Special Report: Congressional Look Ahead – The Summer of COVID-19
The federal response to the novel coronavirus (COVID-19) pandemic and social distancing policies implemented to slow the spread of the virus has upended the congressional schedule. After postponing legislative business for nearly a month, the Senate resumed legislative business last week. Majority Leader Mitch McConnell (R-KY) expects to follow the existing Senate calendar for the balance of 2020 — meaning their next scheduled district work period for Memorial Day will go on as scheduled. While Senate leadership will be reassessing the situation regularly, Leader McConnell feels strongly that the Senate needs to be in session for the balance of the pandemic.
Meanwhile, House lawmakers continue to distance themselves from the Capitol citing health and safety concerns raised by the Attending Physician’s office. At this point, until the House is able to pass its remote operations plan (which will be tied to the timing for voting on the next CARES Package) the schedule for the next few months (and the remainder of the year, for that matter) remain in flux. This includes the possibility of coming into session during previously scheduled district work periods (such as the August recess) and convening for five-day work weeks as lawmakers look to return to something resembling “regular order.” Majority Leader Steny Hoyer (D-MD) announced that Members “may” convene for legislative business no earlier than this Friday pending the introduction of their ‘CARES 2.0” package, as well as a rule change that would facilitate remote work. However, with Democratic leadership announcing it would provide 72-hours’ notice before any scheduled vote on the package, the text would need to be released today in order to have members in town for a Friday vote.
This memo forecasts potential Congressional activity in the coming weeks and months. While immediate action will focus on policies pertaining to COVID-19 response efforts, and remote voting and virtual hearing contingency plans that promote social distancing and flexibility among lawmakers, Congress must still work on a variety of “must-pass” items. These include the fiscal year (FY) 2021 appropriations bills and the National Defense Authorization Act (NDAA), as well as others that will require Congressional action before September 30th.
Capitol Hill Update
House lawmakers are continuing to work on their “CARES 2.0” stimulus proposal, as well as a temporary emergency rule change that would allow for remote voting and committee hearings. The Rules Committee is currently scheduled to meet Thursday morning to develop the rule that will govern debate for these measures — a move that suggests we could see text for these proposals as soon as today with a vote scheduled no earlier than Friday. Members will receive a 72-hours’ notice of any changes to the House schedule. Meanwhile, the Senate will convene today to hold final confirmation votes on Brian Montgomery’s nomination to be Deputy Secretary of Housing and Urban Development, as well as Troy Edgar’s nomination to be Chief Financial Officer of the Department of Homeland Security.
COVID-19: What We’re Hearing
- COVID 4.0. As the COVID-19 pandemic ensues, lawmakers are continuing to mull over policy items for another round of economic stimulus relief. TRP has compiled a list and summaries of the major priorities that have been discussed.
- Supply Chain. Speaker Nancy Pelosi (D-CA) stated that the next round of COVID-19 relief next will include Energy & Commerce Health Subcommittee Chair Anna Eshoo’s (D-CA) bill that calls for an expert committee to assess the U.S. drug supply chain and recommend ways to reduce dependence on foreign drug manufacturing. Click here to read TRP’s comprehensive analysis of the federal actions taken to address pharmaceutical supply chain concerns.
- Paid Leave. House Democrats are expected to include robust paid sick leave provisions in their forthcoming relief bill, including provisions that would provide hazard pay paid sick leave eligibility for health care workers and emergency responders.
- PPP. Lawmakers on both sides of the aisle are mulling potential policy options that would bolster and reform the Paycheck Protection Program (PPP). Additional funding to shore up lending, as well as easing loan forgiveness requirements, are two key areas that currently enjoy bipartisan support.
- State and Local Governments. GOP lawmakers have indicated that they support promoting flexibility for state and local governments to use CARES Act funding to replace lost revenue, but are lukewarm on providing new funding beyond the $150 billion fund established in the “Phase III” bill. A bipartisan group of Senators recently introduced a measure that would give states these flexibilities to offset losses.
- House Democrats will soon detail plans to provide additional financial assistance to state and local governments. In addition to a set amount of money that could reach up to $1 trillion, the plan will likely include provisions that seek to boost private activity bonds.
- A bipartisan group of House lawmakers have introduced legislation that would allocate $250 billion in direct funding for local governments of all sizes. The measure would also allow governments to offset lost revenue due to the pandemic.
- Postal Service. House Majority Leader Steny Hoyer (D-MD) indicated that Democrats are coalescing behind Oversight and Reform Chairwoman Carolyn Maloney’s (D-NY) proposal that would boost USPS by $25 billion. However, he recognized that the President’s current attitude toward Amazon could impede progress on that front.
- Liability. Leader McConnell emphasized that he will “insist” Congress limit the liabilities of health care workers, business owners, and employees from lawsuits pertaining to the COVID-19 outbreak, making it contingent in order for the Senate to consider any additional relief legislation. Democrats have been dismissive of this proposal, arguing that it would water down federal consumer protection efforts.
