Senate Releases Their Version of HEROES Act This Morning

In response to the HEROES Act released last month by the House, the Senate today published its First draft proposal for the next CARES Act with hope of getting a bill passed in Congress over the next week. Surprisingly the Senate version does not include the President’s Payroll Tax Holiday he has demanded but instead has another round of stimulus checks which has bipartisan support. Their bill is clearly trying to limit tax provisions to things that will help get employees back to work safely.

The Highlight of what they are calling the CARES 2 Senate Draft Agreement Outline is as follows:

Appropriations $302.8 billion topline for the Appropriations Committee; $235 billion of that is to the Labor HHS subcommittee.

$20 billion – direct payments to Farmers

$21.3 billion – Defense total ($11 billion of which is for 3610 payments to contractors

Homeland - $200 million for TSA; nearly $1 billion for FEMA grants; $1.6 billion to CBP to cover fee shortfalls

$5 billion for vaccine distribution overseas

$13 billion for THUD - $10 billion of which is to the Airport Improvement Program (with a revised formula from CARES)

Labor HHS - $235 billion total $25 billion for testing $26 billion for vaccine research, distribution, and use $1.3 billion for workplace training on social distancing $15.5 billion – NIH labs/research $25 billion for the hospital/provider fund (bringing the total to $200 billion) $4.5 billion to SAMSA for mental health, suicide prevention, and overdose response programs $7.6 billion for Community Health Centers

$15 billion for child care $105 billion for Education – including $5 billion to the Governor’s funds (which is flexible for K-12 or higher ed); $29 billion to higher ed; $70 billion for K-12. Of the $70 billion for K-12, $10 billion goes to private schools. $30 billion is distributed to states within 15 days and must be sent by states to school districts within 15 days after that. The remaining $30 billion is available only to schools that physically reopen and is contingent upon a district reopening plan. Stimulus Payments These will be included, but the amount of the payment and eligibility criteria are TBA.

 Unemployment There will be some type of extension of the enhanced benefit, but likely not $600 a week. There will be a transition period during which there will be a flat amount of extra UI per week. After that, there will be a new policy that better aligns with an individual’s lost income (possibly by multiplying a person’s state benefit) but will cap out at 100 percent of income.

Paycheck Protection Program There will be streamlined loan forgiveness for small loans under $150k. Intermediate forgiveness process for loans under $1 million. Second round of PPP loans for businesses under 300 workers or within the SBA size threshold for their industry that can demonstrate 50 percent lost revenue compared with a reference period. These loans will calculated similarly to the last round, but will have a smaller cap. Loan forgiveness will be expanded to include certain supplier costs, operating expenses, and damage caused by rioting. There will be a more generous PPP calculation for farmers and ranchers based on their 2019 gross income. There is also a new working capital loan offered for businesses under 300 workers that is an alternative to a second round of PPP (Can’t double dip).

Health Care/Finance Committee The Medicare Part B premium will not increase in 2021 Providers will not have to begin repaying Medicare Advances taken under the CARES Act until Jan. 1 and the interest free repayment period will be extended for an additional 4 months. Telemedicine reimbursement policies are extended through the end of 2021. Unused Flexible Spending Account balances in 2020 may carry over to 2021 without penalty. Finance Tax Provisions Enhanced employee retention tax credit. Tax deductions for employer purchases of testing, PPE, and certain other supplies. Increasing the business meal deduction from 50 percent to 100 percent

 Liability Reform Exclusive federal cause of action that applies to litigation against any business, non-profit, school, medical provider, or medical professions arising from COVID. Cases can be brought in state or federal court, but this cause of action is the only standard of liability that applies either way. Defendants have the right to remove any case filed in state court to the federal district court in that area. To prevail, plaintiffs must show that the defendant was grossly negligence or engaged in willful misconduct and violated relevant state/local public health guidelines in place at the time the incident occurred. Simple negligence is not enough. Additionally, there is a cap on damage awards. State/Local Government Assistance

 No additional money for state/local governments (certainly expect to get some added in negotiations with the Dems) State/local governments can use CARES Act money to make up lost revenues The date for using the money is extended from Dec. 30, 2020 to 90 days after the end of the fiscal year. 15 percent of state CARES Act funds must be given to local governments (there is still 45 percent suggested in the Treasury guidance, but the 15 percent will be legally enforceable) No funds can be used for pensions or retirement benefits No funds can be used to replenish a state or local rainy day fund States must maintain their own budgeted spending levels (can’t use the federal dollars to replace state spending) States may not impose any restrictions on the use of CARES Act money by their local governments other than those set in the CARES Act and associated Treasury Dept guidance. The TRUST Act, which creates bipartisan committees for examining the health of the Social Security, Medicare, and Highway Trust Funds is included.