Order Code RL33579
The Public Health and Medical Response
to Disasters: Federal Authority and Funding
Updated January 23, 2007
Sarah A. Lister
Specialist in Public Health and Epidemiology
Domestic Social Policy Division

---

The Public Health and Medical Response to Disasters:
Federal Authority and Funding
Summary
When catastrophes overwhelm state and local response capabilities, the
President (acting through the Secretary of Homeland Security) can provide assistance
to stricken communities, individuals, governments, and not-for-profit groups to assist
in response and recovery. Aid is provided under the authority of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act) upon a
presidential declaration. The Secretary of Health and Human Services (HHS) also
has both standing and emergency authorities in the Public Health Service (PHS) Act
by which he can provide assistance in response to public health and medical
emergencies. He has limited means, however, to finance activities that are ineligible,
for whatever reason, for Stafford Act assistance.
The flawed response to Hurricane Katrina, and preparedness efforts for an
influenza (“flu”) pandemic, have each raised concerns about existing federal response
mechanisms for incidents in which there are overwhelming public health and medical
needs. In addition, some concerns have been expressed about federal leadership and
delegations of responsibility for the public health and medical response to incidents,
as carried out according to the National Response Plan (NRP).
Neither the Stafford Act nor the PHS Act provides a dedicated mechanism to
reimburse victims or their providers for the uninsured costs of individual health care
that may be needed as a consequence of a disaster. Furthermore, there is not
agreement that this should be a federal responsibility. However, following Hurricane
Katrina, Congress provided $2.1 billion for short-term assistance to host states,
through the Medicaid program, to cover the uninsured healthcare needs of eligible
Katrina evacuees. Some in Congress have proposed establishing a mechanism to
cover certain uninsured healthcare costs of responders and others exposed at the
World Trade Center site in New York City following the 2001 terrorist attack, some
of whom are experiencing related health problems five years after exposure.
There are concerns about how a public health and medical response would be
managed during a flu pandemic. There is precedent, under the Stafford Act, for the
President to declare an infectious disease threat an emergency (which provides a
lower level of assistance), but no similar precedent for a major disaster declaration
(which provides a higher level of assistance). In any case, many of the needs likely
to result from a flu pandemic could not be met with the types of assistance provided
pursuant to the Stafford Act, even if a major disaster declaration applied.
This report examines (1) the authorities and coordinating mechanisms of the
President and the Secretary of HHS in providing routine assistance, and assistance
pursuant to emergency or major disaster declarations and/or public health emergency
determinations; (2) mechanisms to assure a coordinated federal response to public
health and medical emergencies, and overlaps or gaps in agency responsibilities; and
(3) existing mechanisms and potential gaps in financing the costs of a response to
public health and medical emergencies. A listing of federal public health emergency
authorities is provided in the Appendix.

---

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Federal Authority and Plans for Disaster Response . . . . . . . . . . . . . . . . . . . . . . . . 2
Federal Statutory Authorities for Disaster Response . . . . . . . . . . . . . . . . . . . 2
Stafford Act: Major Disaster Declaration . . . . . . . . . . . . . . . . . . . . . . . 2
Stafford Act: Emergency Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Public Health Emergency Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Intersection of Stafford Act and
Public Health Emergency Authority . . . . . . . . . . . . . . . . . . . . . . . 6
Federal Coordinating Mechanisms for Disaster Response . . . . . . . . . . . . . . 6
National Response Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
National Response to an Influenza Pandemic . . . . . . . . . . . . . . . . . . . . 7
Would the Stafford Act Apply in a Flu Pandemic? . . . . . . . . . . . . . . . . . . . . 8
NRP Emergency Support Function 8: Roles and Challenges . . . . . . . . . . . . . . . . 9
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ESF-8 Leadership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Unclear Federal Leadership for Certain Response Functions . . . . . . . . . . . 12
Federal Funding to Support an ESF-8 Response . . . . . . . . . . . . . . . . . . . . . . . . . 14
Funding Sources and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The Disaster Relief Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The Public Health Emergency Fund . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The Public Health and Social Services Emergency Fund . . . . . . . . . . 16
Funding the ESF-8 Response to Hurricane Katrina . . . . . . . . . . . . . . . . . . . 17
Federal Assistance for Disaster-Related Healthcare Costs . . . . . . . . . . . . . 18
Existing Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Financing Healthcare Needs Following Hurricane Katrina . . . . . . . . . 20
Healthcare Needs of 9/11 Responders . . . . . . . . . . . . . . . . . . . . . . . . . 22
ESF-8 Funding Needs During a Flu Pandemic . . . . . . . . . . . . . . . . . . 23
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Appendix: Federal Public Health Emergency Authorities . . . . . . . . . . . . . . . . . . 25
Broad Authority in Section 319 of the Public Health Service Act . . . . . . . 25
Other Public Health Emergency Authorities of the HHS Secretary . . . . . . 28
Additional Public Health Emergency Authorities . . . . . . . . . . . . . . . . . . . . 32
Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

