Q: Did the Governor suspend the ABC licensing statute so licenses are not expiring during the COVID-19 emergency?
A: Yes and no – it depends on the type of license. Every license holder is highly encouraged to read Executive Order 23-20 (click here to read). That Executive Order suspended the deadline “to renew licenses and permits from the West Virginia Alcohol Beverage Control Administration” for many types of licenses, such as for those crafting alcoholic beverages and for Class A retail dealers – taverns. However, this suspension did NOT include numerous other license renewals, such as those for Class B retail dealers – beer retailers and wine retailers, and did NOT apply to the 10-year rights to sell liquor at retail, commonly known as the “Rebid 2020.” Importantly, Executive Order 23-20 clarifies when a license holder must file a renewal application if the State of Emergency ends before June 30, 2020, AND makes clear that a license holder can renew anytime before that date regardless. Any license holder with an expiration date that has recently passed or may pass soon should read the actual Executive Order for full details.
Q: Can local health departments provide 911 call centers with full information regarding individuals that have tested positive for COVID-19? Is HIPAA a concern?
A: HIPAA is always a concern, but the U.S. Department of Health and Human Services (“HHS”) has provided specific guidance discussing existing exceptions that allow covered entities to disclose protected health information (or PHI) regarding COVID-19 to 911 centers and first responders. All interested parties are encouraged to read the short guidance document, titled “COVID-19 and HIPAA: Disclosures to law enforcement, paramedics, other first responders and public health authorities” (click here to read). It describes when and how the disclosure of PHI regarding positive COVID-19 tests can be disclosed under HIPAA’s existing exceptions.
Q: Has there been any funding assistance for first responders, especially volunteer fire departments?
A: Unfortunately, the limitations on the CARES Act do not allow those funds to be used for budget shortfalls. Those dollars can only be used for COVID-19 costs that go beyond pre-pandemic budgeted amounts, such as excess overtime or pandemic-specific equipment purchases. These same restrictions are attached to the $100,000 grants to each county from the State. However, the State is working to get these restrictions loosened up and to have the critical needs of first responders addressed in the next round of federal funding to the states.
Q: For medical practices, hospitals, and other businesses involved in providing health care, there is a lot of concern about HIPAA and the pandemic response directives. What do those businesses and their employees need to know to be sure they do not violate HIPAA?
A: The U.S. Department of Health and Human Services (“HHS”) has provided pandemic-specific guidance to answer many of these questions. Anyone with concerns is strongly encouraged to visit HHS’ “HIPAA for Professionals” webpage “HIPAA and COVID-19”. There, you will find informative short reads. These include bulletins, such as the February and March 2020 bulletins on HIPAA and COVID-19. (Links: Feb. bulletin, March bulletin.) The page also includes HIPAA announcements related to COVID-19 from HHS’ Office of Civil Rights, which enforces HIPAA, as well as notices of enforcement discretion.
Q: Are there more details available about the plan to re-open?
A: Yes – the Governor’s Office has a dedicated webpage for the plan and is releasing additional guidance information as things move forward. That webpage discusses the plan generally and presents the slides laying out the plan and several additional clarifications. Importantly, there is additional guidance specific to the sectors of the economy reopening in week 2. It seems certain that the Governor’s Office will continue to provide this type of details and clarifications going forward, and our office will continue to stay abreast of these updates.
Q: Will people that have not filed tax returns for 2018 or 2019 receive stimulus checks?
A: In many cases, yes. The CARES Act provides for Economic Impact Payments to American households whose income was less than $99,000 (or $198,000 for joint filers). Many people will receive these payments automatically, including individuals that filed tax returns for 2018 or 2019, recipients of Veterans Affairs (VA) benefits, individuals that receive Railroad Retirement Board benefits, and people receiving Social Security retirement, Social Security disability insurance (SSDI), survivor benefits, or Supplemental Security Income (SSI). Beyond that, people that have not filed tax returns for 2018 or 2019 may have to provide information to the IRS to ensure they receive their Economic Impact Payments. Anyone with questions should go to the IRS webpage that provides information and an online tool to help people with any uncertainty.
