Coronavirus Flash Update May 20, 2020

Coronavirus Flash Update: May 20, 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 20, 2020

The Latest News

  • U.S. COVID-19 cases exceed 1,535,431 and 91,937 U.S. deaths. (Source: CDC) (Updated 5/20/20)
  • U.S. stock market: Tuesday ended with retreats from Monday’s gains, with the Dow falling 390 points, the S&P down 30 points, and the Nasdaq losing 49 points. (New)
  • On Wednesday, President Trump signed an executive order on regulatory relief to support economic recovery. The order directs agencies to “address this economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.” The order also instructs agencies to provide guidance to businesses on how to comply with coronavirus-related legislation. (New)
  • The Commerce Department issued a report showing that that single-family home starts dropped over 30% in April to the lowest rate since February 2015. Applications to build new properties dropped over 20%, the most since July 2008. (5/19/20) (New)
  • The Congressional Oversight Commission released its first report on the CARES Act, which focuses on the $500 billion allocated to the Treasury Department for lending facilities and loans to airlines and certain other businesses and lending to businesses and state and local governments. The report concludes that only $37.5 billion has been disbursed in lending facilities and that none of the loans have been disbursed. The 12-member bipartisan commission was created to oversee COVID-19 relief spending and is led by Representative Jim Clyburn (D-SC). (5/18/20) (New)

COVID-19 Federal & State Legislation   

  • Bill 4.0: President Trump and Treasury Secretary Mnuchin met with Senate Republicans on Tuesday and departed their lunch with similar statements that the country needed to move quickly to reopening to encourage greater economic recovery before any action on another emergency stimulus bill is considered. Senate Majority Leader Mitch McConnell (R-KY) and his colleagues mirrored this position stating that there “is only one way out of this dilemma: America has to grow again, to open up again, and I am pleased that is beginning to happen in my states and other states.” Some Republicans have expanded on this view expressing the concern that if further aid was given to states and localities it might encourage slower movement to lift the business stay-at-home orders. This unified Republican position makes any action on the House passed HEROES Act or any other 4.0 bill less likely until later June, possibly July. (New)
  • For the full details on the HEROES Act, H.R. 6800:
  • 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 Summary – 5 Small Business Provisions
    • A&B Summary – 5 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)
    • 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
  • State Legislation: 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. (Last 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. (Updated 5/19/20)
    • The National Waste & Recycling Association has prepared a summary of state mandates and recommendations for face coverings and temperature taking. (5/15/20) (New)
  • Administration Actions
    • CMS announced new guidance to help nursing homes safely reopen. The guidance recommends that (1) nursing homes do not reopen or relax any restrictions until all residents and staff have received results from baseline tests; (2) state agencies inspect nursing homes that experienced significant COVID-19 outbreaks; and (3) nursing homes keep restrictions in place even as other businesses relax their restrictions. CMS also issued FAQs on the new guidance. (5/18/20) (New)
    • The President announced “Operation Warp Speed,” a national program to accelerate the development, manufacturing, and distribution of COVID-19 vaccines, therapeutics, and diagnostics. (5/15/20)
    • The CDC released its report on activities and initiatives to transition to reopening. (5/15/20)
    • The CDC released (5/14/20) guidelines and decision tools for reopening:
    • FEMA released an Exercise Starter Kit with sample documents organizations can use to conduct planning workshops to navigate the complexities of returning to full operations during the COVID-19 pandemic. (5/12/20)

Federal Communications Commission   

  • The FCC announced that 774 broadband and telephone providers have extended a pledge to assist residential and small business customers that are impacted by the COVID-19 pandemic. The commitment now extends through June 30. (5/14/20)
    • FCC also extended temporary waivers through June 30 for Telecommunications Relay Service providers. (5/14/20)