---

The Public Health and Medical Response
to Disasters: Federal Authority and Funding
Introduction
In response to catastrophes, the President can provide certain additional assets
and personnel to aid stricken communities, and can provide funding to individuals
and to government and not-for-profit entities to assist them in response and
recovery.1 This aid is provided under the authority of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act (the Stafford Act), upon a presidential
declaration of an emergency (providing a lower level of assistance) or a major
disaster (providing a higher level of assistance).2
Though many public health activities may be funded through Stafford Act
assistance when an emergency or major disaster is declared, Stafford Act assistance
is not well-tailored toward the public health and medical response to disasters.
Recent incidents — in particular the September 11 and anthrax attacks of 2001, and
several Gulf Coast hurricanes in 2005 — have demonstrated the limitations of
Stafford Act assistance in supporting public health and medical responses. First, it
is not clear that Stafford Act major disaster assistance is available for the response
to infectious disease threats, whether intentional (bioterrorism) or natural (e.g.,
pandemic flu). Second, the Secretary of Health and Human Services (HHS) has
authority to draw upon a special fund to finance departmental activities in response
to unanticipated public health emergencies, but there is at present no money in the
fund. Finally, there is no existing comprehensive mechanism to provide federal
assistance for uninsured individual healthcare costs that may be incurred as a result
of a natural disaster or terrorist incident, though there is not general agreement that
such assistance should be a federal responsibility.
This report examines (1) the statutory authorities and coordinating mechanisms
of the President (acting through the Secretary of Homeland Security) and the
Secretary of HHS in providing routine assistance, and in providing assistance
pursuant to emergency or major disaster declarations and/or public health emergency
1 The terms emergency and major disaster have specific meanings in the Stafford Act. To
avoid confusion, in this report the terms event, incident, and catastrophe will be used in
general reference to events, whether or not Stafford Act assistance applies. The term public
health emergency is also commonly used in both a generic manner and to describe one or
more specific authorities in law. This is discussed further in the Appendix.
2 Information on the Stafford Act is provided, in part, by Keith Bea of the Government and
Finance Division of the Congressional Research Service (CRS). For background on the
Stafford Act, see CRS Report RL33053, Federal Stafford Act Disaster Assistance:
Presidential Declarations, Eligible Activities, and Funding, by Keith Bea.

---

CRS-2
determinations; (2) mechanisms to assure a coordinated federal response to public
health and medical emergencies, and overlaps or gaps in agency responsibilities; and
(3) existing mechanisms and potential gaps in financing the costs of a response to
public health and medical emergencies. A listing of federal public health emergency
authorities is provided in the Appendix.
For more information on aspects of public health and medical preparedness and
response in general, and in the context of specific disasters or threats, see the
following CRS Reports:
! RL33096, 2005 Gulf Coast Hurricanes: The Public Health and
Medical Response;
! RL33083, Hurricane Katrina: Medicaid Issues;
! RL33738, Gulf Coast Hurricanes: Addressing Survivors’ Mental
Health and Substance Abuse Treatment Needs;
! RL33145, Pandemic Influenza: Domestic Preparedness Efforts;
! RL33589, The Pandemic and All-Hazards Preparedness Act (P.L.
109-417): Provisions and Changes to Preexisting Law;
! RL31719, An Overview of the U.S. Public Health System in the
Context of Emergency Preparedness.
Federal Authority and Plans for Disaster Response
Federal Statutory Authorities for Disaster Response
Stafford Act: Major Disaster Declaration. A major disaster declaration
issued pursuant to the Stafford Act authorizes the President to provide a variety of
types of assistance to eligible entities.3 A major disaster declaration must meet three
tests — definition, need, and action. First, the statute defines a major disaster as
follows:
“Major disaster” means any natural catastrophe (including any hurricane,
tornado, storm, high water, winddriven water, tidal wave, tsunami, earthquake,
volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of
cause, any fire, flood, or explosion, in any part of the United States, which in the
determination of the President causes damage of sufficient severity and
magnitude to warrant major disaster assistance under this chapter to supplement
the efforts and available resources of States, local governments, and disaster
relief organizations in alleviating the damage, loss, hardship, or suffering caused
thereby.”4
3 42 U.S.C. § 5170(a)-5189. For more information, see CRS Report RL33053, Federal
Stafford Act Disaster Assistance: Presidential Declarations, Eligible Activities, and
Funding, by Keith Bea, under the section titled “Types of Assistance and Eligibility.”
4 42 U.S.C. § 5122(2).