Q: Is there any special help or support for people that are self-employed, independent contractors, or others that that are now out of work but do not normally qualify for unemployment?
A: Yes – it is called Pandemic Unemployment Assistance (PUA). This additional assistance is an option for workers that otherwise would not be eligible for unemployment compensation. This includes self-employed workers, independent contractors, workers with insufficient work histories, gig workers, and ride-sharing drivers, among others. The PUA application window did not open until 10:00 p.m. Friday, April 24, 2020. Consequently, workers eligible for PUA that applied for unemployment compensation prior to that time may have been denied because PUA was not yet available. Eligible persons interested in learning more or applying should go to WorkForceWV’s website.
Q: Are there any scams that have come up during COVID-19?
A: Yes – there is information at this link on several types of scams that have been observed during this time.
FREQUENTLY ASKED QUESTIONS REGARDING MISSED OR DEFERRED MORTGAGE ESCROW PAYMENTS:
The Commissioner of the West Virginia Division of Financial Institutions (hereinafter “Commissioner” or “DFI”) and the West Virginia Attorney General (WVAG) are issuing this interagency statement to provide information to financial institutions that are working with borrowers affected by the unprecedented circumstances resulting from COVID-19. In issuing this guidance, the Commissioner is acting under authority delegated to her in West Virginia Code § 31A-2-4 and the West Virginia Attorney General is acting under the authority delegated to him in West Virginia Code § 46A-7-102(1)(b) to counsel persons on their duties under the West Virginia Consumer Credit and Protection Act. The DFI and the WVAG will continue to communicate with consumers and financial institutions, as needed.
Q: Are the notice requirements contained in West Virginia Code § 46A-2-105 applicable to the structuring of separate balloon payments to reimburse financial institutions for missed escrow payments because of the effects of Covid-19? [Please note that any reimbursement for missed escrow payments is also governed by federal law, including the Real Estate Settlement Procedures Act: Title 12, Chapter 27 of the United States Code, 12 U.S.C. §§ 2601–2617, and accompanying regulations. Your attention is drawn to 12 C.F.R. § 1024.17(f)(4) which requires that reimbursement is made in at least two payments.]
A: No. Extraordinary circumstances exist because loss of income due to Covid-19 was not contemplated when the terms of the loan were established. Rather, these payments represent the exercise of flexibility regarding a loan which allows borrowers to retain their homes while providing a temporary deferral of escrow payments which benefits the borrower and the financial institution.
Q: Is a financial institution required to send a notice of a loan modification regarding escrow payments to a borrower?
A: If the loan contract addresses how it can be modified because of deferred or skipped escrow payments, then the loan contract controls unless changes are needed.
Notice must be provided regarding any change to ensure fairness and avoid confusion or misunderstanding.
Additionally, if a modification is being made to a consumer’s loan because of missed escrow payments, the financial circumstances of the borrower should be taken into consideration. The offering of reasonable terms is mutually advantageous and warranted because of the extraordinary circumstances beyond the consumer’s control. Neither consumers, financial institutions, nor the State would benefit from collection and foreclosure proceedings. Financial institutions should also ensure that federal law regarding escrow payments is followed.
Q: Should notice requirements under federal and state consumer protection laws be taken into consideration?
A: Yes. Any disclosures to a consumer must be consistent with federal and state consumer protection laws. This will also help avoid any misunderstanding relative to the escrow payments to be collected. According to its published guidance, the FDIC Regional Office will assist financial institutions by discussing key considerations on payment accommodations, notice and disclosure. Likewise, both the West Virginia Division of Financial Institutions and the West Virginia Attorney General’s Office will be available to provide guidance.
Q: What should financial institutions do to ensure that the collection of deferred or skipped escrow payments complies with the West Virginia Consumer Credit and Protection Act?
A: Financial institutions should offer reasonable repayment terms which are agreed to by the borrower with fair and clear notice that complies with Chapter 46A of the West Virginia Code and ensure that no unfair or deceptive acts or practices develop during the process of modification or collection.