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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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On December 27, 2020, the Consolidated Appropriations Act, 2021 was signed into law. This new legislation includes the Coronavirus Response and Relief Supplemental Appropriations Act, 2021 (Act), which provides a breadth of benefits to businesses designed to address the economic fallout from the pandemic. The Act extends the Paycheck Protection Program, enhances other relief previously granted under the Coronavirus Aid, Relief, and Economic Security (CARES) Act and available under other existing programs and includes new forms of relief for businesses. This update summarizes the portions of this massive piece of legislation that most directly affect businesses and includes links to other client updates providing even more in-depth information on specific topics.

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The Act includes an extension of the Paycheck Protection Program (PPP), which has provided small businesses with forgivable loans to help pay operating expenses and keep employees on the payroll throughout the pandemic. The expansion includes more than $284 billion for forgivable PPP loans for a total of $806 billion and extends the program to March 31, 2021. Within that total, reserves are set aside for smaller lenders and borrowers and those in low-income areas to provide these disadvantaged groups better access to the PPP loan program.

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Additionally, particularly hard-hit businesses that already received PPP loans will be eligible for a second round of funds. The Act defines eligibility for the PPP second draw as small businesses that: have no more than 300 employees; used or will use all proceeds of the first PPP loan for permitted purposes; and demonstrate at least a 25% reduction in gross revenues between comparable quarters in 2019 and 2020. The amount of any additional PPP loan that may be obtained is 2 1/2 times average monthly payroll, except that businesses in NAICS Code 72 (Accommodation and Food Services) may obtain an additional PPP loan up to 3 1/2 times average monthly payroll. However, all second-draw PPP loans are capped at $2 million per borrower.

Enhancements to the PPP loan program also include:

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As we learned from the CARES Act, many details regarding application of the PPP loan rules come in the form of regulations and guidance issued by the Small Business Administration (SBA), and the Act requires the SBA to adopt regulations implementing these new provisions within 10 days of the ’Act’s enactment as well as providing other deadlines for guidance on specific provisions. As a whole, these provisions relating to the PPP loan program are designed to give PPP loan borrowers maximum flexibility to obtain the full intended benefit of a forgivable PPP loan.

The Act includes $15 billion in dedicated funding for live venues, museums, independent movie theaters and cultural institutions. The grants are generally available to such businesses and nonprofit organizations that have fewer than 500 employees and meet certain other conditions regarding size and revenue loss. However, receipt of such a grant precludes receipt of any PPP loan.

The Act also includes provisions encouraging lenders to work with troubled borrowers and extends other lending-related relief to borrowers:

For more information, please contact <a href="https://www.thompsonhine.com/professionals/maffett-jennifer" target="_blank" rel="noopener">Jennifer Maffett-Nickelman</a>.

The Act makes certain changes to debtors’ eligibility for CARES Act funding. First, Section 525 of the Bankruptcy Code, which governs protection against discriminatory treatment against debtors, is amended to clarify that individual debtors cannot be denied CARES Act relief on the basis of a past or present bankruptcy filing. This change expires after one year. Second, under Section 364 of the Bankruptcy Code, corporate debtors may potentially be eligible for CARES Act funding with bankruptcy court authorization. This amendment will not become effective, however, unless and until the SBA Administrator submits a written determination to the Office of the U.S. Trustee that corporate debtors are generally eligible for CARES Act funding. Provided such eligibility is determined, the changes to Section 364 contemplate that a corporate debtor may file a motion with the bankruptcy court to obtain CARES Act funding, and the court must hold a hearing within seven days. If the court authorizes the loan, then, to the extent it is not forgiven, it will be treated as a priority claim ahead of administrative expenses under Section 503(b) and 507(b). This amendment expires two years after the Act becomes law, regardless of when or if the SBA determines corporate debtors are eligible, and existing debtors will not be grandfathered in.

