This past week the United States surpassed the grim milestone of 200,000 COVID-19 deaths and seven million cases of COVID-19.  The spread of the virus has altered the way we work, live, and play around the world and will soon touch on one of the most treasured times of the year, the holiday season.  The U.S. Centers for Disease Control (“CDC”) has released guidance addressing fall and winter holidays, stating that “Rosh Hashanah, Yom Kippur, Halloween, Día de Los Muertos, Navratri, Diwali, and Thanksgiving will likely need to be different this fall to prevent the spread of the virus that causes COVID-19.” These holidays are often associated with gatherings of friends and families, but this year the CDC recommends assessing COVID-19 levels “to determine whether to postpone, cancel, or limit the number of attendees” and that “in-person gatherings pose varying levels or risk.”  To determine the amount of risk, the CDC recommends considering the following:

  • Community levels of COVD-19;
  • The location and duration of the gathering;
  • The number of people attending the gathering;
  • Where attendees are traveling from;
  • The behavior of attendees prior to and during the gathering.

The CDC offers examples of lower risk, moderate risk, and higher risk activities for Halloween, Dia De Los Muertes, and Thanksgiving.  For example, for the upcoming Halloween holiday, the guidance suggests lower risk Halloween activities such as carving pumpkins at home with members of your household or outside with neighbors and friends, Halloween scavenger hunts outside, virtual costume contests; and having a scavenger hunt trick-or-treat search with your household instead of traditional trick or treating. The guidance is a stark reminder of how COVID-19 is impacting society and the forthcoming challenges as we approach the holiday season.

A study published in the Lancet on September 25 found that less than ten percent of Americans possess COVID-19 antibodies.  The study examined 28,000 dialysis patients in the U.S. and also observed higher rates of antibodies in Black and Hispanic patients, as well as those in lower-income or densely populated areas.   The authors also estimated that less than 10% of those with antibodies had been diagnosed with COVID-19, meaning larger rates of infection that confirmed cases in the U.S.  This echoes testimony from CDC Director Robert Redfield, who last week testified that more than ninety percent of Americans remain susceptible to COVID-19 infection.

On September 24, 2020 President Trump signed an Executive Order (the “Order”), entitled Executive Order on An America-First Health Care Plan.   The Order does not contain a concrete health policy proposal for congressional consideration and instead restates the administration’s commitment to “restoring choice and control to the American patient” and reiterates the President’s ambitions for health care policy.  It does not implement any new requirements or protections.  President Trump touts the actions he has taken to lowering the cost of medical care and towards transparency and criticizes the Affordable Care Act, and the prior administration, noting the “failures” of the Accordable Care Act.  The Order emphasizes the position the administration has taken California v. Texas, which the Supreme Court will hear on November 10, stating that “[t]he ACA was flawed from its inception and should be struck down.”  The Order does not offer a prescription to protect individuals with pre-existing conditions, instead stating that “[i]t has been and will continue to be the policy of the United States to give Americans seeking healthcare more choice, lower costs, and better care and to ensure that Americans with pre-existing conditions can obtain the insurance of their choice at affordable rates.”  Noting that Congress has not enacted surprise billing legislation, the Secretary of Health and Human Services is instructed to “work with the Congress to reach a legislative solution by December 31, 2020.” If Congress fails to pass legislation, the Secretary is instructed to take administrative action to prevent surprise billing. At this time, Congress does not appear likely to pass surprise billing legislation in 2020.

Norton Rose Fulbright attorneys will continue to provide relevant updates for healthcare providers on the Health Law Pulse related to COVID-19 pandemic.