- Payroll Tax. During a virtual town hall meeting over the weekend, President Donald Trump stated that he will not support another COVID-19 relief bill without a provision that provides payroll tax relief.
- Infrastructure. President Trump reiterated his call for robust infrastructure provisions in the Phase IV bill during Sunday’s town hall. In a recent tweet, he specifically highlighted surface transportation and broadband infrastructure as areas he’d like to see addressed.
- Despite support for infrastructure from Speaker Pelosi and President Trump, it remains to be seen whether both parties can strike an agreement on big-ticket legislative items such as infrastructure. Congressional Republicans have remained opposed to tacking on non-COVID related items to future relief packages.
- Merger Ban. Several Democratic lawmakers have offered support of a plan sponsored by Sen. Elizabeth Warren (D-MA) and Alexandria Ocasio-Cortez (D-NY) that would place a ban on company mergers during the outbreak. However, Democratic leadership appears lukewarm on this suggestion as of now, and it’s unlikely to gain traction in the GOP-controlled Senate.
- Surprise Billing. Energy and Commerce Ranking Member Greg Walden (R-OR) expects another push for action on surprise billing in the next round of relief. During the Phase III negotiations, Chairman Frank Pallone (D-NJ) and Senate Health, Education, Labor, and Pensions (HELP) Chairman Lamar Alexander (R-TN) were actively trying to tack their surprise billing legislation onto the package.
- Provider Funding. HHS announced that it has extended the deadline for providers to attest to the receipt of payments and accept the terms and conditions from 30 days to 45 days. TRP’s comprehensive analysis of these distributions can be read here.
- To date, HHS is providing a $50 billion general allocation for Medicare hospitals and providers, $10 billion for hospitals in highly impacted areas, $10 billion for rural providers, and $400 million for the Indian Health Service. It also establishes a program to fund COVID-19 care for the uninsured.
- HHS has published a list of frequently asked questions pertaining to the $50 billion general allocation of the COVID-19 provider relief fund. In addition, providers receiving funds must agree to a set of terms and conditions, including reporting and documentation requirements, charging only in-network rates for COVID-19 care, and certifying that the funds will only be used to prevent, prepare for, and respond to the outbreak.
- HRSA launched a separate portal allowing providers who have conducted COVID-19 testing or provided treatment for uninsured COVID-19 individuals on or after February 4, 2020 to request reimbursement.
- HHS also cited providers who will receive further, separate funding, including skilled nursing facilities, dentists, and providers that solely take Medicaid.
- Select Subcommittee on the Coronavirus Crisis. The newly-formed Select Subcommittee on the Coronavirus Crisis will hold its first briefing on Wednesday, May 13, hearing from a panel of experts on their proposals to reopen the economy and the conditions under which it may be done safely. The briefing will be livestreamed here.
COVID-19: What’s Happened
- FDA. The Food and Drug Administration (FDA) published new guidance documents related to drugs being developed for COVID-19. The first guidance document provides general recommendations to sponsors to help prepare them for pre-investigational new drug application (pre-IND) meeting requests for COVID-19 related drugs. The second guidance document is intended to assist sponsors in the clinical development of drugs for treating or preventing COVID-19.
- FDA issued an emergency use authorization for the first COVID-19 antigen test.
- FDA published guidance on reporting requirements for medical device shortages.
- FDA issued an emergency use authorization for the antiviral Remdesivir.
- FDA issued guidance outlining an exemption and exclusion from certain requirements of the Drug Supply Chain Security Act during the public health emergency.
- FDA issued guidance that will temporarily allow hospitals to compound certain sedatives used for COVID-19 patients during the public health emergency. Additional details on this policy from the FDA can be read here.
- SBA. The Small Business Administration (SBA) provided an update on its PPP loan data, as well as an updated state-by-state breakdown.
- SBA and Treasury Department updated their list of frequently asked questions on the PPP.
- SBA announced yesterday that agricultural businesses are now eligible for SBA’s Economic Injury Disaster Loan (EIDL) and EIDL Advance programs.
- SBA issued guidance on how to calculate PPP loans by business type.
- SBA is temporarily restricting incoming applications for PPP loans to only those submitted by the country’s smallest lenders.
- SBA published a list of all lenders participating in the PPP.
- SBA issued an interim final rule clarifying the process of applying for PPP loans for individuals who report self-employed income on a 1040 Schedule C
- SBA issued an interim final rule outlining additional guidance for the PPP. TRP’s comprehensive analysis of the small business provisions contained in COVID-19 response bills can be read here. The loan application form can be accessed here.
- Legislative Response. TRP has published several in-depth policy memos that analyze actions that Congress and the federal government have taken to address the COVID-19 outbreak. Click here for the full list of memos.
- Since the beginning of the COVID-19 outbreak, Congress and the Trump administration have issued a number of policies and waivers designed to lower restrictions on and encourage telehealth services. Click here to read TRP’s memo on these telehealth policies.
