Coronavirus Flash Update May 22, 2020

Coronavirus Flash Update: May 22, 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 FRIDAY, MAY 22, 2020

The Latest News

  • U.S. COVID-19 cases exceed 1,584,800 and 94,722 U.S. deaths. (Source: CDC) (Updated 5/22/20)
  • U.S. stock market: On Thursday the major benchmarks posted losses, with the Dow dropping 101 points, the S&P 500 losing 23 points, and the Nasdaq falling 90 points. (New)
  • The Department of Labor released the weekly unemployment report showing that 2.4 million Americans applied for initial unemployment benefits last week, bringing the nine-week total to 38.6 million. (New)
  • The Congressional Budget Office released its Interim Economic Projections for 2020 and 2021, projecting the U.S.’s real gross domestic product to contract by 11.2% in the second quarter of 2020 and by 5.6% for the year. Unemployment is expected to average 15.1% in the second quarter and 15.8% in the third quarter of 2020, before gradually dropping to 8.6% in the last quarter of 2021. Unemployment is projected to average 11.5% in 2020 and 9.3% in 2021. (New)

COVID-19 Federal & State Legislation   

  • Bill 4.0: As Congress heads into the Memorial Day weekend, the stalemate remains between Senate Republicans who wish to hold off before considering any additional emergency stimulus bill and House Democrats who are pushing for action on their HEROES Act passed last week or something comparable. Senators continue discussions on liability protection for businesses, schools, and other entities, and Senator Lamar Alexander (R-TN) reflected the view voiced by many of his colleagues earlier this week when he said that such protection would need to be included in the next stimulus bill, stating “[S]chools, colleges, and businesses will be less likely to reopen if they think they’re going to be sued when someone gets sick when they come back to school, back to college, or back into their businesses.” Whether to include aid, and how much, for state and local governments remains an area of division between the Republicans and Democrats, although Senators Bill Cassidy (R-LA) and Bob Menendez (D-NJ) introduced a bill earlier this week to target $500 billion for frontline state and local communities in the greatest need. The U.S. Chamber of Commerce also weighed in when Neil Bradley, Chief Policy Officer with the Chamber, told reporters that there “is an important role for targeted and temporary assistance to state and local governments.” Senate Majority Leader Mitch McConnell (R-KY) has ramped up the divide on the issue of whether to extend the enhanced unemployment benefits in the relief package by telling his Republican caucus that he is not ready to support an extension. These issues and others will be waiting when Congress returns from the holiday weekend. (New)
  • For the full details on the HEROES Act, H.R. 6800, which passed the House on May 15:
  • 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:
  • 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 5/20/20)
    • The National Waste & Recycling Association has prepared a summary of state mandates and recommendations for face coverings and temperature taking. (5/15/20)
  • Administration Actions
    • The CDC issued a new detailed report on its activities and initiatives that support the transition to reopening. (5/20/20) (New)
    • CMS announced 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)
    • 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 updated or released guidance 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 approved an additional 43 funding applications for the COVID-19 Telehealth Program, totaling $16.78 million. (5/20/20) (New)
  • The FCC and FTC sent warning letters to gateway providers for allegedly allowing COVID-19 pandemic-related scam robocalls into the United States. The agencies warned these companies to cut off this traffic or face serious consequences. (5/20/20) (New)
  • 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 5/21/20)
  • HHS announced that it has begun distributing nearly $4.9 billion in additional relief funds to skilled nursing facilities (SNFs) to help them combat the devastating effects of the pandemic. HHS will make relief fund distributions to SNFs based on both a fixed basis and variable basis. All certified SNFs with six or more certified beds are eligible for this targeted distribution. (5/22/20) (New)
    • HHS also provided the terms and conditions for accepting these SNF Relief Fund Payments. (5/22/20) (New)
  • HHS, through HRSA, provided $225 million to Rural Health Clinics for COVID-19 testing through the Paycheck Protection Program and Health Care Enhancement Act. (5/20/20) (New)
    • A state-by-state breakdown is available here. (5/20/20) (New)
  • HHS Biomedical Advanced Research and Development Authority (BARDA) announced an agreement with AstraZeneca to accelerate the development and manufacturing of the company’s investigational vaccine. The agreement is part of Operation Warp Speed. (5/21/20) (New)
  • 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)
  • 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)
  • The HHS Office of the Assistant Secretary for Preparedness and Response (ASPR) released a Healthcare Facility Onboarding Checklist for hospitals and other facilities to use in streamlining staff acquisition and the onboarding process in times of need. (5/20/20) (New)
  • ASPR posted a new webpage detailing information on the remdesivir allocation process. (5/21/20) (New)
  • ASPR also 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)
  • The HHS Office of Inspector General 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 5/21/20)
  • 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)