For more details, please see our recent publication, “<a href="https://www.thompsonhine.com/publications/new-covid-19-relief-package-to-provide-additional-pandemic-bankruptcy-protections">New COVID-19 Relief Package Provides Additional Pandemic Bankruptcy Protections</a>,” or contact <a href="https://www.thompsonhine.com/professionals/tuggle-curtis" target="_blank" rel="noopener">Curtis Tuggle</a>, <a href="https://www.thompsonhine.com/professionals/alexander-austin" target="_blank" rel="noopener">Austin Alexander</a> or <a href="https://www.thompsonhine.com/professionals/gordon-sean" target="_blank" rel="noopener">Sean Gordon</a>.

Employee Benefits &amp; Executive Compensation

The Act includes significant provisions impacting employee benefit plans and is designed to implement certain policy priorities, allow greater flexibility to employee benefit plan sponsors as a result of the impact of COVID-19 on their plans and their employees, and eliminate surprise medical billing.

Not a moment too soon, the Act provides relief with respect to flexible spending account (FSA) funds that went unused during 2020, giving plan sponsors the flexibility to allow unused funds in health care and dependent care FSAs to roll over and be used throughout 2021. For health care FSA plans that already have a carryover design, the relief permits carryover of the full 2020 balance (i.e., the rollover is not subject to the standard carryover limit). For health care or dependent care FSA plans that already have a grace period design, the relief permits extension of the 2020 grace period through December 31, 2021, giving participants a full additional year to utilize 2020 funds. Similar relief is permitted for the 2021 plan year (allowing unlimited rollover to the 2022 plan year).

Other FSA relief allows plan sponsors to permit prospective mid-year election changes for any reason – even without a life event – during the plan year that ends in 2021, allow participants who terminate employment in 2020 or 2021 to be reimbursed for health care expenses incurred after termination (during the same plan year and associated grace period, if applicable) without electing COBRA, and permit use of 2020 dependent care FSA funds (including funds rolled over from 2020 to 2021) for expenses incurred with respect to a 13-year-old child if the child turned 13 during 2020 or 2021.

Plan sponsors seeking to adopt all or a portion of this relief generally must amend their plans prior to 2022.

Effective for plan years beginning on or after January 1, 2022, group health plans and health insurance issuers (collectively referred to as “health plans”) are required to take certain steps to protect covered persons from surprise medical billing, i.e., billing for costs incurred when an out‑of-network provider is unexpectedly involved in a participant’s care. The Act requires health plans to treat the following services as if they were in-network services: out‑of-network emergency care, certain services provided by out-of-network providers at in-network facilities, and air ambulance services. Any cost-sharing payments made by a participant for these services must count towards the in‑network deductible and out-of-pocket maximum as if they were performed by in-network providers. The Act also prevents out-of-network providers from balance billing the participant for such services.

By July 1, 2021, the Departments of Labor, the Treasury and Health and Human Services (the “Agencies”) must issue rules addressing how health plans must determine the appropriate amount of payment to be made to the non-participating provider. If an out-of-network provider disagrees with the amount of its payment, the Act requires that the provider and the health plan engage in informal discussions followed, if necessary, by binding arbitration.

Additionally, the Act requires the Agencies to audit health plans to ensure compliance with these provisions.

The Act imposes significant reporting and disclosure requirements on health plans to ensure that covered persons are aware of the different cost-sharing requirements for in-network and out-of-network services, to ensure that provider directories are up to date, and to ensure that participants are given an advance estimate of costs they can expect to pay for certain scheduled services. These requirements are effective for plan years beginning on or after January 1, 2022 and are in addition to the disclosure requirements imposed by the cost transparency regulations issued earlier this year.

The Act also requires service providers providing brokerage or consulting services to a health plan to provide disclosures to the responsible plan fiduciary regarding their services and compensation; similar requirements have applied to retirement plan service providers since 2012. These requirements will be effective one year after the enactment of the Act.

Additionally, one year after the enactment of the Act and by June 1 of each year thereafter, health plans will be required to report certain information to the Agencies regarding prescription drug coverage and costs.

