March 14, 2020

Coronavirus Emergency Declaration


KEY TAKEAWAYS

  • On March 13, President Trump declared the coronavirus to be a national emergency.
  • The president made this emergency declaration under the authority of the Stafford Act and the National Emergencies Act.
  • This declaration allows several federal agencies, including the military and FEMA, to offer help to state, local, territory, and tribal agencies dealing with the outbreak of coronavirus. The Department of Health and Human Services remains the lead federal agency in response.

On March 13, President Trump declared the coronavirus a national emergency under the Stafford Act and the National Emergencies Act. The 1988 Stafford Disaster Relief and Emergency Assistance Act authorizes the president to declare a disaster or emergency and to use federal resources to help state, local, territory, and tribal efforts to mitigate the damage caused by the emergency. The 1976 National Emergencies Act authorizes the president to declare a national emergency and invoke specific emergency powers.   

A Stafford Act emergency declaration is usually used for devastating weather events – such as hurricanes, tornadoes, earthquakes, or wildfires – but it also has been used for infectious disease. In 2000, President Clinton declared an emergency and used the Federal Emergency Management Agency to help New York and New Jersey deal with the West Nile virus.

The Stafford Act emergency declaration for coronavirus authorizes two main forms of assistance:

  • Use of the Base Disaster Relief Fund, which has a balance of approximately $600 million.

  • Several federal agencies can directly assist state and local efforts to fight the coronavirus outbreak. These may include the Department of Homeland Security – through FEMA – and the Defense Department – through both National Guard and active duty resources.

In general, FEMA and DOD respond to requests from state, local, territory, and tribal agencies that have exhausted their own resources. These local agencies are intended to stay in the lead during an emergency response, with the federal government’s coronavirus task force likely coordinating the assistance of federal agencies. The state of New York has activated the New York National Guard at its own expense – under state active-duty status – to establish a “containment area” to slow the spread of coronavirus. Maryland also declared a state of emergency and activated its National Guard.

The National Emergencies Act requires the president to specify the existing statutory emergency authority he is invoking. In this instance, the emergency declaration invokes section 1135 of the Social Security Act to allow the secretary of health and human services to exercise the authority under that section to temporarily waive or modify certain requirements of Medicare, Medicaid, and the State Children's Health Insurance Program, as well as the Health Insurance Portability and Accountability Act privacy rule, for the duration of the public health emergency declared in response to the COVID-19 outbreak. 

Yesterday’s emergency declaration does not override, replace, or duplicate the “public health emergency” declared by Secretary of Health and Human Services Alex Azar on January 31.

Options for federal assistance

The goal of the president’s declaration is to provide flexibility for the federal government to give the assistance that any state, locality, territory, or tribe needs and ask for.

Under the Stafford Act, public assistance under an emergency is generally provided on a 75% federal, 25% nonfederal cost-sharing basis. Examples of what FEMA, DOD, and other federal agencies have done in the past and are authorized to do, if requested:

  • Management, control, and reduction of immediate threats to public health and safety:

  1. Emergency operation center costs and state overtime costs

  2. Decontaminating public facilities, including emergency responder vehicles

  3. Decontaminating private facilities, such as infected person’s residences, when deemed necessary by the Centers for Disease Control and Prevention, state, tribal, or territory local public health authorities

  • Emergency medical care:

  1. Sheltering, such as short-term sheltering or longer-term hotels and dormitories for the specific purpose of containment

  2. Non-deferrable medical treatment of infected persons in a temporary medical facility

  3. Testing including x-rays, laboratory and pathology services, and machine diagnostics

  4. Temporary medical facilities when existing facilities are overloaded, or to quarantine

  5. Inoculation for emergency responders

  6. Use of specialized medical equipment

  7. Medical waste disposal

  8. Emergency medical transport

  9. Tracking potentially exposed people

  • Purchase and distribution of food, water, ice, medicine, and other consumable supplies such as personal protective equipment and hazmat suits

  • Security, such as barricades, fencing, and law enforcement

  • Communicating health and safety information to the public

The federal government also may provide aid directly for individual people and families if it is determined to be necessary. This assistance generally requires a 75% federal, 25% nonfederal share under current policies. Housing assistance is provided at a 100% federal share.

If state governors request additional assistance from FEMA beyond what was provided in the emergency declaration, they can request a major disaster declaration. If the president determines major disaster programs are needed in that state upon the request, he can authorize use of the Major Disaster Relief Fund.

Under the National Emergencies Act designation, invoking section 1135 of the Social Security Act, the HHS secretary is authorized to take certain public health actions. For example, the secretary can waive:

  • Requirements for providers to participate in Medicare, which would increase the number of providers able to treat patients

  • Patient preapproval requirements 

  • State licensing requirements for health care professionals for Medicare, Medicaid, and CHIP reimbursement

  • Sanctions under the Emergency Medical Treatment and Active Labor Act for transfers or redirections of patients away from hospital emergency rooms. This allows hospitals to direct patients to alternate facilities set up for a specific purpose, such as facilities specifically designated for coronavirus patients

  • STARK self-referral sanctions for physicians, which would increase patient access to treatments.

The Small Business Administration is providing economic injury disaster loan assistance for businesses affected by coronavirus. This program was authorized and funded in Title II of the recently enacted Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020.

previous emergency DECLARATIONS FOR PUBLIC HEALTH

In 2000, President Clinton declared an emergency, using the Stafford Act, for New York and New Jersey to fight West Nile virus, a mosquito-borne disease. The public assistance program under the emergency declaration included reimbursement of mosquito abatement. President Clinton took this action after he determined that the resources of the CDC were insufficient to fight the virus. The West Nile virus emergency is the only other instance of a Stafford Act declaration regarding an infectious disease. In 2009, President Obama declared a national emergency under the National Emergencies Act, invoking section 1135 of the Social Security Act, for the H1N1 influenza pandemic. Additionally, emergency funding was requested for Ebola in 2015 and Zika in 2016.