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 5/21/20)
  • The CDC released a new resource with ASPR on COVID-19 Pandemic Planning Scenarios, designed to help inform decisions by mathematical modelers and public health officials who use modeling. Models developed using the data provided in the planning scenarios can help evaluate the potential effects of different community mitigation strategies. (5/20/20) (New)
  • The CDC updated its information on serology testing for COVID-19 at CDC. (Updated 5/20/20)
  • The CDC updated its information on contact tracing and case investigation. (Updated 5/20/20)
  • The CDC created a website compiling publications about COVID-19 for laboratories. (5/20/20) (New)
    • The CDC also updated its FAQs for laboratories. (Updated 5/20/20)
  • The CDC updated its considerations for inpatient obstetric healthcare settings. (Updated 5/20/20)
  • 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 5/20/20)
  • 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 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 5/21/20)
  • 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 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 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 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)

HHS/CMS/HRSA CARES Act Provider Relief Funds   

  • HHS issued a statement notifying eligible providers that they have until June 3, 2020, to accept the Terms and Conditions and submit their revenue information for additional payments from the Provider Relief Fund $50 billion General Distribution. (5/20/20) (New)
  • HHS updated the CARES Act Provider Relief Fund FAQs. (Updated 5/21/20)
  • 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)
  • 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 5/21/20)
    • 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 5/21/20)
    • FDA maintains its COVID-19 FAQs for the general public. (Updated 5/21/20)
    • The agency also maintains a public database of drug shortages. (Updated 5/21/20)
  • The FDA issued guidance for supplements for approved premarket approval or humanitarian device exemption submissions. (5/21/20) (New)
  • 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)
  • 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)
  • 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)
  • 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)
  • DHS released a fact sheet explaining the extended measures placed on S. borders to limit the further spread of COVID-19. (5/20/20) (New)
  • The Federal Emergency Management Agency (FEMA) provided COVID-19 Pandemic Operational Guidance for the 2020 hurricane season. (5/20/20) (New)
  • FEMA updated its fact sheet on PPE packages for nursing homes. (Updated 5/20/20)
  • FEMA issued a fact sheet on its efforts to expand the supply chain of critical resources. (5/18/20)
  • 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 Federal Trade Commission sent warning letters to 50 more marketers nationwide to stop making unsubstantiated claims that their products and therapies can treat or prevent COVID-19. (5/21/20) (New)
  • The Department of Justice announced that it charged an individual with fraudulently obtaining $20 million in PPP loans for two companies that had no employees. The defendant allegedly claimed that his companies were helping New York State obtain COVID-19 test kits and personal protective equipment. (5/21/20) (New)
    • DOJ earlier this week charged another defendant with fraudulently seeking $5 million in PPP loans from two different banks. (5/19/20)
  • 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)
  • 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.
  • 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.
  • 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)

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)
  • The Department of Labor announced publication of a final rule that expands the ability of private sector employers to communicate retirement plan information online or by email. (5/21/20) (New)
  • The Department of Labor announced a final rule that allows employers to pay bonuses or other incentive-based pay to salaried, nonexempt employees whose hours vary from week to week. The final rule clarifies that payments in addition to the fixed salary are compatible with the use of the fluctuating work week method under the Fair Labor Standards Act (FLSA). (5/20/20) (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)
  • 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)
  • 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 released a procedural notice informing PPP Lenders of the reporting process through which PPP Lenders will report on PPP loans and collect the processing fee on fully disbursed loans which they are eligible to receive. (5/21/20) (New)
  • The SBA issued a PPP interim final rule, extending the safe harbor deadline to May 18, 2020. (5/20/20) (New)
  • The SBA updated its total loan statistics, noting that it has approved 4.4 million loans, totaling $512 billion in loans through 5,506 participating lenders. (Updated 5/21/20)
  • 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)
  • The SBA issued an interim final rule for the PPP, relating to electric cooperatives. (5/14/20)

