COVID-19 Viewpoints

In an interview yesterday, CMS administrator Seema Verma expressed support for permanently expanding access to telehealth services after the COVID-19 public health emergency resolves. Here, we explore the nature and duration of the temporary executive and regulatory orders, emergency legislation, and sub-regulatory guidance, which have resulted greater access to telehealth while leaving a fair amount of uncertainty as to what the future of telehealth looks like.

On Monday New York City entered Phase 1 of re-opening. Phase 1 guidance provides specific guidelines relating to construction, manufacturing, whole trade and select retail (for curbside pickup only), agriculture, forestry and fishing. For purposes of this publication, we have focused on the State of New York’s mandatory summary guidelines for construction related activities. Many real estate developers will fall under the umbrella of “construction businesses” and we are providing an overview of the construction specific requirements established by the guidance issued by the New York State Department of Health.

In late May, guidance for Phase 2 of Governor Cuomo’s New York Forward re-opening plan was issued. New York City is expected to enter into Phase 1 on June 8th, and thereafter Phase 2, provided certain thresholds are satisfied.

On May 26, 2020 Customs and Border Protection (CBP) announced that it is further extending its suspension of operations at all Trusted Traveler enrollment centers until at least July 6, 2020 to protect CBP officers and the general public from exposure to COVID-19.

On May 29, 2020, President Trump issued a proclamation suspending the entry of certain Chinese F-1 and J-1 foreign students and exchange visitors who have ties to Chinese institutions that support the People’s Republic of China military initiatives.

The June issue of Energy & Sustainability Connections covers news about renewable energy development company East Light Partners, energy policy news from Washington, recent M&A activity & more.

On May 29th, the Federal Trade Commission (FTC) submitted a comment to the Centers for Medicare & Medicaid Services (CMS) in support of reducing reimbursement requirements for telehealth services. CMS accepted public comments for its new Interim Final Rule published on April 6, 2020, 85 FR 19230, which changes the Medicare payment regulations to allow for more flexible Medicare service options in response to the COVID-19 pandemic. In addition to supporting CMS’s new Interim Final Rule, FTC’s comment recommends permanent measures and further steps to take. The comment offers a valuable insight into the Commission’s stance on telemedicine in relation to health care competition.

On May 19, 2020, the Occupational Safety and Health Administration ("OSHA") issued new interim guidance on recordkeeping for COVID-19 cases in the workplace.  Effective May 26, 2020, this guidance supersedes the April 10, 2020 guidance and supplements OSHA's March COVID-19 guidance on safeguarding the workplace against virus-related threats. We examine OSHA’s recommendations on both fronts in this post.

We have been blogging about the various actions that numerous government agencies were taking to combat COVID-19 fraud (see here and here). These agencies and their respective law enforcement efforts have yet to slow down and appear to have accelerated as greater coordination begins to take root. As of May 29, 2020, the U.S. Food and Drug Administration (FDA) has issued 64 warning letters to companies making claims about a product alleged to be a COVID cure, treatment, or preventative product, while the U.S. Federal Trade Commission (FTC) had issued many, many more than that. In some cases, these warning letters are joint letters that come from both government agencies, which is never a good sign. The FTC in particular is making announcements on a regular basis about large batches of warning letters being issued, such as this one from May 21 highlighting that 50 more marketers of fraudulent COVID-19 products had received such a missive from the FTC. 

Massachusetts has unveiled its plan to reopen from the shutdown enacted in response to the COVID-19 outbreak. This plan was formalized on May 18th in Governor Baker’s “Order Implementing a Phased Reopening of Workplaces and Imposing Workplace Safety Measures to Address COVID-19” (the “Order”). The reopening plan is divided into four flexible phases, each lasting a minimum of three weeks, although a resurgence of the virus could necessitate a return to an earlier phase of the plan and extend the reopening timeline.

Many Massachusetts businesses now have concrete guidance on the measures they are required to complete before reopening their workplaces, and a tentative timeline on when they might be able to reopen. Businesses must meet the required Mandatory Safety Standards for Workplaces (the “Safety Standards”) in order to reopen. Currently, only the Phase 1 standards have been released, with the release of other phase standards to follow as the plan progresses. In addition, as the plan progresses, the requirements for businesses in earlier phases will likely be updated as the public health emergency develops. Businesses should track updates from Massachusetts authorities going forward, including guidance from local jurisdictions.

Last week, the Centers for Disease Control and Prevention (the “CDC”) issued updated guidance detailing steps employers and office building managers should take prior to reopening. This guidance follows the beginning stages of most states’ business reopening efforts. The guidance focuses on four major topics: Evaluation of the Workspace, Assessment of Risk, Implementation of Workplace Controls, and Education.  In short, the guidance encourages employers to evaluate and address potential COVID-19 related hazards, and provides steps businesses can take to minimize exposure or transmission once their doors are opened. This new guidance echoes and supplements the CDC’s previous interim guidance as well as OSHA guidance, particularly with respect to the implementation of hazard controls.[1]  We summarize significant portions of the CDC’s updated guidance in this post.

New York State has issued industry-specific interim guidance for “Phase 2” businesses, which includes a number of “minimum requirements” certain businesses must meet before reopening their workplaces in light of COVID-19. The new Phase 2 guidance provides specific guidelines relating to office-based jobs (excluding medical offices); real estate services; select in-store retail; commercial building management; retail rental, repair and cleaning services; and vehicle sales, leases and rentals.  Importantly, this new guidance applies to “non-essential” businesses in these industries where regions are permitted to reopen, as well as “essential” businesses throughout the state that were previously permitted to remain open.  As various regions begin progressing through the reopening phases under the New York Forward initiative, businesses should become thoroughly familiar with these new obligations and begin taking steps toward achieving compliance.

Massachusetts issued a moratorium on evictions on April 20, 2020. In this video, Kelly Frey, a member of Mintz’s  Real Estate Litigation practice addresses what recourse landlords have to collect rent under this order.

This week, the Centers for Disease Control and Prevention (the “CDC”) released interim guidelines addressing COVID-19 antibody testing. The CDC expressed concerns about the current accuracy of antibody testing and advised businesses against using the results of antibody testing (also known as serologic testing) to make any decisions about returning workers to the workplace.

FINRA, through its most recent Regulatory Notice 20-16 , shares certain common practices they have seen taken by member firms to enhance supervision in the remote work environment due to the COVID-19 pandemic.

Privacy risks of using big data in the fight against COVID-19 are significant, and have caught the attention of Republicans and Democrats alike. Earlier this month we reported on a bill introduced on May 7 by Republican members of the Senate Commerce, Science and Transportation Committee: the COVID-19 Consumer Data Protection Act of 2020.”  

This alert provides information about USCIS’s reopening of domestic offices for non-emergency appointments on or after June 4 to resume services suspended due to COVID-19.