered from COVID-19 to inform them about how they can donate their blood and plasma containing antibodies to help other patients with COVID-19. (6/12/20) (New)
  • HHS Office of Assistant Secretary for Preparedness and Response (ASPR) released information on hurricane preparedness during COVID-19. (6/11/20) (New)
  • The HHS Health Resources and Services Administration (HRSA) awarded $8 million in grants to 73 organizations to provide health center COVID-19 training and technical assistance. (6/11/20) (New)
  • The HHS Office of Biomedical Advanced Research and Development Authority (BARDA) announced a partnership with Snapdragon Chemistry, Inc. to develop and demonstrate an innovative continuous manufacturing platform to produce ribonucleotide triphosphates (NTPs), a raw material for COVID-19 vaccines. (6/11/20) (New)
  • BARDA announced a partnership with the Sepsis Alliance to provide two high-quality, evidence-based education and training webinars on sepsis and COVID-19 in order to improve patient outcomes. (6/11/20) (New)
  • BARDA has announced a partnership with OraSure Technologies to develop an in vitro diagnostic test for SARS-CoV-2 in oral fluids. (6/10/20)
  • The NIH has launched a project to evaluate drugs prescribed to children with COVID-19. (6/10/20)
  • BARDA has announced a collaboration with AstraZeneca to development a novel COVID-19 Therapeutic. (6/9/20)
  • The HHS Office of Civil Rights (OCR) has announced it had reached Early Case Resolution with the State of Connecticut after the state issued an executive order regarding non-visitation policies for short-term hospitals and outpatient clinics to ensure that people with disabilities are not denied reasonable access to needed support persons after it agreed to grant a 73-year old woman with aphasia access to support persons to help. OCR also reached an agreement with Hartford Hospital with her communication and comprehension in her treatment. (6/9/20)
  • HHS released a fact sheet on the departments steps to address the disparate impact of COVID-19 on Black and other racial or ethnic minorities. (6/8/20)

HHS/CDC/CMS/HRSA CARES Act Provider Relief Funds  

  • HHS announced three new Provider Relief Fund allotments completing the initial $100 billion authorized by the CARES Act. The additional $75 billion for the Provider Relief Fund authorized by the Paycheck Protection and Healthcare Enhancement Act remains to be distribution and neither the breakdown nor the disbursement formulas are known. (6/9/20) The three new allotments are:
  • $10 billion for safety net hospitals – for purposes of this disbursement, safety net hospitals are defined as those with a Medicare Disproportionate Share Payment percentage of 20.2 % or greater, and an average uncompensated care per bed of $25,000 or more, and profitability of 3 percent or less as reported to CMS. HHS has posted the state-by-state breakdown. (6/9/20)
    • HHS released additional information on the hospital safety net distribution, clarifying that HHS had extracted information from the CMS Hospital Cost Reports and Provider Specific Files to identify acute care facilities and children’s hospitals that met each of the following criteria, respectively: (6/11/20) (New)
      • Acute Care Facilities: A Medicare Disproportionate Patient Percentage of 20.2% or greater; Annual uncompensated care of at least $25,000 per bed; and Net Operating Margin of 3.0% or less.
      • Children’s Hospitals: A Medicare Disproportionate Patient Percentage of 20.2% or greater; Net Operating Margin of 3.0% or less.
    • $10 billion is a second round funding for hot spot hospitals. To determine eligibility for this funding, hospitals must submit their information by June 15, 2020 at 9:00 pm ET and to be submitted through the teletracking portal. On Monday, June 8, HHS sent communications to all hospitals asking them to update information on their COVID-19 positive-inpatient admissions for the period January 1, 2020 through June 10, 2020. This information will be used to determine the second round of funding for COVID-19 hotspot hospitals. (6/9/20)
    • $15 billion for Medicaid and Children’s Health Insurance Program (CHIP) providers that participate in state Medicaid and CHIP programs and have NOT received a payment from the Provider Relief Fund General Allocation. The Provider Relief Fund portal will soon be open to allow eligible Medicaid and CHIP providers to report their annual patient revenue, which will be used as a factor in determining their payment. The payment to each provider will be at least 2 percent of reported gross revenue from patient care. The final amount each provider will receive will be determined after the data is submitted, including information about the number of Medicaid patients providers serve. (6/9/20)
    • HHS - the CARES Act Provider Relief Fund (PRF) webpage and Portal (Updated 6/10/20)
    • And the PRF FAQs (Updated 6/10/20) have been updated and capture numerous modifications.
    • The CDC has posted an updated dataset of provider recipient specific payment from the Provider Relief Fund general distribution high impact targeted allocation and/or rural targeted allocation. The dataset includes who has attested to receiving one or more payments and agreed to the terms and conditions as of June 10. $23.605 million has been paid for testing and $130.030 million has been paid for treatment. (Updated 6/12/20)
    • The COVID-19 Provider Relief Fund – the A&B General Distribution Attestation and Application Process Guide has been updated. (Updated 5/27/20)
    • The CARES Provider Relief Fund hotline is (866) 569-3522.

