Coronavirus Legislative Update

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Introduction

The coronavirus crisis has created unprecedented emergency challenges for corporations, associations, and small businesses. These challenges cut across traditional legal disciplines and require a coordinated effort to problem-solve in a timely and effective manner. This update summarizes some of the actions the federal government has taken in the last few days to address the coronavirus crisis.

Related Webinar

Arnold & Porter hosted "The Coronavirus Crisis: What Companies Need to Know About Congressional Actions to Date and the Likely Next Legislative Steps on the Road to Recovery," a webinar designed to help guide clients through the federal government's evolving response to the coronavirus and also forecast additional steps Washington, DC may take. We encourage those who anticipate needing federal government intervention in their industry or sectors as a result of the coronavirus to watch the recording.

Congressional Action

Early on the morning of March 14, the House passed a second stimulus package, entitled the Families First Coronavirus Response Act (H.R.6201)(the bill), by a vote of 363-40.¹ The Senate will consider the Families First Coronavirus Response Act early this week, and the House will pass a technical corrections bill Monday, March 16, to address a few drafting errors that negatively affect small businesses. After President Trump tweeted his support for the bill late Friday night, it passed the House with strong bipartisan support.² Over the weekend, some Republican Senators raised concerns about the unpaid leave requirements that apply to small businesses, and this appears to be the major obstacle to final passage in the Senate this week.

Major elements of the bill are covered below.

Healthcare Funding

Insurance Coverage of Testing: The bill requires group health plans and issuers offering group or individual health coverage³ (including grandfathered health plans) to cover in vitro diagnostic products, health care provider office visits, urgent care center visits, and emergency room visits resulting in an order for or administration of a coronavirus diagnostic test. Coverage must be provided without patient cost sharing (including deductibles, copayments, and coinsurance) requirements or prior authorization. The Secretaries of Health and Human Services (HHS), Labor, and Treasury may issue guidance to implement this requirement.

Waiving Cost Sharing Under the Medicare Program for Certain Visits Relating to Testing: The bill requires Medicare Part B to waive beneficiary cost sharing for coronavirus diagnostic tests and associated provider visits resulting in an order for or administration of a test. Plans may not impose prior authorization or other utilization management requirements. The bill includes the following categories for the Healthcare Common Procedure Coding System (HCPS): office and other outpatient services; hospital observation services; emergency department services; nursing facility services; domiciliary, rest home, or custodial care services; and home services. The bill also requires the Secretary of HHS to provide a modifier to include on claims to identify these services.

Coverage of Testing for Coronavirus at No Cost Sharing Under the Medicare Advantage Program: The bill requires Medicare Advantage plans to cover coronavirus diagnostic tests and administration of those tests, and to waive beneficiary cost sharing. Plans may not impose prior authorization or other utilization management requirements.

Coverage at No Cost Sharing of Coronavirus Testing Under Medicaid and CHIP: The bill requires Medicaid and CHIP to both cover coronavirus diagnostic tests and administration of those tests, and to waive beneficiary cost sharing. The bill also provides states with flexibility to expand Medicaid coverage of coronavirus diagnostic tests to uninsured populations.

Temporary Increase of Medicaid FMAP: Until the end of the quarter during which the coronavirus emergency ends, the Federal Medical Assistance Percentage (FMAP) in all states and territories will increase by 6.2%. In order to receive the increased FMAP, states may not: (1) reduce eligibility standards, (2) increase premiums, (3) terminate enrollment, (4) conduct more frequent income checks, or (5) fail to cover coronavirus tests, treatments, vaccines, and therapies without beneficiary cost sharing.

Increase in Medicaid Allotments for Territories: The bill increases Medicaid allotments for Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa.

Clarification Relating to Secretarial Authority Regarding Medicare Telehealth Services Furnished During Coronavirus Emergency Period: The bill provides technical change under the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (Pub. L. 116-123) to include new Medicare beneficiaries with those who can access telehealth services in a national emergency.

