President Trump Unveils Framework for “Opening Up America Again”

President Trump yesterday provided recommendations to governors for reopening parts of the U.S. economy. The guidance, dubbed “Opening Up America Again,” is a proposed phased approach that aims to be implementable on a statewide or county-by-county basis at governors' discretion.

The guidance includes recommendations divided into three phases and relies on “gating” criteria. In order to satisfy this criteria, a state or region must have (1) a downward trajectory of influenza-like illnesses and COVID-like cases reported within two weeks; (2) either a downward trajectory of cases within this period or a downward trajectory of positive tests as a percent of total tests and (3) hospitals in the state or region must treat all patients without crisis care and have robust testing programs in place for at-risk health care workers.

Under Phase One, which is applicable to states and regions satisfying the gating criteria, existing shelter in place and social distancing measures would remain in place. However, this phase would allow gyms and other large venues to reopen under “strict” physical distancing protocols, and elective surgeries would be able to resume on an outpatient basis.

States and regions would progress to Phase Two once there is no evidence of a rebound and they satisfy the gating criteria a second time. Under this phase, non-essential travel would be able to resume, and schools and organized youth activities may reopen. Large venues would then be able to operate under “moderate” physical distancing protocols. Bars would also be able to operate with diminished standing-room occupancy.

Once states or regions satisfy the gating criteria for a third time, vulnerable individuals—including the elderly and those with serious underlying conditions—would be able to resume public interactions but would be encouraged to practice physical distancing. Low-risk populations would be encouraged to minimize time spent in crowded environments. Employers would be authorized to resume unrestricted staffing of worksites, and visits to senior care facilities and hospitals would also be permitted.

As public officials at all levels of government continue to escalate their responses to the pandemic, the latest actions and developments may be found below. Akin Gump will continue to provide regular policy developments related to COVID-19.

Congress Remains at Impasse on Phase 3.5

  • The Small Business Administration (SBA) announced this week that the Paycheck Protection Program (PPP) is currently unable to accept new applications for the program based on available appropriations funding. The announcement comes after a failed attempt last week by congressional negotiators to reach agreement on adding an additional $250 billion in emergency funds for the program. Democrats are urging their colleagues across the aisle also to include an additional $250 billion for hospitals and state and local governments.
  • House Speaker Nancy Pelosi (D-CA) and Senate Democratic Leader Chuck Schumer (D-NY) have remained firm on the need to couple small business aid with assistance for hospitals and state and local governments in any “Phase 3.5” interim relief package, as outlined in a joint statement on Monday. Democratic priorities also include additional support for those relying on the Supplemental Nutrition Assistance Program (SNAP), and adequate funding for the production and distribution of national rapid testing and personal protective equipment (PPE). Democrats have also called for further changes to be made to the PPP in order to better ensure that all eligible small businesses receive assistance, as well as additional funding for COVID-19 SBA disaster loans and grants.
  • Negotiations on Phase 3.5 are ongoing and will likely to produce a compromise on interim CARES Act relief by early next week.

Senate Democrats Unveil Testing Proposal

  • Senate Democrats have unveiled their proposal on testing, which was spearheaded by Sen. Patty Murray (D-WA). Under the plan, the Trump Administration would be required to develop a plan to create a pipeline to develop tests and testing supplies, administer tests across the country and use testing data to inform the public health response. The plan also advocates for passing emergency funding to enable rapid scaling of testing. A summary of the proposal is available here.

House Appropriations Committee Mark Up Schedule Is Delayed

  • House Majority Leader Steny Hoyer (D-MD) has announced that the House will not reconvene prior to May 4. Appropriations Committee member offices have been informed that the markup schedule announced in February has been postponed. Once the House is back in session, the markup of bills will occur shortly afterwards. As soon as offices are informed of the House schedule, they will announce new dates for the full committee markups.

White House Coronavirus Task Force Briefing Highlights

On Thursday, April 16, the White House Coronavirus Task Force conducted a briefing from the White House Press Briefing Room. Highlights of the discussion included:

  • President Trump unveiled plans to reopen the American economy, stating that the plan is “science-based” and a “gradual process.” Vice President Mike Pence thanked all members of the Coronavirus Task Force for their recommendations and work to develop the framework to reopen the economy.
  • Dr. Deborah Birx, White House COVID-19 Response Coordinator, discussed the proposed framework, stressing the importance for every state to have adequate guidance to reopen their economies.
  • The Administration's framework to reopen America is divided into a three-phase approach with various “gating criteria” for individuals, employers and specific types of employees. For states and regions to progress to the next phase, they must have no evidence of a rebound in cases and satisfy the gating criteria consistently.
  • Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, expressed confidence that the proposed framework would pave the way for the economy and life to return to normal. He also noted that businesses must proceed with caution due to the potential for a second wave of coronavirus cases re-emerging later this year.
  • When asked about the 30-day recommendation to shelter in place that was issued earlier this month to slow the spread, President Trump stated that they have shared the Administration's new guidance to reopen the economy with the nation's governors, noting that states will have the power to manage the reopening of their states. He added that some states will have the ability to proceed with Phase 1 of the Administration's plan to reopen as early as Friday.
  • Dr. Robert Redfield, Director of the Centers for Disease Control and Prevention (CDC), offered remarks during the press briefing, noting that the United States is beginning to transition into a containment stage once again. He mentioned that early diagnosis, isolation and contact tracing would be key factors in the government's efforts to continue monitoring developments regarding the virus.
  • President Trump expressed willingness to work on an infrastructure bill, noting that interest rates are currently low. He particularly expressed concerns about the state of the nation's bridges.
  • President Trump spoke with optimism regarding treatments and vaccines, mentioning that Johnson & Johnson is very far along in the process of developing a vaccine.