Department of Health and Human Services   

  • The Department of Health and Human Services (HHS) Coronavirus toolkit page has been updated. (Updated 5/18/20)
  • HHS announced a partnership with several pharmaceutical companies—including Phlow Corporation, AMPAC Fine Chemicals, Civica Rx, and the Medicines for All Institute at the Virginia Commonwealth University—to expand capabilities to manufacture active pharmaceutical ingredients and chemical compounds to make critical medicines. (5/19/20) (New)
  • HHS announced $11 billion in funding under the Paycheck Protection Program and Health Care Enhancement Act for COVID-19 testing. The funding will be provided through the CDC and Indian Health Service to states, territories, and tribes. A list of funding recipients is available here. (5/18/20) (New)
  • The HHS Office of the Assistant Secretary for Preparedness and Response (ASPR) issued a request for information seeking industry input on the proposed strategy and structure of the strategic national stockpile. Responses are due by May 29. (5/15/20) (New)
  • The HHS Office of Inspector General has updated its FAQs and updated its COVID-19 webpage. (5/14/20)
  • 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 5/18/20)
  • The President announced changes to the supply and maintenance of the strategic national stockpile (SNS), which will include new requirements for a 90 day supply of testing, ventilators, respirators, and other materials in preparation for future COVID-19 resurgence. (5/14/20)
  • The Agency for Healthcare Research and Quality (AHRQ) announced a new funding opportunity that will award $5 million to support novel, high-impact studies that evaluate the responsiveness of the U.S. health care system to the COVID-19 pandemic. (5/14/20)
  • 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)

Centers for Disease Control and Prevention  

  • The Centers for Disease Control and Prevention (CDC) COVIDView Weekly Summary is available. (Updated 5/15/20)
  • The CDC weekly COVID forecast. (Updated 5/14/20)
  • The CDC updated its guidance on how workers and employers can manage workplace fatigue during COVID-19. (Updated 5/19/20)
  • The CDC updated its guidance for visitors of parks and recreational facilities. (Updated 5/19/20)
  • The CDC updated its guidance for pediatric health care providers to address current information on multisystem inflammatory syndrome in children. (Updated 5/19/20)
  • The CDC updated its interim infection prevention and control recommendations for patients with confirmed or suspected COVID-19 in healthcare settings. The update removes the recommendation that all elective procedures be postponed. (Updated 5/18/20)
  • The CDC updated its guidance on how health care professions can optimize the supply of personal protective equipment (PPE). (Updated 5/18/20)
  • The CDC updated its guidance and strategy on COVID-19 serology surveillance. (Updated 5/17/20) (New)
  • The CDC updated its COVID-19 contact tracing protocol and training plan. (Updated 5/15/20)
  • The CDC updated its guidance on caring for children to help stop the spread of COVID-19. (Updated 5/15/20)
  • The CDC has issued COVID-19 guidance for the general population’s use of emergency shelters during natural disasters. (5/15/20)
  • The CDC has updated its approved disembarkations list for cruise ship crew members in U.S. waters following certain attestation requirements. (5/15/20)
  • The CDC announced the award of $10.25 billion to states, localities and territories to expand COVID-19 testing and surveillance. The state-by-state funding list includes previous allocations. (5/15/20)
  • The CDC updated its guidance for veterinary clinics in treating companion animals during the COVID-19 response. (5/14/20)
  • The CDC released a health advisory warning of COVID-19 related multisystem inflammatory syndrome in children. (5/14/20)