Treatment of Personal Respiratory Protective Devices as Covered Countermeasures: The bill expands the definition of covered countermeasures under the PREP Act Declaration to include personal respiratory protective devices (e.g., face masks) until October 1, 2024. This would protect mask manufacturers from certain liabilities regarding personal injury claims.

Public Health and Social Services Emergency Fund: To ensure no uninsured American is charged for coronavirus testing, the bill appropriates $1 billion, to remain available until expended, for the National Disaster Medical System to reimburse suppliers of coronavirus diagnostic tests for uninsured individuals and providers for services to uninsured individuals resulting in an order for or administration of a test .

Virus Reporting: The bill requires State and local governments to regularly update their State Emergency Operations Centers with data on testing and results from State and local public health departments. This data must also be transmitted to the Centers for Disease Control (CDC).

Defense Health Program (DHP): The bill appropriates $82 million for coverage of items and services to diagnose and treat coronavirus for DHP beneficiaries.

Veterans Health Administration: The bill appropriates a total of $60 million, across two programs, for coverage of services to diagnose and treat coronavirus for veterans.

TRICARE, Coverage for Veterans, and Coverage for Federal Civilians: The bill waives cost sharing for coronavirus diagnostic tests and the administration of those tests for TRICARE beneficiaries, covered veterans, and federal civilians.

Indian Health Services: The bill appropriates $64 million for coverage of items and services to diagnose and treat coronavirus for American Indian and Alaska Native Tribes receiving services through the Indian Health Service.

Indians Receiving Purchased/Referred Care: The bill requires HHS to cover, without beneficiary cost sharing, coronavirus diagnostic tests and administration of those tests, for those receiving health services through the Indian Health Service or its contract health system.

Food and Nutrition

Supplemental Nutrition Assistance Program (SNAP): The bill gives the U.S. Department of Agriculture (USDA) and states additional flexibility in administering SNAP during the coronavirus emergency. States are permitted to submit special waiver requests to USDA to provide temporary emergency SNAP benefits up to the monthly maximum for current participants. The bill gives USDA broad discretion on how states manage SNAP caseloads and suspends work and work training requirements during the public health emergency. USDA also is required to make available online the department's guidance on state flexibilities, as well as state requests for waivers and the department's response.

Child Care, School, and Adult Care Center Meals: The bill gives USDA and states additional flexibility to address the needs of more than 20 million school children who qualify for free or reduced school meals. The bill allows USDA to approve state plans that provide emergency SNAP assistance, through EBT cards, to families with children who would otherwise receive free or reduced-price meals, but for the school closures (of at least five consecutive days) related to coronavirus. The emergency SNAP assistance would apply to households regardless of whether they currently do or do not receive SNAP benefits. In addition, to minimize administrative burdens on the states, the bill authorizes USDA to issue nationwide school meal waivers throughout the coronavirus emergency. The bill also permits child and adult care centers to operate as non-congregate sites and waives all meal pattern requirements should they have a negative impact on a coronavirus emergency response.

Additional Food and Nutrition Programs: The bill includes funding for other food and nutrition programs administered by both USDA and HHS. The package appropriates more than $1 billion to support specific Food and Nutrition Service programs under USDA, including $100 million to support nutrition assistance grants for the US territories of Puerto Rico, American Samoa, and the Commonwealth of the Northern Mariana Islands.

The bill appropriates $500 million for the Special Supplemental Nutrition Program for Women Infants and Children (WIC) to support access to food for low-income pregnant women or mothers with young children who lose their jobs because of the coronavirus public health emergency.

The bill also provides $400 million ($300 million for the purchase of food and $100 million for the storage and distribution of food) to The Emergency Food Assistance Program (TEFAP), which allows USDA to purchase food and distribute it through local food banks experiencing increased demand.

The bill provides $250 million for the Senior Nutrition program in the Administration for Community Living (ACL). The provision is estimated to support about 25 million home-delivered and pre-packaged meals to low-income seniors who participate in the program and are home-bound, have disabilities, have multiple chronic illnesses, or are caregivers for seniors who are home-bound.