Centers for Disease Control and Prevention  

Centers for Medicare & Medicaid Services  

  • The Centers for Medicare and Medicaid Services (CMS) latest news alerts. (Updated 6/11/20)
  • And for the latest COVID-19 related CMS guidance and FAQs visit the CMS Current Emergencies webpage. (Updated 6/10/20)
  • CMS released a press statement that seizing nursing home resident federal economic incentive payments is prohibited. (6/11/20) (New)
  • CMS has emailed a statement the delay of the start of the Seriously Ill Population (SIP) component by three months for Primary Care First (PCF) applications – it will now begin April 1, 2021. (6/11/20) (New)
  • CMS guidance and FAQs for State Survey Agencies and non long-term care providers and suppliers providing care for individuals with disabilities. (6/10/20)

Food and Drug Administration  

  • FDA provides a daily roundup on COVID-19 related actions. The latest announcements. (Updated 6/12/20)
    • FDA updated its FAQs on Testing for SARS-CoV-2, including posting a list of antibody tests that are being removed from the “notification list” of tests being offered. (Updated 6/12/20)
    • FDA maintains its COVID-19 FAQs for the general public. (Updated 6/9/20)
    • FDA webpage for health professionals. (Updated 6/10/20)
    • The agency also maintains a public database of drug shortages. (Updated 6/10/20)
    • The FDA has published a new webpage on COVID-19 Educational Resources. (Updated 6/12/20)
  • The FDA issued an FDA Voices, titled Rare Disease Therapy Development and Access Remain Top FDA Priorities During COVID-19. (6/11/20) (New)
  • The FDA issued a warning letter to outoftheboxremedies.com for misleading claims related to products for the treatment of COVID-19. (6/11/20) (New)
  • The FDA has updated its list of EUAs for medical devices. (6/11/20) (New)
  • The FDA posted updated FAQs on hospital beds, stretchers, and mattresses during COVID-19. (6/10/20) (New)
  • The FDA updated product reporting on compounding drugs from outsourcing facilities. (6/9/20) (New)
  • The FDA, jointly with the National Institutes of Health (NIH), has made updates to the CURE ID crowd-sourcing app to make it easier for health care providers to share their experiences treating COVID-19 patients who are unable to be enrolled in a clinical trial. (6/8/20) (New)
  • The FDA has released a Spanish translation of FAQs on the EUA for Remdesivir for certain hospitalized COVID-19 patients. (6/1/20) (New)
  • The FDA has approved an abbreviated new drug application for succinylcholine chloride injection. (6/10/20)
  • The FDA has issued a Emergency Use Authorization to Illumina, Inc. for the first COVID-19 diagnostic test utilizing next generation sequence technology. (6/10/20)
  • The FFA has issued guidance on the distribution of drug samples during COVID-19. (6/9/20)
  • The FDA has added the BioMed Innovations SuppleVent Ventilator to the list of authorized ventilators. (6/9/20)
  • The FDA reissued an emergency use authorization revising which types of respirators can be decontaminated for reuse. (6/7/20)
  • The FDA has also announced it has reissued two emergency use authorizations covering imported respirators by tightening other criteria in the Non-NIOSH-Approved Filtering Face piece Respirators Manufactured in China and Imported, Non-NIOSH-Approved Disposable Filtering Face piece Respirators. (6/9/20)

Department of Homeland Security/FEMA  

  • The Department of Homeland Security (DHS) posts a weekly update of its response to COVID-19. (Updated 6/8/20)
  • The DHS office of Science and Technology has launched a tool to calculate the natural decay of SARS-CoV-2 in the air under various environmental conditions. (6/12/20) (New)
  • FEMA released an updated state-by-state PPE data. (6/12/20) (New)
  • FEMA released a document on developing mass care and emergency assistance plans for pandemics. (6/12/20) (New)
  • FEMA has released guidance on providing Mass Care during a pandemic. (6/10/20)

Department of Justice/Federal Trade Commission/Litigation  

  • The Federal Trade Commission (FTC) announced it was releasing state-level information to the public about the COVID-19 complaints it receives with online shopping problems, including items not arriving or not arriving when promised and items that are different than advertised, being the most common in many states. The FTC also released the number of complaints related to other types of fraud, Do Not Call, identity theft, and other complaints received. The information is available nationally and by each state on the FTC’s interactive COVID-19 complaint data dashboards. Between January 1 and June 8, 2020, the FTC has received more than 91,000 total COVID-19-related complaints with consumers reportedly losing a total of more than $59.2 million. (6/11/20) (New)
  • The Department of Justice (DOJ) filed Friend-of-the-Court Brief in support of free speech challenge to California’s COVID-19 ban on in-person political protests. (6/10/20) (New)