Centers for Medicare & Medicaid Services  

  • The Centers for Medicare and Medicaid Services (CMS) latest news alerts. (Updated 5/19/20)
  • And for the latest COVID-19 related CMS guidance and FAQs visit the CMS Current Emergencies webpage. (Updated 5/18/20)
  • CMS updated its guidance on billing codes for COVID-19 testing. The guidance lists the payment amount for COVID-19 testing by each Medicare Administrative Contractor (MAC). (Updated 5/19/20)
  • CMS has updated its list of blanket waivers with language modifying physical environment waivers to allow greater flexibilities for surge capacity and to modify the data collection and reporting period for ground ambulance organizations. (Updated 5/19/20)
  • CMS has updated its FAQs for Medicare fee-for-service billing. (5/15/20)
  • CMS announced a call for nominations for the new contractor-led Coronavirus Commission on Safety and Quality in Nursing Homes. The Commission will conduct a comprehensive assessment of the overall response to the COVID-19 pandemic in nursing homes and will inform immediate and future actions to address the virus in order to safeguard the health and quality of life for this vulnerable population of Americans. (5/14/20)
  • CMS released a new Toolkit on actions by states and other organizations to mitigate COVID-19 prevalence in nursing homes. The toolkit is not CMS guidance but is comprised of best practices from front line health care providers, Governors’ COVID-19 task forces, associations, and experts. (5/14/20)
  • 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. (5/12/20)
  • 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)

HHS/CMS/HRSA CARES Act Provider Relief Funds   

  • 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: (Updated 5/14/20)
  • The CDC released updated data on the Provider Relief Funding General Distribution payments. The data reflect payments distributed to health care providers who have attested to receiving one or more payments and agreed to the Terms and Conditions as of May 13 and in total, $34.09 billion of the $50 billion General Distribution has been attested to. (Updated 5/15/20)
  • Provider Relief Funds general distribution FAQs The updated FAQs clarify that “providers may not receive a second distribution payment if the provider received a first distribution payment of equal to or more than 2% of patient revenue.” It also states providers should update their capacity and COVID-19 census data “to ensure that HHS can make timely payments in the event that the provider becomes a high-impact provider.” (Updated 5/15/20)
  • A&B Quick Guide to the health care Provider Relief Fund General Distribution Attestation and Application Process – (Update 5/12/20)
  • The CARES Provider Relief Fund hotline is (866) 569-3522.

Food and Drug Administration  

  • FDA provides a daily roundup on COVID-19 related actions. The latest update is here, and here are the latest announcements. (Updated 5/19/20)
    • FDA maintains its COVID-19 FAQs for the general public. (Updated 5/19/20)
    • The agency also maintains a public database of drug shortages. (Updated 5/19/20)
  • The FDA and U.S. Department of Agriculture announced a memorandum of understanding to help prevent interruptions at FDA-regulated food facilities. (5/19/20) (New)
  • The FDA announced that it had entered into an agreement with Aetion to collaborate on data analysis related to COVID-19 research. (5/19/20) (New)
  • The FDA updated its FAQs on the Emergency Use Authorization (EUA) for remdesivir. (Updated 5/16/20)
  • The FDA announced that it was issuing an EUA to Everlywell, Inc. for the first at-home sample collection kit for COVID-19 diagnostic testing. (5/16/20) (New).
  • The FDA updated its guidance on the conduct of clinical trials of medical products during COVID-19. (Updated 5/14/20)
  • The FDA released information to alert the public to early data that suggests potential inaccurate results from using the Abbott ID NOW point-of-care test to diagnose COVID-19. (5/14/20)
  • The FDA has updated its guidance for compounders that experience PPE shortages. (5/14/20)
  • The FDA issued an emergency use authorization to Hologic, Inc. for its Aptima SARS-CoV-2 assay which runs on its high-throughput Panther System and is estimated to produce 1 million tests per week. (5/14/20)

National Institutes of Health  

  • The National Institutes of Health (NIH) announced it was beginning clinical trial testing of hydroxychloroquine and azithromycin to treat COVID-19. (5/14/20)

Health Resources and Services Administration   

  • The Health Resources and Services Administration (HRSA) provides COVID-19-related information, resources, and FAQs here. (Updated 5/17/20)