Labor and Employment

Unemployment Benefits: The bill includes several provisions for the Department of Labor to allocate $1 billion of emergency unemployment insurance (UI) benefit funding to states. The package includes $1 billion that the Department of Labor will allocate to states for the following purposes:

1. $500 million will be allocated to states for staffing, technology, and administrative costs associated with providing UI benefits as long as states meet certain criteria to ensure workers' access to these benefits, including: (1) requirements for employer notification about UI benefits to laid-off workers; (2) the ability for workers to apply for UI benefits online or via phone; and (3) consistent notification of workers about the status of their UI application throughout the process.
2. Another $500 million will be used for emergency grants to states that experience at least a 10% increase in their unemployment compensation claims compared to the same quarter last year. To receive these emergency grants, states must demonstrate that they have or are willing to ease eligibility requirements and access to unemployment compensation for workers impacted by the coronavirus, which may require some states to update their state laws or policies to access these emergency grants.

The bill also provides states with access to interest-free loans through December 31, 2020, to help pay UI benefits. In addition, the bill directs the Department of Labor to provide technical assistance to states interested in setting up work-sharing programs, which allows employers to reduce hours instead of laying off employees and provides employees with partial unemployment benefits to offset the wage loss. In addition to the emergency grants, states that experience at least a 10% increase in unemployment also are eligible to receive 100% federal funding for Extended UI Benefits, which typically would otherwise require a 50-50 cost share between states and the federal government.

Sick/Family Leave: The bill provides two different ways to provide paid benefits to employees affected by the coronavirus. The first involves amendments to the existing Family & Medical Leave Act (FMLA). The second provides a new emergency paid sick leave. Both apply only to private-sector employers with fewer than 500 employees and all governmental employers, and both provisions expire on December 31, 2020.

First, eligible employees (defined broadly as those who have been employed for thirty (30) days or more rather than the strict requirements of other types of FMLA leave) are entitled to take up to twelve (12) weeks of job-protected leave for the following coronavirus related reasons: (1) to follow a requirement or recommendation to quarantine because of exposure to or symptoms; (2) to care for a family member who may have been exposed to the coronavirus or exhibits coronavirus symptoms; or (3) to care for a child younger than 18 whose school is closed or child care provider who is unavailable.

This family and medical leave is unpaid for the first fourteen (14) days. Employers must allow the employee to substitute paid time off, but may not require the employee to do so. Following the 14-day period, workers would receive a benefit from their employers that is at least two-thirds of their normal pay rate. The Department of Labor is authorized to issue regulations to (1) exclude certain health-care providers and emergency responders from paid leave benefits, and (2) to exempt small businesses with fewer than 50 employees from the paid leave requirements.

Second, employers will be required to provide paid sick leave to all employees for the following coronavirus related reasons: (1) self-quarantine; (2) obtaining medical care if they are experiencing symptoms; (3) complying with a recommendation that the employee's physical presence on the job would risk exposure of coronavirus to others; (4) caring for a sick family member who may have been exposed or exhibits symptoms; and (5) care for a child whose school or child care facility has been closed or whose childcare provider is unavailable.

Full-time employees will be entitled to eighty (80) hours of paid sick leave at either their regular rate (for their own illness) or two thirds of the regular rate (for caring for a sick family member). Part-time employees will be entitled to paid sick leave in the amount equal to the average amount of hours they work over a two-week period. These amounts are in addition to paid sick leave already provided under the employer's existing sick leave policy.

Employers will be able to recover some costs associated with the paid emergency family and medical leave and emergency sick leave through tax credits.

Executive Branch Actions

Federal Disaster Declaration: On Friday, March 13, President Trump declared a federal state of emergency under the Stafford Act and the National Emergencies Act, which opens a range of potential policy responses, including federal aid to individuals as well as state and local governments. The administration is now able to utilize a roughly $40 billion fund for this response, providing federal matching funds to state and local emergency response efforts.

