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MACPAC > Medicaid’s Response to COVID-19 > Federal emergency authorities

Federal emergency authorities

Published On

March 18, 2021

The federal government has three vehicles for declaring an emergency in an emergency or disaster: the Secretary of the U.S. Department of Health and Human Services (the Secretary) can declare a public health emergency under Section 319 of the Public Health Service Act (PHSA, P.L. 115-96, as amended), or the President can declare a disaster or emergency under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (P.L. 93-288, as amended) or the National Emergencies Act (P.L. 94-412). The declarations provide for different types of responses and can be made concurrently. These statutory authorities are described in detail below.

All states, the District of Columbia, and the territories have made state emergency or public health emergency declarations (ASTHO 2020). In some instances, state-declared emergencies may allow for additional flexibility within the state Medicaid program. Depending on the type of emergency declaration, state actions authorized can include activating state emergency response plans, using certain funding, or deploying personnel, equipment, and stockpiles (ASTHO 2012).

Public Health Service Act

Under Section 319 of the PHSA, the Secretary can declare a public health emergency if it is determined that a disease or disorder presents a public health emergency, or a public health emergency—including significant outbreaks of an infectious disease or a bioterrorist attack—otherwise exists. Such a declaration does not require a formal request from state or local government. Among other things, once a public health emergency is declared, the Secretary can:

  • make grants;
  • modify the practice of telemedicine;
  • enter into contracts;
  • conduct and support investigations into the cause, treatment, or prevention of the disease or disorder;
  • make temporary personnel available to respond to the emergency;
  • grant an extension or waiver requirements of certain Substance Abuse and Mental Health Services Administration grants on a state-by-state basis;
  • access so-called no-year funds appropriated to the Public Health Emergency Fund; and
  • grant extensions or waiving sanctions related to submission of data or reports required by statute.

An emergency declaration under the PHSA is authorized for the duration of the emergency or 90 days (whichever occurs first) and may be extended by the Secretary (MACPAC 2018).

Stafford Act

When a major disaster or emergency affects a state or tribal area, the governor or chief executive may request federal assistance under the Stafford Act.[mpfn]Under the Stafford Act, a major disaster is any natural catastrophe or regardless of cause, any fire, flood, or explosion which causes significant damage. An emergency is defined as any occasion for which federal assistance is needed to supplement state and local efforts.[/mpfn]

This law authorizes the federal government to provide financial and other assistance to state, local, and tribal governments; certain nonprofit organizations; and individuals to support response, recovery, and mitigation efforts following a declaration of an emergency or disaster by the president (ASPR 2019). Under the Stafford Act, the Federal Emergency Management Agency (FEMA) coordinates administration of disaster relief to affected states (MACPAC 2018).

National Emergencies Act

The National Emergencies Act authorizes the President to declare a national emergency without a specific request from a state. Such declarations do not provide any specific emergency authority and instead rely on emergency authorities provided in other statutes. Emergency statutory provisions are not activated automatically; the President must specify which authorities are activated in the specific emergency declaration (ASTHO 2013).

COVID-19 emergency declarations

In response to the COVID-19 pandemic, the federal government made emergency declarations under each of the following emergency authorities:

  • On January 31, 2020, the Secretary declared a public health emergency regarding COVID-19 under Section 319 of the PHSA. This request gives state, tribal, and local health departments greater flexibility to request that the Department of Health and Human Services (HHS) authorize them to temporarily assign personnel to respond to the COVID-19 outbreak if their salaries are normally funded in whole or in part by the PHSA programs (ASPR 2020).
  • On March 13, 2020, the President declared a COVID-related emergency under Section 501(b) of the Stafford Act. Assistance provided by FEMA is meant to supplement efforts by HHS, including the Centers for Medicare & Medicaid Services (CMS) and the Centers for Disease Control and Prevention (White House 2020). This includes emergency protective measures for activities taken in response to the COVID-19 outbreak. FEMA assistance is provided to states with a 75 percent federal match for disaster-related costs such as those related to activation of state emergency operation centers, use of the National Guard, law enforcement, and other measures necessary to protect public health and safety (FEMA 2020).
  • On March 13, 2020, the President declared a national emergency beginning March 1 due to the COVID-19 outbreak under sections 201 and 301 of the National Emergencies Act and Section 1135 of the Social Security Act. The declaration directs the Secretary to exercise authority under Section 1135 of the Act to temporarily waiver or modify certain requirements related to Medicare, Medicaid, and State Children’s Health Insurance Program. The Secretary may also waive authorities related to the Health Insurance Portability and Accountability Act (P.L. 104-191) (EOP 2020).