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, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Office of the Comptroller of the Currency released principles for offering responsible small-dollar loans to meet financial institutions’ customers’ short-term credit needs. (5/20/20) (New)
  • 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)

Other Agencies   

  • The S. Department of Agriculture (USDA) announced that it is making available up to $1 billion in loan guarantees to help rural businesses meet their working capital needs during the coronavirus pandemic. (5/21/20) (New)
  • The Internal Revenue Service (IRS) announced that the 2020 IRS Nationwide Tax Forums will be held virtually in 2020 with a series of live-streamed webinars beginning this July. (5/21/20) (New)
  • The Transportation Security Administration (TSA) announced that it has implemented changes to the security screening process that reduce the potential for cross-contamination at the security checkpoint in an effort to help prevent the spread of COVID-19. (5/21/20) (New)
  • The Federal Housing Finance Agency (FHFA) announced that it is seeking comments on a notice of proposed rulemaking that would establish a new regulatory capital framework for Fannie Mae and Freddie Mac. (5/20/20) (New)
    • FHFA also issued temporary guidance regarding the eligibility of borrowers who are in forbearance, have recently ended their forbearance, are looking to refinance, or buy a new home. (5/19/20) (New)
  • The 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)
  • 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)
  • 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.”
  • 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.

Insurance Issues   

  • For a 50-state review of business interruption insurance related issues see this new COVID-19 Insurance Litigation and Regulatory Issues Tracker. The tracker is updated weekly. (last updated 5/17/20)
  • On May 19, the Organized Dentistry Coalition (the “ODC”) sent a letter to Congress recommending that it support HR 6494, the Business Interruption Insurance Coverage Act, which if passed would require insurers to “make[] available business interruption insurance coverage” for COVID-19 related losses for an increased premium. The ODC noted that many dental practices have “learned that their policies do not cover government-ordered business shutdowns caused by a national emergency” and that the lack of coverage has had a “substantial negative impact” on dental practice owners. However, the ODC acknowledged that “abrogating or re-writing contracts at this time could potentially have a deleterious impact on the property and casualty insurance industry, as current policy premiums did not account for the risk associated with these pandemic-related losses when they were calculated.” (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, 2020 “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.”
  • 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. Notable filings and orders include:
    • On May 19, a federal district judge for the Western District of Pennsylvania remanded Plaintiff Dianoia’s Eatery, LLC’s Complaint seeking declaratory relief for business interruption losses back to state court for lack of subject matter jurisdiction. The court cited uncertainty regarding whether it had diversity jurisdiction, and also noted that the Complaint “raise[d] novel insurance coverage issues under Pennsylvania law which are best reserved for the state court to resolve in the first instance.” The case is Dianoia’s Eatery, LLC v. Motorists Mut. Ins. Co., No. 2:20-cv-00706-NBF (W.D. Pa.). (New)
    • On May 19, iAthlete & Fitness LLC dba Results Fitness filed suit in Ohio state court against its insurer, The Cincinnati Insurance Company, seeking damages for breach of contract and bad faith claims. Plaintiff alleges that Defendant wrongfully denied plaintiff’s claims for lost business income and extra expenses resulting from the COVID-19 pandemic and related government closure orders. The case is iAthlete & Fitness LLC v. The Cincinnati Ins. Co., No. CV-20-932683 (Cuyahoga Cnty. Ct. of C.P.). (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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Marilyn K. Yager
Senior Policy Advisor
Phone: +1 202 239 3341
Email: marilyn.yager@alston.com
Brandon Springer
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Email: brandon.springer@alston.com
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