- President Donald Trump signed the $483.4 billion “COVID-19 Phase 3.5” bill into law. TRP’s comprehensive analysis of the Phase 3.5 legislation can be read here.
- TRP has published a memo explores the “health extenders” that the CARES Act reauthorized through Nov. 2020, what’s on the table for these programs in the fall, and the questions that will shape the conversation. Click here to read the memo.
- CMS. CMS published a new tranche of frequently asked questions for state Medicaid and CHIP programs regarding COVID-19 response efforts. These FAQs cover a variety of topics, including: (1) emergency preparedness and response; (2) eligibility and enrollment flexibilities; (3) benefit flexibilities; (4) cost-sharing and financing flexibilities; (5) managed care flexibilities; and (6) information technology and data reporting.
- CMS issued an interim final rule with comment period and blanket waivers under Section 1135 of the Social Security Act. These new flexibilities provide for Medicare coverage of serology tests, new coverage for services provided by pharmacists, and a waiver of the limitation on the types of practitioner that may furnish Medicare telehealth services.
- CMS also gave hospitals and other inpatient facilities new flexibilities that are intended to increase acute care hospitals’ capacity during the pandemic, as well as permitting off-campus hospital outpatient departments to apply to temporarily receive reimbursement under Medicare’s hospital outpatient prospective payment system, rather than under the physician fee schedule. TRP’s memo on the new flexibilities is available here.
- CMS announced a new independent commission that will assess safety and quality in nursing homes.
- CMS has updated its information related to COVID-19 guidance document for Medicare Advantage, Part D, and Medicare-Medicaid plans.
- CMS has issued additional blanket waivers to promote flexibility for Long-Term Care Hospitals (LTCH), Rural Health Clinics (RHC), Federally Qualified Health Centers (FQHC), and Intermediate Care Facilities.
- CMS issued recommendations that outline how certain health care systems can resume non-essential surgeries and medical procedures in areas with low incidence of COVID-19.
- CMS has proposed to permanently codify a change to its inpatient rehabilitation facility (IRF) policy that dispenses with the requirement that IRFs provide and document a post-admission physician evaluation within 24 hours of admission.
- A full list of the 1135 waiver approval letters can be accessed here.
- Treasury. The Treasury Department has released a list of frequently asked questions pertaining to the Employee Retention Credit.
- Treasury Secretary Steven Mnuchin issued guidance and frequently asked questions that provide examples of eligible and ineligible expenditures of the state, local, and tribal Coronavirus Relief Fund.
- The Fed. The Federal Reserve and other bank regulatory agencies published an interim final rule that modifies the Liquidity Coverage Ratio to support banking organizations’ participation in the Money Market Mutual Fund Liquidity Facility and the PPP Liquidity Facility.
- The Federal Reserve expanded access to its PPP Liquidity Facility for additional lenders, and also broadened the criteria for collateral that can be pledged.
- The Federal Reserve will expand the scope and eligibility for the Main Street Lending Program.
- The Federal Reserve expanded the scope and duration of its Municipal Liquidity Facility to offer up to $500 billion in lending to states and municipalities during the pandemic.
- The Federal Reserve announced a series of emergency actions that would provide more than $2 trillion in COVID-19 loans to businesses, state, and local governments.
- IRS. The Internal Revenue Service (IRS) published a list of frequently asked questions on COVID-related relief for retirement plans and IRAs.
- FEMA. The Federal Emergency Management Agency (FEMA) published a fact sheet on how the agency will coordinate and distribute two shipments of PPE to 15,000 nursing homes across the country.
- DOT. The Department of Transportation (DOT) announced more than $1 billion in grants to 439 airports across all 50 states.
- DOT issued a final order on service obligations for air carriers receiving financial relief through the CARES Act.
- DOT and the Federal Transit Administration (FTA) announced a total of $25 billion in federal funding allocations to help the public transit systems respond to the COVID-29 outbreak.
- Testing. The Trump administration released a blueprint that seeks to bolster state testing plans and rapid response programs.
- SAMHSA. The Substance Abuse and Mental Health Services Administration (SAMHSA) awarded grant funding to increase access and improve the quality of community mental and substance use disorder (SUD) treatment services through the expansion of Certified Community Behavioral Health Clinics (CCBHC).
- FCC. The Federal Communications Commission (FCC) and the Department of Education announced efforts to promote the use of $16 billion in funding for the CARES Act’s Education Stabilization Fund for remote learning.
- In a move aimed at expanding access to Wi-Fi throughout the country, the FCC voted to adopt a report and order that would make 1,200 megahertz of spectrum in the 6 GHz band available for unlicensed use.
- NIH. The National Institutes of Health issued its first guidance on COVID-19 treatment options that are currently under review.
- NIH and the Foundation for the NIH (FNIH) announced that they will launch a new public-private partnership with more than a dozen biopharmaceutical companies aimed at speeding COVID-19 vaccine and treatment options.