Healthcare: On January 31, HHS Secretary Alex Azar declared a public health emergency for the entire United States, pursuant to section 319 of the Public Health Service Act. Several HHS sub-agencies have taken actions in response. On March 13, CMS invoked its section 1135 waiver authority and announced several blanket waivers, including temporarily waiving the requirement that out-of-state providers be licensed in the state in which they are providing services. Also on March 13, CMS assigned payment rates to two Healthcare Common Procedure Coding System (HCPCS) codes (U0001, U0002), which allows laboratories performing the test to bill Medicare and other insurers for testing that occurred after February 4, 2020. FDA has also taken actions to improve patient access to coronavirus testing. Since the COVID-19 outbreak began, FDA has issued three Emergency Use Authorizations (EUAs) for diagnostic tests and used its enforcement discretion to allow certain laboratories to begin patient testing without seeking an EUA. As the COVID-19 pandemic evolves, CDC continues to issue guidance on surveillance and containment measures. Most recently, on March 15, CDC recommended that organizers of large events and mass gatherings (i.e., 50 or more people) cancel or postpone in-person events. We expect additional actions from the HHS in the coming days, including guidance implementing recent legislation on Medicare telehealth waivers and coverage requirements for COVID-19 tests.

Federal Reserve Actions: The Federal Reserve has taken several steps to offset the economic impact of the coronavirus. On Sunday, March 15, the Fed announced it would cut interest rates to zero—following on a prior emergency cut earlier this month—in a dramatic intervention to protect the economy. The central bank has also increased support to overnight lending markets to ensure liquidity in the banking system, and has now announced it will be buying at least $700 billion in government and mortgage-related bonds, in a restart of the financial crisis-era program of "quantitative easing." These steps suggest the Fed may turn to other emergency lending facilities and tools it used to provide liquidity during the 2007-2009 financial crisis. Congress may also expand the central bank's authority in a future stimulus package. For example, on March 15, Treasury Secretary Mnuchin suggested he may ask Congress to reinstate certain emergency lending powers that Treasury and the Fed had prior to the enactment of Dodd-Frank, though it remains to be seen whether Congressional support for such authority will materialize.

On March 15, several of the nation's largest banks announced a freeze on buybacks of their own shares through the end of the second quarter, in order to free up capital to deploy elsewhere to help the economy. The move was voluntary by the banks but had been encouraged by lawmakers including Sen. Sherrod Brown (D-OH), who is the ranking Democrat on the Senate Banking Committee.

Unemployment Benefits: The Department of Labor issued guidance on March 12 outlining the flexibility states have under current law to administer UI benefits as they navigate potential increases in unemployment due to the coronavirus.⁴ The guidance clarifies that states are allowed to pay UI benefits to individuals quarantined with the expectation of returning to work, as well as to those who leave employment to avoid exposure to the coronavirus or to care for a family member.

Child Care, School, and Adult Care Center Meals: Before the House bill passed and in response to school closures, the Secretary of Agriculture announced that states could request waivers from the school meals requirements. In fact, USDA had already waived the requirements for 25 states and the District of Columbia to provide meals outside of group settings.

Small Business Administration Disaster Loans: The Trump Administration announced last week that Small Business Administration (SBA) disaster loans are available to eligible businesses to weather the coronavirus pandemic. Economic injury disaster loans are available to small businesses that have suffered "substantial economic injury" as a direct result of a declared disaster.⁵ Economic injury disaster loans can provide working capital until normal operations resume. President Trump also called on Congress to approve an additional $50 billion in SBA lending authority, which we expect Congress to consider in a future stimulus package.

Student Loan Interest: During his speech declaring a national state of emergency, President Trump announced he is waiving interest on all student loans held by the federal government "until further notice." As a result, no interest will accrue while the waiver is in effect. According to the President, the move will provide relief to more than 42 million borrowers with $1.5 trillion in outstanding federal student loans. The White House and the Department of Education have not yet provided details on this announcement, as conversations continue around the Department's legal authority, but we expect those to be released in the coming days.

On March 5, the Department of Education released guidance to institutions of higher education to provide accommodations to students due to coronavirus disruptions (e.g., distance learning, Federal Work Study payments, cost of attendance adjustments, etc.).⁶ The Department says additional guidance may continue to be announced in the coming days and posted at https://www.ed.gov/coronavirus.