Relevant Links

Akin Gump Alerts and Other Resources

Akin Gump COVID-19 Resource Center

COVID-19 U.S. State and Local Response Map

Emergency Powers and Constitutional Limits

Labor and Employment: A Summary of Key Employee Benefits and Executive Compensation-related Provisions of the CARES Act

Labor and Employment: Bay Area Expands COVID-19 Related Paid Sick Leave Ordinances

Corporate Transactions: UPDATE: COVID-19 Stimulus: The Federal Reserve Revises the Terms of its Corporate Bond and Loan Facility – What Issuers Should Know

Tax: Could Future COVID-19 Relief Allow COD Income Deferral?

Investment Management: NYSE Temporarily Waives Certain Shareholder Approval Requirements to Mitigate Liquidity Constraints Caused by COVID-19

Real Estate: California Tenant Considerations During the COVID-19 Crisis

Insurance: California Insurance Commissioner Issues a Bulletin to Require Premium Returns Due to COVID-19

Entertainment and Media: Entertainment Finance and COVID-19


U.S. Food and Drug Administration (FDA):

  • Tweet at 4:00 PM, April 16, 2020 (Link)
    • “FDA's User Fee programs help us fulfill our mission to protect public health while helping to accelerate innovation & bring new treatment options to the public. These programs continue to operate during the COVID19 pandemic. (Press Release)
  • Tweet at 7:43 PM, April 16, 2020 (Link)
    • “To continue to expand COVID19 testing capability, FDA has updated information on its website regarding swabs used to collect patient samples for COVID19 testing to include spun synthetic nasal swabs. (Press Release)

U.S. Department of Health and Human Services (HHS):

  • Tweet at 10:39 AM, April 15, 2020 (Link)
    • “This week, HHS announced five new contracts for ventilator production rated under the Defense Production Act (DPA) to General Electric, Hill-Rom, Medtronic, ResMed, and Vyaire, and two other contracts for ventilator production to Hamilton and Zoll. (Press Release)
  • Tweet at 11:07 AM, April 15, 2020 (Link)
    • “HHS through the Health Resources and Services Administration awards $90M to support 581 Ryan White HIV/AID Program recipients in their efforts to prevent or minimize the impact of COVID19 pandemic on people with HIV: (Press Release)
  • Tweet at 3:24 PM, April 16, 2020 (Link)
    • “NEWS: HHS has announced a new contract for ventilator production rated under the Defense Production Act (DPA), to General Electric, in partnership with Ford, for 50,000 ventilators to be produced by July 13. (Press Release)
  • Tweet at 9:15 AM, April 17, 2020 (Link)
    • “Secretary Azar Statement on New Partnership to Develop National Strategy for COVID-19 Therapies and Vaccines | Read the full statement here.”

The Federal Reserve:

  • Tweet at 9:01 AM, April 16, 2020 (Link)
    • “Federal Reserve announces its Paycheck Protection Program Liquidity Facility is fully operational and available to provide liquidity to eligible financial institutions, which will help support small businesses: (Press Release)

U.S. Department of the Treasury:

  • Tweet at 8:36 PM, April 15, 2020 (Link)
    • “Statement by Secretary Mcnuchin and Administrator Carranza on the Paycheck Protection Program and Economic Injury Disaster Loan Program. (Statement)
  • Tweet at 8:04 AM, April 16, 2020 (Link)
    • “U.S. Treasury Secretary Steven T. Mnuchin's Joint IMFC and Development Committee Statement. (Statement)
  • Tweet at 11:28 AM, April 16, 2020 (Link)
    • “The U.S. is committed to ensuring that humanitarian assistance reaches at risk populations through legitimate and transparent channels as countries across the globe fight COVID-19. See OFAC's NEW Fact Sheet here.”

Centers for Medicare & Medicaid Services (CMS) Administrator Seema Verma:

  • Tweet at 12:14 PM, April 15, 2020 (Link)
    • “Thanks to President Trump's leadership, CMS is announcing that, effective April 14, Medicare will nearly double payment to $100 for certain lab tests that use high-throughput technologies to rapidly diagnose large numbers of COVID19 cases. (Press Release)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.