Department of Homeland Security/FEMA   

  • The Department of Homeland Security (DHS) issues a weekly roundup of its response to COVID-19. (Last updated 5/18/20)
  • The Federal Emergency Management Agency (FEMA) issued a fact sheet on its efforts to expand the supply chain of critical resources. (5/18/20) (New).
  • FEMA has released state-by-state PPE data which includes the delivery or shipping of more than 97 million respirators, 133.7 million surgical masks, 10.5 million face shields, 22.4 million surgical gowns, 989 million gloves, 10,600 ventilators and 8,450 federal medical station beds. Also posted is an at-a-glance document on the PPE deliveries per region. (5/15/20)
  • FEMA has updated its policy on medical care costs eligible for public assistance and better coordination between the COVID-19 emergency response and other emergency disasters. (5/14/20)
  • FEMA has posted a public meeting notice for Thursday, May 21 to develop a voluntary agreement under the Defense Production Act to improve the effectiveness of the distribution of critical medical resources to respond to future pandemics. (5/14/20)
  • The DHS Cybersecurity and Infrastructure Security Agency (CISA) updated its guidance on essential critical infrastructure workforce. (Updated 5/19/20)

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

  • The Department of Justice announced that it charged an individual with fraudulently obtaining $5 million in PPP loans from two different banks. The DOJ alleged that the individual lied that he had 400 employees when in reality none worked for his purported businesses. (5/19/20) (New)
  • A&B attorneys provide analysis on how the Consumer Financial Protection Bureau (CFPB) is responding to consumer complaints about mortgage and credit card terms during the pandemic. (5/18/20) (New)
  • On May 18, FTC and SBA sent warning letters to two companies that may be misleading small businesses seeking SBA loans as a result of COVID-19. One of the companies has claims like “Your Paycheck Protection Program Loan starts here!” while the other claims it is an authorized SBA loan packager for PPP and advertised its services for a $495 fee, despite the SBA prohibiting lead generators or other agents from charging fees to PPP loan applicants. The FTC’s letters warn the companies to take immediate action to ensure all deceptive claims are removed and to remediate any harm to small business consumers as a result of the claims. The recipient companies must also notify the FTC within 48 hours what specific actions they took to address the agency’s concerns. (New)
  • On May 15, the FTC advised nursing homes and assisted living facilities that they cannot take residents’ stimulus payments simply because the resident is on Medicaid. The Iowa Attorney General’s Office and other State AGs have received reports that these facilities have been requiring residents to sign over their stimulus payments against the CARES Act directives. According to the CARES Act, those economic impact payments are considered tax credits which do not constitute “resources” for federal benefits programs, including Medicaid. (New)
  • The Department of Justice Antitrust Division issued its third expedited business review letter (BRL) related to COVID-19 collaborations, this time in connection with collaboration by pork producers and processors. COVID-19 outbreaks forced many meat plants to close, leading to a reduction in processing capacity. As a result, some hogs are now unmarketable because they have grown too large to fit on processors’ production line equipment. DOJ approved the National Pork Producers Council’s proposal to allow its members to coordinate with each other and the USDA and share information to address these supply chain issues. Consistent with its prior expedited BRLs, DOJ said it would not challenge conduct aimed at addressing COVID-19 if it is (i) “compelled by an agreement with a federal agency or a clearly defined federal government policy” and (ii) “supervised by a federal agency.” DOJ found that most of the proposed coordinated conduct would occur at the direction of the USDA, and that information to be shared independent of the government – including euthanization methods, protocols, equipment, or processors – would be unlikely to raise concerns under the antitrust laws. (5/15/20)

Litigation Issues   

  • 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)

Department of Labor/OSHA   

  • The Department of Labor (DOL) updated its resources for employers, employees, and states to prevent unemployment insurance fraud. (5/19/20) (New)
  • The Occupational Safety and Health Administration (OSHA) announced that it was revising two enforcement policies regarding COVID-19. First, OSHA updated its interim enforcement response plan for COVID-19 to increase in-person inspections at all types of workplaces. Second, OSHA updated its enforcement guidance requiring employers to record work-related coronavirus cases. (5/19/20) (New)
  • OSHA announced that it was making $11.5 million available in grants to non-profits to support training on workplace safety and health hazards. (5/19/20) (New)
  • OSHA jointly with the CDC announced guidance for meat and poultry processing workers and employees. (5/15/20)
  • OSHA announced an alert for rideshare, taxi, and car service safety during the COVID-19 pandemic. (5/14/20)

