The House’s Legislative Response to Administration’s Return to Work Guidelines

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Over the weekend, Congressman Jeremy Raskin (D-MD), appeared on NBC News to introduce H.R. 6525, the Reopen America Act of 2020. Congressman Raskin’s office released an attendant press release stating that the measure is intended as a more substantive “policy alternative” to the wholly voluntary guidelines the Trump administration released on Thursday, which Seyfarth summarized here. The Congressman whipped 52 cosponsors for the legislation in a two-day span, including former Health and Human Services (HHS) Secretary Donna Shalala (D-FL), House Democratic Caucus Chairman Hakeem Jeffries (D-NY), House Energy and Commerce (E&C) Committee Health Subcommittee Chairwoman Anna Eshoo (D-CA), and E&C Committee Member Peter Welch (D-VT).

With no Republican cosponsors, the bill is admittedly more a set of talking points than a serious legislative vehicle with any future in the Senate—even assuming passage in the House.  Nevertheless, that introduction came hard on the heels of the President’s guidelines, and given the breadth of cosponsors, it merits attention as it provides some insight into the thinking on Capitol Hill with regard to the need of the federal government to take a stronger role in both coordinating and providing resources to address the coronavirus crisis and the critical importance of testing in doing so. Unlike the guidelines, this measure does not provide illustrative examples of return to work steps employers should consider as there is a downward curve in coronavirus cases and symptoms, but it does include obligations states should impose on private employers as part of an overall plan.

How the Bill Contemplates Reopening America 

The bill requires state governors to submit to the secretary of HHS for approval a reopen plan with both public and private employer-based obligations.  The measure incentivizes states to submit a viable reopen plan with a promise of federal funding to reimburse the cost of implementing the plan. Once a month, a state may submit, and the federal government shall reimburse, all costs reasonably incurred in implementing the plan.  Prior to receiving any federal assistance, however, states must demonstrate the ability to meet two critical thresholds: (1) hospitals can address demand without resorting to crises standards of care and (2) the infection rate is below one—meaning each person who contracts the disease infects no more than one person, pushing the slope of the curve downward.

In order to demonstrate states can meet this threshold, testing, of course, will be key. To that end, the bill would require the Federal Government to ensure an adequate national supply of testing, protective gear, and critical medical resources and other equipment and supplies to enable states to develop and administer reopening plans that meet both public health and economic recovery goals.  Indeed, during his appearance on NBC News, Congressman Raskin stated that, if the bill passes, the federal government would “spearhead a national testing regime [and] a national contact tracing regime.”

As Seyfarth noted here, a number of governors have announced regional pacts to coordinate reopening of state economies. This bill would permit and encourage those states, and others, to continue to work together on a regional basis to submit a State Partnership Procurement Plan to obtain federal financing to more reliably assure a level of testing and availability of medical service necessary to carry out the reopening plans of such states.  The states which have formed such pacts have reassured through public comments that the reopen strategy would be guided by science, not politics, a theme that guides this measure as well. Indeed, not only would each plan be informed by an expert advisory panel (as noted below), supporters of the bill have made clear through their messaging that the whole of the legislation is guided by science and data.

The A+ Plan: What the Bill Requires Each Plan Entail

In order to receive approval, a reopen plan must specify safeguards to achieve the public health goals specified in the bill.  The specified health goals are the same as the threshold requirement for plan approval: (1) ensure infections at the time of reopening shall not exceed the capacity of local hospitals to safely treat all patients without resorting to crises standards of care and (2) ensure sufficient safeguards to identify and take effective actions to curb local infection outbreaks before they lead to hospitalization.  The Secretary of HHS, in coordination with the Secretary of the Treasury, should look to the following factors in determining plan approval: (1) the plan provides reasonable assurances of achieving the public health goals specified above, (2) the plan includes appropriate documentation as specified by the Secretary, including the substantive contents listed below, and (3) the actions identified in the plan are not clearly excessive for achieving the public health goals described above.

On a more micro level, plans must contain:

1. Testing, including publicly administered testing, employment-based testing requirements, mobile testing programs, school-based testing, or other testing requirements for social activities, and group testing.
2. Requirements for wearing of masks and other protective gear in employment and social activities.
3. Requirements for public or private temperature readings or other simple screenings for coronavirus infections.
4. Demonstrated procedures for identifying infected individuals, tracing and testing their contacts, and quarantining infected individuals.
5. Increases in medical capacities and ability to shift capacities to address local out breaks.

Why this Matters: Testing Remains the Key

The guidelines the Trump administration issued for reopening the economy provide examples of less rigorous economic restrictions businesses can follow through three phases as the number of COVID-19 cases declines. Prior to moving into each phase, states are required to demonstrate a downward trajectory of cases and symptoms the guidelines refer to as “gating” criteria.  Demonstrating such a downward trajectory necessarily requires a dramatic expansion of testing.  As Seyfarth explained in its recent Legal Update regarding the guidelines, however, “it is the very absence of widely available diagnostic tests and relatively limited health sector resources . . . that has vexed the governors in many states.” The bill itself notes that “extensive testing for coronavirus protection will be a critical component of reopening strategies.” Indeed, the bill  explicitly states in its findings that “[l]arge increases in test[s] . . . are essential to the implementation of reopening plans that do not lead to unacceptable increases in transmission rates and maximize the level and rate of economic reopening.”

The bill, if passed, would help create the robust testing capacity needed to demonstrate compliance with the so-called “gating requirements” such that states and regions may permit businesses such as gyms, bars, restaurants and large venues to reopen in phases. Specifically, states that submit a sufficiently detailed plan—which must necessarily entail a plan for testing and tracing—would release the spigot to the federal funds Governor Andrew Cuomo, and others, have insisted are necessary to institute the kind of robust, multi-faceted testing desperately needed.

The Measure Would Appropriate Funds for More Programs  

Apart from the nuts and bolts of the Act, it also creates some oversight bodies to assist the Secretary with plan approvals. Specifically, the bill mandates creation of the Coronavirus Health Equipment Production Board within the Defense Logistics Agency.  The board would consist of the Director of the Defense Logistics Agency, the directors of the CDC and Biomedical Research Development Agency, the administrator of FEMA, the Commissioner of Food and Drugs, and and the Director of the National Institute of Allergy and Infectious Diseases. The board’s primary duty would be to ensure adequate national and regional availability of medical and testing equipment and supplies, and other goods and services for responding to the coronavirus epidemic.  Enmeshed in the bill is somewhat of an end-run around the Presidents refusal to enact the Defense Production Act by delegating to the board the authorities granted the President under titles I and III of the Act if the board deems such conduct necessary to accomplish its stated goals. The bill would appropriate “not more than $75,000,000 in each of fiscal years 2020 and 2021, for administrative costs” the board incurs.

The bill would also require the directors of the CDC and Biomedical Research Development Agency to create “an emergency program to evaluate on an expedited basis both the reliability of different tests and forms of testing and the capacity of those tests to contribute to reopening plans.”  The purpose of this program would be to evaluate the many different forms of COVID-19 tests currently available.

Finally, the bill would create a Coronavirus advisory panel, consisting of three epidemiologists, three economists, three experts in production systems, and three employee health care advocates.

Conclusion

The Act would represent a step toward to implementing the much-needed testing governors across the country have clamored for. Despites its uncertain future, as noted above, the measure is yet another example—whether one looks to the federal guidelines announced last week, the words of the governors, or the statements of congressional leaders—of the critical importance testing and tracing will play in ensuring a smooth return of a semblance of economic normalcy.