Within 45 days of enactment of the Act, health plans will be required to perform and document comparative analyses of the design and application of non-quantitative treatment limitations. Health plans will be required to submit these analyses to the Agencies upon request, and the Agencies will be required to request at least 20 analyses per year.

The CARES Act allows employers to make non-taxable student loan repayments on an employee’s behalf under a qualified educational assistance plan – but only until December 31, 2020. The Act extends this provision for five years, allowing such non-taxable payments to be made until December 31, 2025.

Generally, partial plan terminations are based on a facts-and-circumstances test but can occur when more than 20% of an employer’s workforce is involuntarily terminated during a plan year. Under the Act, a partial plan termination will not occur during any plan year which includes the period of March 13, 2020 through March 31, 2021, if the number of active participants covered by the plan on March&nbsp;31, 2021 is at least 80% of the number of active participants covered by the plan on March 13, 2020.

The Act extends certain provisions that permit distributions and loans from a qualified retirement plan in the event of a federally declared disaster. The Act is clear that COVID-19 is not a disaster for this purpose.

Special In-Service Pension Distributions for Building and Construction Industry

A pension plan may currently provide a distribution to an employee who has attained age 59 1/2 but has not yet separated from employment. The Act provides a limited exception allowing in-service distributions from a multiemployer pension plan at age 55 if certain conditions are met: (i) the employee must have been a participant in the plan on or before April 30, 2013, (ii) the trust must have been in existence before January 1, 1970, and (iii) the plan must have received a determination letter before December 31, 2011 when the plan provided an in-service distribution at age 55. While it’s likely that this provision applies to only one, or a small handful, of plans, it applies to distributions made before, on, or after the effective date of the Act.

For more information, please contact <a href="https://www.thompsonhine.com/professionals/love-julia" target="_blank" rel="noopener">Julia Love</a>, <a href="https://www.thompsonhine.com/professionals/redder-edward" target="_blank" rel="noopener">Ed Redder</a>, <a href="https://www.thompsonhine.com/professionals/ryan-laura" target="_blank" rel="noopener">Laura Ryan</a>, <a href="https://www.thompsonhine.com/professionals/wilcoxon-kim" target="_blank" rel="noopener">Kim Wilcoxon</a>, <a href="https://www.thompsonhine.com/professionals/singleton-leah" target="_blank" rel="noopener">Leah Singleton</a>, <a href="https://www.thompsonhine.com/professionals/mandel-beth" target="_blank" rel="noopener">Beth Mandel</a> or <a href="https://www.thompsonhine.com/professionals/shick-erin" target="_blank" rel="noopener">Erin Shick</a>.

Extension of Contractor Reimbursement for Paid Leave

Division N of the Consolidated Appropriations Act includes a provision on “Contractor Pay” (section 1002), which extends the reimbursement period under CARES Act section 3610 to March 31, 2021. Section 3610 of the CARES Act (“section 3610”) generally authorized agencies to reimburse a contractor, at agency discretion, for the cost of paid leave incurred during the pandemic so that the contractor could maintain its workforce in a ready state.

Under section 3610, reimbursement is for paid leave provided to keep employees or subcontractors in a ready state, including to protect the life and safety of government and contractor personnel. Reimbursement must be at the minimum applicable contract billing rate, not to exceed an average of 40 hours per week. Under the CARES Act, reimbursement did not cover paid leave provided beyond September 30, 2020, but on September 30, 2020, Congress passed a continuing resolution that extended the reimbursement period to December 11, 2020. The new Act further extends the reimbursement period to March 31, 2021.

The Office of Management and Budget (OMB), Department of Defense (DoD) and numerous other agencies have issued extensive guidance to implement section 3610. DoD guidance has included regulations issued as class deviations to the FAR and DFARS and checklists to assist contractors with compliance. Contractors are responsible for supporting any claimed costs, including claimed leave costs for their employees, with appropriate documentation and for identifying credits that may reduce reimbursement under section 3610.