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 and Treasury updated their FAQs on the Paycheck Protection Program to provide guidance extending the SBA Form 1502 reporting deadline for lenders (question 48). (Updated 5/19/20)
  • The SBA issued an interim final rule that provides guidance to entities with foreign affiliates regarding PPP loan forgiveness. (5/19/20) (New).
  • The SBA updated its Round 2 loan statistics, noting that it had processed 2.75 million in applications from 5,479 lenders and totaling $194.8 billion in loans. The Round 2 PPP data has been updated as well. (Updated 5/16/20)
  • The SBA issued an interim final rule for the PPP, relating to electric cooperatives. (5/14/20)
  • Review this A&B advisory for information on relief under the CARES Act for fund managers. (5/5/20)

Department of Treasury/IRS/Federal Reserve   

  • The Department of Treasury website for CARES Act programs, including specific sections on assistance for American workers and families, small businesses, state and local governments, and preserving jobs for American industry.
  • The Federal Reserve Board has announced a temporary change to the supplementary leverage ratio rule, providing flexibility to certain depository institutions to expand their balance sheets in order to provide credit to households and businesses during the pandemic. (5/15/20)
  • The Federal Reserve Board issued a Report on the Economic Well-Being of U.S. Households. (5/14/20)
  • 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. 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)

Other Agencies   

  • The S. Department of Agriculture (USDA) announced details of its Coronavirus Food Assistance Program (CFAP), which will provide $19 billion in direct payments to farmers and ranchers and to purchase produce, dairy, and meat for Americans in need. Additional information on CFAP is available here. (5/19/20) (New)
  • The USDA announced its Farmers to Families Food Box program which is intended to move farm products directly to food pantries and community food programs. (5/15/20)
  • The USDA has extended its waivers for child nutrition program operators who need flexibility to continue their nutrition programs through the summer. (5/15/20)
  • Cybersecurity: For an update on recent key developments in privacy, data security, and all things cyber, read this A&B Digital Download. (5/12/20)
  • The Environmental Protection Agency (EPA) issued an additional temporary amendment to Pesticide Registration Notice 98-10 to include food-contact surface sanitizer products containing the active ingredient isopropyl alcohol. This allows manufacturers of food-contact surface sanitizer products containing isopropyl alcohol to use similar sources of this active ingredient without EPA approval. This amendment should increase availability of food-contact surface sanitizers, benefiting facilities processing low moisture products like grains, cereal, flour, and industrial baked goods, which have been experiencing sanitizer shortages. (5/15/20)
  • The EPA, with the U.S. Department of Agriculture, announced assistance to help 16 communities boost economic opportunities for their local farmers, while promoting clean air, safe water, open space, and healthy food choices. (5/14/20)
  • The Department of Housing and Urban Development (HUD) announced a fourth series of CARES Act funding totaling $75 million to assist people living with disabilities. Information on the local impact of the assistance is available here. (5/18/20) (New)
  • In a program jointly lunched by the Department of HUD, the Consumer Financial Protection Bureau, the Federal Housing Finance Agency and the Department of Veterans Affairs, a website has been created to offer joint housing and mortgage assistance. (5/15/20)
  • 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)
  • The President also released an executive order to increase the development of domestic medical supply manufacturing through an International Development Finance Corporation loan program. (5/14/20)
  • The Department of Transportation (DOT) Federal Motor Carrier Safety Administration published a final rule updating hours of service rules for commercial motor vehicle drivers to increase safety on America’s roadways. (5/14/20)