Small Business Administration  

Department of Treasury/IRS/Federal Reserve  

Other Agencies  

  • The U.S. Department of Agriculture has announced an extension of the waiver allowing flexibility in child nutrition programs through the summer. (6/10/20)
  • The Department of Defense COVID-19 Joint Acquisition Task Force announced that its domestic partnership to ramp up domestic N95 mask production is expected to exceed 1 billion by 2021. (6/11/20) (New)
  • The Air Force concluded a mass rapid oral fluid COVID-19 test of roughly 2% or 7800 of Air Force personnel. (6/11/20) (New)
  • The U.S. Department of Education has issued a proposed rule to prohibit COVID-19 related education aid from going to foreign nationals and non-citizens. (6/11/20) (New)
  • The Environmental Protection Agency announced it was working with FEMA to transfer an additional 22,000 pieces of excess PPE to emergency and health professionals. (6/11/20) (New)
  • The Federal Communications Commission has approved another 67 telehealth funding applications to health care providers totaling $20.18 million. (6/10/20)
  • The Department of Housing and Urban Development has announced the final allocation of Emergency Solutions Grants funding to support homeless programs and low-income housing. (6/10/20)
  • The Department of Labor has awarded nearly $239 million in Dislocated Worker grants. (6/9/20)
  • The Department of Labor Wage and Hour Division:
  • announced that a West Point, Georgia company has paid an employee after it was determined the employer wrongly denied emergency paid sick leave related to the coronavirus. (6/9/20)
  • announced a Maryland electrical contractor has reinstated an employee after an investigation found the employer denied paid sick leave under the provisions from the Families First Coronavirus Response Act. (6/9/20)

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 Export-Import Bank of the United States (EXIM) has revised key features of two short-term export credit insurance products to allow for streamline application during the pandemic. (6/9/10)

Business Insurance Issues Related to COVID-19  

  • For a 50-state review of business interruption insurance related issues see this new COVID-19 Insurance Litigation and Regulatory Issues tracker. (Weekly update 6/15/20)
  • On June 8, the Illinois Department of Insurance issued Company Bulletin 2020-15 requesting that “all insurers licensed or authorized to transact insurance business in [Illinois] . . . err on the side of the policyholder when paying claims as a result of riots, civil commotion, or vandalism” and “base payouts on business activity levels that eliminate the impact of COVID-19.” The Department further encourages insurers to “err on the side of the policyholder when considering the use of exclusions that may or may not be applicable.” (New)
  • On June 4, Hagens Berman Sobol Shapiro LLP filed a putative class action on behalf of its client, American Traders, Inc. d/b/a Ramada Inn Modesto against all Farmers Insurance Group companies seeking declaratory relief, statutory damages, and damages for breach of contract. Plaintiff asserts that defendants denied Plaintiff’s claim for business interruption coverage for losses allegedly resulting from California’s civil authority orders without conducting an investigation “to determine the precise physical loss or damage that resulted from the governmental orders.” Plaintiff further asserts that the risk of loss of income and increased expenses due to governmental action is not limited or excluded in the policy. Plaintiff seeks to represent a class of California policyholders insured by Defendants with coverage for Business Income, Extended Business Income, Civil Authority, Tips Included, Dependent Property, and/or Extra Expense Coverage.  The case is American Traders, Inc. d/b/a Ramada Inn Modesto v. Mid-Century Ins. Co., et al., No. CV-20-002477 (Stanislaus Cnty. Sup. Ct., Cal.). (New)
  • On June 5, Lieff Cabraser Heimann & Bernstein, LLP filed a putative class action on behalf of its client, Water Sports Kauai Inc. dba Sand People—a small business retailer selling gifts, furnishings, and jewelry amongst other items—against insurer Fireman’s Fund Insurance Company, et al. Plaintiff alleges that it was forced by government orders issued in Hawaii to completely shut down its operations in response to COVID-19. Plaintiff emphasizes its commitment to its employees, noting that despite the shutdown, it has continued paying medical benefits to its employees, and had anticipated re-hiring employees upon receipt of insurance coverage payments from the Defendants. However, Plaintiff alleges that, as part of a “premeditated strategy” the Defendant insurers summarily denied Plaintiff’s claim for coverage.  Plaintiff seeks to represent both a nationwide class and a Hawaii subclass, and has brought claims for Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing, Unfair or Deceptive Trade Practices under Hawaii law, and Declaratory Relief. The case is Water Sports Kauai Inc. v. Fireman’s Fund Ins. Co., et al., No. 3:20-cv-03750-JCS (N.D. Cal.) (New)

For background and the most up-to-date information, please visit the Centers for Disease Control and Prevention Coronavirus Disease 2019 website: HERE. The additional federal agency links are provided by the White House Coronavirus Task Force:     What You Should Know:

Information for Businesses:

Information for Travel and Transportation:

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

Alston & Bird Coronavirus Links

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