DoD guidance has further clarified that some contractors may receive compensation from other provisions of the CARES Act, or other COVID-19 relief scenarios, including tax credits and/or PPP loan forgiveness, and that contracting officers must avoid duplication of payments. Accordingly, a small business eligible to receive PPP loan forgiveness should not seek reimbursement for the same costs from DoD using section 3610. Contractors should consult the applicable agency guidance for section 3610 reimbursement requirements.

For more information, please contact <a href="https://www.thompsonhine.com/professionals/mason-tom" target="_blank" rel="noopener">Tom Mason</a>, <a href="https://www.thompsonhine.com/professionals/berger-joe" target="_blank" rel="noopener">Joe Berger</a> or <a href="https://www.thompsonhine.com/professionals/purcell-jr-francis" target="_blank" rel="noopener">Chip Purcell</a>.

Public-Private Partnership for Fraud Prevention

The Consolidated Appropriations Act includes a provision that codifies an existing public-private partnership for the detection of waste, fraud and abuse across the health care sector (Division CC, section 124). This section codifies a public-private partnership of health plans, federal and state agencies, law enforcement agencies, health care anti-fraud organizations, and any other entity designated for purposes of detecting and preventing health care waste, fraud and abuse.

Under this provision, the secretary of the Department of Health and Human Services (HHS) must enter into a contract with a trusted third party for purposes of carrying out the duties of the partnership. The partnership must provide technical and operational support to facilitate data sharing between the partners; analyze data to identify fraudulent and aberrant billing patterns; conduct and share data analyses across federal, state and private health plans; identify outlier trends and potential vulnerabilities of partners; refer specific cases of potential unlawful conduct to appropriate governmental entities; provide training, outreach and education to partners; and perform other duties intended to detect and prevent fraud.

The existing mechanism within the Centers for Medicare &amp; Medicaid Services (CMS), the <a href="https://www.cms.gov/hfpp" target="_blank" rel="noopener">Healthcare Fraud Prevention Partnership</a>, has existed since 2012 as a voluntary public-private partnership that helps detect and prevent health care fraud through data and information sharing. Partners include the federal government, state agencies, law enforcement, private health insurance plans, employer organizations and health care anti-fraud associations.

By codifying this partnership in the current legislation, Congress is providing significant additional support to an enforcement mechanism that will continue to focus on health care fraud on an ongoing basis. Elsewhere in the law, Congress also authorized significant funding for CMS program integrity activities, for the HHS Office of Inspector General and for the U.S. Department of Justice. These funding provisions signal that the government’s focus on health care fraud detection and enforcement will increase with the current increases in total spending on government health care programs.

The Act appropriates $3 billion to the Public Health and Social Services Emergency Fund for expenses to reimburse, through grants or other mechanisms, eligible health care providers for health care-related expenses or lost revenues that are attributable to the pandemic. These funds may not be used to reimburse expenses or losses that have been reimbursed from other sources. Recipients of payments must submit reports and maintain documentation as the HHS secretary determines are needed to ensure compliance with conditions imposed for payments.

Eligible health care providers include public entities, Medicare or Medicaid enrolled suppliers and providers, and for-profit and nonprofit entities that the secretary may specify, which provide diagnoses, testing or care for individuals with possible or actual cases of COVID-19. The secretary must review applications and make payments on a rolling basis.

Funds appropriated are available for building or construction of temporary structures, leasing of properties, medical supplies and equipment including personal protective equipment and testing supplies, increased workforce and trainings, emergency operation centers, retrofitting facilities, and surge capacity. Payments may be audited by the HHS Office of Inspector General, and up to $2 million is made available to the OIG for general oversight activities relating to HHS coronavirus response funding.

For more information, please contact <a href="https://www.thompsonhine.com/professionals/haper-cori" target="_blank" rel="noopener">Cori Haper</a>.