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 U.S.-Canada Border To Remain Closed Through June 21. Canadian Prime Minister Justin Trudeau during his daily press conference commented that “[i]t was the right thing to further extend by 30 days our closure of the Canada, U.S. border to travelers other than essential services and goods, but we will continue to watch carefully what’s happening elsewhere in the world and around us as we make decisions on next steps.” (New)
  • USDA APHIS Allows Electronic Copies of Veterinary Certificates and Phytosanitary Certificates Due to COVID-19 through July 18. The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service has extended the interim guidance for the electronic submission of veterinary health certificates, phytosanitary certificates, and PPQ 203 forms for shipment clearance due to COVID-19 pandemic. The guidance is now effective through July 18, 2020. (New)
  • 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 - 5/17/20)
  • The Massachusetts Joint Committee on Financial Services announced that in lieu of a public hearing, it will accept written testimony in connection with Bill S.2655, an Act purporting to require certain insurance companies to provide business interruption insurance coverage to their insureds in connection with losses arising out of the COVID-19 pandemic. Written testimony may be submitted during business hours on May 21. Submission information is available here. (New)
  • On May 15, the Louisiana Senate proposed an Amended Senate Bill 477. The original bill would have retroactively required insurers to provide business interruption coverage for COVID-19 related business income losses, regardless of policy language. The May 15 amended bill nixes the controversial retroactive requirements and instead requires that all policies issued after August 1 “include a notice of all exclusions on a form prescribed by the commissioner of insurance” which shall “be conclusively presumed to become a part of the policy of contract when issued and delivered.” (New)
  • On May 11, the Pennsylvania Insurance Commissioner warned businesses that failure to comply with Governor Wolf’s closure orders could compromise business interruption coverage claims as “many insurance policies contain provisions that exclude coverage for businesses or individual’s engaging in illegal acts or conduct.” (New)
  • 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.
  • The pace of new business income coverage claims flooding state and federal courts nationwide has not slowed over the last few weeks. Notable filings and orders include:
  • On May 19 Lexington Pain & Wellness Center, PSC, a provider of chiropractic services, filed suit in Kentucky state court against its insurer Erie Insurance Exchange. Plaintiff alleges a variety of state law claims including breach of contract, declaratory judgment, violation of Kentucky’s Unfair Claims Settlement Practices Act, common law bad faith, and common law negligence. The case is Lexington Pain & Wellness Center, PSC v. Erie Insurance Exchange, et al., No. 20-CI-01494 (Fayette Cir. Ct., Ky.). (New)
  • On May 18 Bauer Family Enterprises filed suit in the United States District Court for the Middle District of Florida against its insurer, Ohio Security Insurance Co. Plaintiff seeks a declaratory judgment from the Court stating that the virus exclusion contained in Plaintiff’s insurance policy does not apply to loss of income resulting from the state “Safer at Home” Orders. The case is Bauer Family Enterprises, Inc. v. Ohio Security Ins. Co., No. 3:20-cv-500 (M.D. Fla.). (New)
  • On May 15 Ital Uomo of New York Inc., a clothing and accessory business, filed suit in the United States District Court for the Eastern District of New York against its insurers Starr Indemnity & Liability Company and Starr International Company Inc., alleging claims for breach of contract and declaratory judgment. Plaintiff seeks to represent a multistate class of insureds in New York, Massachusetts, Pennsylvania, California, Washington, Colorado, Arizona, Georgia, Florida, Tennessee, Illinois, Missouri and Texas, provided that the insured’s policies do not exclude coverage for pandemics. Plaintiff also seeks to represent a New York sub-class. The case is Ital Uomo of New York Inc., et al. v. Starr Indem. & Liab. Co., et al., No. 2:20-cv-2209 (E.D.N.Y.). (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:

Situation Updates:

Information for Businesses:

Information for Travel and Transportation:

Information for Health Care Providers, First Responders, and Research Facilities:

Information for Schools and Childcare Providers:

Information for Community Events and Gatherings:

Alston & Bird Coronavirus Links

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