Public Health Emergency Declaration, National Emergency Declaration, and the Prospects for Extension

By: | July 15, 2020

Secretary Azar declared the COVID-19 pandemic a nationwide public health emergency (PHE) on Jan. 31, 2020, utilizing his authority under Sec. 319 of the Public Health Service Act (PHS law; PHE FAQs). That law says that a PHE declaration lasts until the Secretary declares that it no longer exists or upon the expiration of the 90-day period beginning on the date of the declaration, whichever occurs first.

Additionally, under Sec. 319, the Secretary may extend the PHE declaration for subsequent 90-day periods for as long as the PHE continues to exist, and may terminate the declaration whenever he determines that the PHE has ceased to exist. As you noted on our call, the PHE was most recently renewed on April 26, 2020 and is therefore scheduled to end July 25, 2020, unless renewed again.

Generally speaking, the PHE declaration enables the agency to respond to the emergency by granting greater flexibility to states, tribes, and local health departments to temporarily reassign personnel to respond if their salaries normally are funded in whole or in part by Public Health Service Act programs. Additionally, HHS can issue grants, contracting, and investigate the cause, treatment, or prevention of the disease or disorder underlying the emergency, and use funds from the Public Health Emergency Fund when funds are appropriated for it.

That said, there is some nuance to consider, given that declarations under other laws are required for the HHS Secretary to exercise some of the authorities we’ve seen at play during COVID-19. In particular, a PHE determination is separate and distinct from a presidential declaration of emergency under the National Emergencies Act or a Stafford Act declaration of an emergency or disaster.

President Trump did not declare a National Emergency until March 13, 2020. Both a National Emergency and PHE declaration must be in effect to trigger the use of the HHS Secretary’s waiver authority under Sec. 1135 of the Social Security Act, which allows him to temporarily waive or modify certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements to ensure that sufficient health care items and services are available to meet the needs of individuals enrolled. The necessity for both declarations to be in place explains why we did not see CMS take some of its more substantial actions until mid-March (e.g. its IFCs here and here, and individual state waiver approvals here).

Waivers under Section 1135 of the Social Security Act typically end no later than the termination of the emergency period, or 60 days from the date the waiver or modification is first published. The Secretary can extend a waiver by notice for additional periods of up to 60 days, up to the end of the emergency period (which again, is dependent on both the Secretary and President’s declarations). See section 1135(e), paragraphs 1 and 2.

The presidential National Health Emergency is ongoing. Though it can be terminated by the President sooner, it will not necessitate a notice of extension until its one-year anniversary (i.e., March 2021).

Separately, HHS this week sent a clear signal (via spokesperson Michael Caputo’s tweet) that it does intend to renew the COVID PHE before it lapses in late July. So these authorities expiring does not appear to be an imminent threat; however, we hope this background information is helpful for future thinking and advocacy on the topic.

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Taylor Cowey

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