The Act temporarily extends existing pandemic unemployment insurance programs created by the CARES Act set to expire at the end of this year. The Pandemic Unemployment Assistance program, which provides aid to the self-employed, temporary workers, independent contractors and gig workers, has been extended and will continue to provide additional weeks of unemployment insurance and an extra benefit of $100 per week for some workers who are both self-employed and have salaried jobs. The Act also extends the Pandemic Emergency Unemployment Compensation program and provides an additional 13 weeks of benefits to those who exhaust their regular state benefits in addition to a supplemental federal unemployment benefit of $300 per week for up to 10 weeks from December 26, 2020 to March 14, 2021. The benefits are not retroactive.

The Act also adds program integrity provisions to require documentation of earnings and employment – versus just self-certification – and compels states to have processes for verifying an applicant’s identity to combat fraud and abuse in the unemployment programs. In addition, the Act includes return-to-work reporting requirements for states to provide a reporting mechanism for employers to identify employees who turn down a job and to notify claimants of the requirement to accept suitable work, unless there is good cause for refusal.

The Act provides a tax credit to support employers who offer paid sick leave to employees. Under the Families First Coronavirus Response Act (FFCRA), enacted in March of this year, many employers were required to provide their employees with two weeks of fully paid leave related to COVID-19, and up to 12 weeks of partially paid family and medical leave. FFCRA leave is no longer required as of December 31, 2020, but if covered employers voluntarily provide these leave benefits through March 31, 2021, they are eligible to take the tax credit for the leave.

The new Act did not extend the requirement for certain employers to provide FFCRA leave, but it did extend refundable payroll tax credits and employee eligibility for such paid sick and family leave, enacted in the FFCRA, from December 31, 2020 to the end of March 2021. It also modifies the tax credits so that they apply as if the corresponding employer mandates were extended through the end of March 2021. This provision is effective as if included in FFCRA.

While lawmakers were split over the inclusion of a federally mandated pandemic liability shield, the Act does not include liability protection from COVID-19-related lawsuits for businesses, universities and health care centers.

For more information, please see “<a href="https://www.thompsonhine.com/publications/covid-19-relief-bill-the-impact-on-employers-and-employees" target="_blank" rel="noopener">COVID-19 Relief Bill – The Impact on Employers and Employees</a>” or contact <a href="https://www.thompsonhine.com/professionals/barnes-nancy" target="_blank" rel="noopener">Nancy Barnes</a>, <a href="https://www.thompsonhine.com/professionals/caldwell-hannah" target="_blank" rel="noopener">Hannah Caldwell</a> or <a href="https://www.thompsonhine.com/professionals/young-m" target="_blank" rel="noopener">Scott Young</a>.

Tax Deductibility of Expenses Paid with PPP Loan Proceeds

The Act overrides the Internal Revenue Service’s previously issued guidance on tax deductibility of expenses paid for with PPP loan proceeds even if a business expects that the PPP loan will be forgiven. The Act confirms that a business whose PPP loan is forgiven is not required to include the amount forgiven in gross income. The Act also provides that tax deductions are permitted for otherwise deductible expenses paid using the proceeds of a PPP loan that is forgiven, and there is no corresponding reduction in the basis of business assets. For a partnership or S corporation that receives a PPP loan, the Act clarifies that any amount of a PPP loan that is forgiven will be treated as tax-exempt income, thereby ensuring that no income is passed through to the partners or shareholders due to the forgiveness of a PPP loan. These provisions apply both to PPP loans issued as part of the CARES Act and to second draw PPP loans.

For more information, please contact <a href="http://www.thompsonhine.com/professionals/callahan-thomas" target="_blank" rel="noopener">Tom Callahan</a> or <a href="https://www.thompsonhine.com/professionals/kim-alexis" target="_blank" rel="noopener">Alexis Kim</a>.

The Act includes $45 billion in transportation funding. According to the congressional summaries, transportation-related funds provide relief to transit agencies, airlines and airline contractors, state transportation agencies, airports, Amtrak and private motorcoach, school bus and ferry companies, which have all been significantly impacted by the novel coronavirus pandemic as travelers are urged to stay home and demand is down. The Act also includes $86.7 billion in funding for the Department of Transportation.