Federal Communications Commission: On Friday, March 13, the Federal Communications Commission (FCC or Commission) took several actions to ensure that the public can receive critical infrastructure services from communications providers and health care providers that offer telehealth and telemedicine services.

First, the Commission adopted an order to provide additional $42.19 million in funding for healthcare providers to have appropriate resources to provide telehealth services for members of the public who may not be able to reach a hospital in this time of need. The Order permits the Universal Service Administrative Company—an independent not-for-profit designated by the FCC to administer the Universal Service Fund—to carry forward unused funds from previous fiscal years to cover an anticipated gap for the current fiscal year and to waive the cap on both multi-year commitments and upfront payments.

Second, the Commission secured a number of commitments from the internet service providers and other providers of critical communications infrastructure to keep the public connected during the coronavirus crisis. Among other things, signatories to the "Keep America Connected Pledge" committed: (1) not to terminate services for subscribers failure to pay bills as a result of disruptions caused by the pandemic; (2) to waive late fees incurred because of economic circumstances related to the pandemic; and (3) to open Wi-Fi hotspots to "any American who needs them."

Service providers are also offering additional commitments beyond the Pledge in a number of instances. AT&T, for example, committed that all home internet wireline and fixed wireless internet customers can use unlimited data. The company also offered to underwrite expenses for "eLearning Days" from the State Educational Technology Directors Association (SETDA), and make those services available to all educators to assist in preparing virtual learning environments as schools and families respond to closures and disruptions caused by the pandemic.

Department of Energy to Purchase Oil for the Strategic Petroleum Reserve (SPR): The Department of Energy initiated a process to begin purchasing crude oil owned and produced in the United States for storage in the SPR. The Secretary of Energy directed the Assistant Secretary for Fossil Energy to begin creating an expedited process to purchase crude oil, which is now in progress. The SPR purchase also helps a domestic oil industry that has been hard hit in recent weeks by the unexpected Saudi-Russian oil price battle.

EPA Updates List of Approved Coronavirus Disinfectants: The Environmental Protection Agency (EPA) released an expanded list of EPA-registered disinfectant products that "have qualified for use against SARS-CoV-2, the novel coronavirus that causes COVID-19." There are 200 additional products on the updated list. EPA also cautioned that items on the list of approved products have not been tested specifically against the cause of coronavirus but are expected to be effective against it because of effectiveness against harder-to-kill viruses.

Future Federal Actions

Healthcare: We expect healthcare needs to be the driving force for any major piece of legislation moving through Congress in the next 90 days. The entire healthcare system will be under extraordinary stress for the next several months, and Congress will need to find a number of ways to support the industry. President Trump and the nation's hospitals have had an adversarial relationship on many policy issues over the last three years and now both parties need to fix that relationship to serve patients in need. Going forward, it will be hard to move healthcare policy items that do not have a first- or second-degree connection to the coronavirus crisis.

The executive branch will also be looking for innovative ways to create public-private partnerships to address the crisis. For example, the March 15 announcement that drive-in testing will be available at Walmart, CVS, and Walgreens locations across the country is the type of partnership that the Trump Administration will quickly embrace. The testing, countermeasures (masks), critical care (ventilators), and vaccine categories are particularly attractive and urgent partnership opportunities. The federal government is also likely to find ways to clear away regulations that hinder front-line healthcare provider capabilities in dealing with the crisis.

Financial Services: It is likely financial regulators take additional actions to mitigate the pandemic's impact on various sectors of the industry. For example, Senators from states that rely heavily on tourism and business travel asked the Federal Reserve, the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Conference of State Bank Supervisors to enact guidance to help the hospitality industry weather the ongoing coronavirus health crisis.⁷ The recommendations include enabling loan work-outs and allowing borrowers to defer payments without penalties, make interest-only payments, and refinance without fees. We expect financial regulators to enact some combination of these recommendations in the near future.