The $45 billion for transportation funding and other important provisions of the Act include:

For more information, please contact <a href="http://www.thompsonhine.com/professionals/booth-karyn" target="_blank" rel="noopener">Karyn Booth</a>, <a href="https://www.thompsonhine.com/professionals/tutrone-jason" target="_blank" rel="noopener">Jason Tutrone</a> or Kerem Bilge.*

*Not admitted in the District of Columbia; practice is supervised by principals of the firm.

For more information, please contact your primary Thompson Hine lawyer or any of the following:

Nancy M. Barnes Labor &amp; Employment 216.566.5578 <a href="mailto:Nancy.Barnes@ThompsonHine.com">Nancy.Barnes@ThompsonHine.com</a>

Karyn A. Booth Transportation 202.263.4108 <a href="mailto:Karyn.Booth@ThompsonHine.com">Karyn.Booth@ThompsonHine.com</a>

Thomas J. Callahan Tax 216.566.5612 <a href="mailto:Tom.Callahan@ThompsonHine.com">Tom.Callahan@ThompsonHine.com</a>

Sean A. Gordon Business Restructuring, Creditors’ Rights &amp; Bankruptcy 404.407.3678 <a href="mailto:Sean.Gordon@ThompsonHine.com">Sean.Gordon@ThompsonHine.com</a>

Cori R. Haper Health Care 937.443.6856 <a href="mailto:Cori.Haper@ThompsonHine.com">Cori.Haper@ThompsonHine.com</a>

Julia Ann Love Employee Benefits &amp; Executive Compensation 216.566.5686 <a href="mailto:Julia.Love@ThompsonHine.com">Julia.Love@ThompsonHine.com</a>

Jennifer L. Maffett-Nickelman Corporate Transactions &amp; Securities 937.443.6804 <a href="mailto:Jennifer.Maffett-Nickelman@ThompsonHine.com">Jennifer.Maffett-Nickelman@ThompsonHine.com</a>

Tom Mason Government Contracts 202.263.4168 <a href="mailto:Thomas.Mason@ThompsonHine.com">Thomas.Mason@ThompsonHine.com</a>

Francis E. (Chip) Purcell, Jr. Government Contracts 202.263.4118 <a href="mailto:Chip.Purcell@ThompsonHine.com">Chip.Purcell@ThompsonHine.com</a>

Edward C. Redder Employee Benefits &amp; Executive Compensation 614.469.3258 <a href="mailto:Edward.Redder@ThompsonHine.com">Edward.Redder@ThompsonHine.com</a>

Laura A. Ryan Employee Benefits &amp; Executive Compensation 513.352.6727 <a href="mailto:Laura.Ryan@ThompsonHine.com">Laura.Ryan@ThompsonHine.com</a>

Curtis L. Tuggle Business Restructuring, Creditors’ Rights &amp; Bankruptcy 216.566.5904 <a href="mailto:Curtis.Tuggle@ThompsonHine.com">Curtis.Tuggle@ThompsonHine.com</a>

Kim Wilcoxon Employee Benefits &amp; Executive Compensation 513.352.6524 <a href="mailto:Kim.Wilcoxon@ThompsonHine.com">Kim.Wilcoxon@ThompsonHine.com</a>

M. Scott Young <span style="color: #000000; font-family: Verdana, Arial, Helvetica, sans-serif; font-size: 11px; font-style: normal; font-variant-ligatures: normal; font-variant-caps: normal; font-weight: 400; letter-spacing: normal; orphans: 2; text-align: start; text-indent: 0px; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px; -webkit-text-stroke-width: 0px; background-color: #ffffff; text-decoration-thickness: initial; text-decoration-style: initial; text-decoration-color: initial; display: inline !important; float: none;">Labor &amp; Employment 513.352.6617 <a href="mailto:Scott.Young@ThompsonHine.com">Scott.Young@ThompsonHine.com</a>

Consolidated Appropriations Act, 2021: Implications for Business

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