House Republicans are in the minority but reportedly intending to push a package of eight measures including continuity planning, touchless transactions, micro-offerings, and accounting standards relief, among other items. Senate Banking staff, meanwhile, are still in the process of sorting through priorities from individual Senators. Both chambers are tracking whether Secretary Mnuchin ultimately requests additional emergency lending authorities that he hinted at over the weekend.

Food and Nutrition: While the bill provided USDA and states with more flexibility to administer SNAP, school meals, and other food assistance programs, a third package may include additional funding depending on the magnitude of the coronavirus public health emergency. Some members of Congress are concerned that, if hourly workers must stay at home with no paid leave, the demand for SNAP benefits will increase dramatically. Yet, the current bill has limitations in place, as states are permitted to request a special waiver only to provide temporary, emergency SNAP benefits to existing—not new—recipients.

Employment: Per the instructions in the stimulus package, we expect the Department of Labor to issue regulations and guidance on the administration and implementation of the updated UI benefits provisions. This would provide states with additional clarity as they update their unemployment systems and policies. It will be up to each state to determine how to do so in accordance with the flexibility outlined in the Department's guidance, as well as in the stimulus package to ensure it can access the additional UI funds.

Higher Education: While the Administration considered pausing all student loan payments—not just interest—it ultimately decided not to do so. Such a provision could be attractive for the next stimulus package. In a proposal floated by Senate Democrats last week before the House and President Trump cut a deal, student loan payments would have been placed in forbearance for six months, with no fees, compounding interest, or negative credit ratings. The initial Senate Democratic proposal also would have provided emergency grant aid ($1.2 billion in one bill) to affected college students for housing, transportation, and childcare, in addition to protecting their Pell grant eligibility and other financial aid. Additionally, the proposal provided funding to institutions of higher education dealing with the fallout of closure or mitigating the spread of the virus. The Chairman of the House Education and Labor Committee introduced a similar bill. Such items may come up in the next major legislative package.

Institutions of higher education are providing feedback to Congress and the Department about other needs during the pandemic. Last week, a number of standalone bills were introduced related to emergency aid and future public health crises (including veterans' benefits, students with disabilities, and other affected groups), which could be wrapped up into a future package for relief.

Conclusion

The Treasury Secretary has repeatedly said that last week's executive branch and Congressional actions were akin to the second inning of a nine-inning baseball game. The first stimulus package focused on funding for disaster relief, and the second package focused on funding for workers and families directly affected by the virus. We anticipate a third package would be even larger, with a more corporate-centric focus on helping various sectors of the economy recover, while also addressing additional remaining issues for families and individuals directly affected by the virus. It is possible that such a package would be the largest in scope and impact since Congress passed the $700 billion Emergency Economic Stabilization Act in October 2008 to deal with the global financial meltdown.

While we expect individual Representatives and Senators to offer a myriad of bills aimed at various recovery elements, we see the next comprehensive coronavirus package as the most likely place for multiple industries to start securing specific financial assistance from the government for their unprecedented losses. While it is too early to tell what specific provisions may be included, we expect President Trump will continue to push for a massive payroll tax that could cost $800 billion. The payroll tax is supported by the U.S. Chamber of Commerce, but it has tepid support in Congress. Conversely, there will be support for simply issuing direct government checks to all taxpayers, with an eye on immediately buoying those who make less than $100,000 and are therefore at risk of near-term serious financial hardship. Overall, we forecast there will eventually be multiple serious recovery proposals that cost as much or more than the payroll tax. For example, there are preliminary discussions of broader infrastructure investments in the next package, though that would involve spending on items not directly connected to the economic damage of the pandemic.

In the coming weeks, individual companies, associations, and broad sectors of the economy will have to ask Congress and President Trump for unprecedented levels of financial support and regulatory relief. In an unprecedented emergency environment, requests for assistance will likely be more successful if they focus on specific examples of economic damage from this crisis. As the White House and Congress face a crisis of unprecedented scope, they will be reliant on advice that includes a plan to articulate what damage the crisis has done and why a proposed solution will actually repair the damage. We stand ready to (1) keep you informed of relevant developments and (2) help you make specific policy recommendations that will put the American economy back into gear when the crisis recedes.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.