---

CRS-3
Second, the incident must result in damages significant enough to exceed the
resources and capabilities not only of the affected local governments, but the state as
well. The requirement is set forth as follows:
All requests for a declaration by the President that a major disaster exists shall
be made by the Governor of the affected State. Such a request shall be based on
a finding that the disaster is of such severity and magnitude that effective
response is beyond the capabilities of the State and the affected local
governments and that Federal assistance is necessary.5
Third, the state must implement its authorities, dedicate sufficient resources, and
commit to meet its share of the costs, as follows:
As part of such request, and as a prerequisite to major disaster assistance under
this chapter, the Governor shall take appropriate response action under State law
and direct execution of the State’s emergency plan. The Governor shall furnish
information on the nature and amount of State and local resources which have
been or will be committed to alleviating the results of the disaster, and shall
certify that, for the current disaster, State and local government obligations and
expenditures (of which State commitments must be a significant proportion) will
comply with all applicable cost-sharing requirements of this chapter. Based on
the request of a Governor under this section, the President may declare under this
chapter that a major disaster or emergency exists.6
Stafford Act: Emergency Declaration. By comparison with a major
disaster declaration, considerably less assistance is authorized under an emergency
declaration.7 However, the Stafford Act gives the President considerably broader
discretion in issuing an emergency declaration. First, the definition of “emergency”
does not include the specific causal events listed in the definition of “major disaster.”
The President instead may determine whether circumstances are sufficiently dire for
the affected state to call for an emergency declaration. Also, of importance to the
issue of an influenza pandemic or other mass health threat, the protection of public
health is to be considered by the President, as seen in the following:
“Emergency” means any occasion or instance for which, in the determination of
the President, Federal assistance is needed to supplement State and local efforts
and capabilities to save lives and to protect property and public health and safety,
or to lessen or avert the threat of a catastrophe in any part of the United States.8
The statutory provisions concerning the procedures by which an emergency
declaration will be considered by the President, like those for a major disaster, also
contain requirements pertaining to need and action. However, as is the case with the
definition of “emergency,” the procedures section provides for a wider degree of
5 42 U.S.C. § 5170.
6 Ibid.
7 42 U.S.C. § 5192-5193. For more information, see CRS Report RL33053, Federal
Stafford Act Disaster Assistance: Presidential Declarations, Eligible Activities, and
Funding, by Keith Bea, under the section titled “Emergency Declaration Assistance.”
8 42 U.S.C. § 5122(1).

---

CRS-4
discretion on the part of the President. While governors requesting assistance must
take required actions, they do not have to identify that state and local resources have
been committed. Governors must, however, identify the type and extent of federal
aid required. The President also has discretion to act in the absence of a
gubernatorial request if the emergency creates a condition that primarily or solely
constitutes a federal responsibility. The Stafford Act procedure for an emergency
declaration follows:
(a) Request and declaration. All requests for a declaration by the President that
an emergency exists shall be made by the Governor of the affected State. Such
a request shall be based on a finding that the situation is of such severity and
magnitude that effective response is beyond the capabilities of the State and the
affected local governments and that Federal assistance is necessary. As a part of
such request, and as a prerequisite to emergency assistance under this chapter,
the Governor shall take appropriate action under State law and direct execution
of the State’s emergency plan. The Governor shall furnish information
describing the State and local efforts and resources which have been or will be
used to alleviate the emergency, and will define the type and extent of Federal
aid required. Based upon such Governor’s request, the President may declare
that an emergency exists.
(b) Certain emergencies involving Federal primary responsibility. The President
may exercise any authority vested in him by Section 5192 of this Title or Section
5193 of this Title with respect to an emergency when he determines that an
emergency exists for which the primary responsibility for response rests with the
United States because the emergency involves a subject area for which, under the
Constitution or laws of the United States, the United States exercises exclusive
or preeminent responsibility and authority. In determining whether or not such
an emergency exists, the President shall consult the Governor of any affected
State, if practicable. The President’s determination may be made without regard
to subsection (a) of this section.9
The emergency declaration authority in the Stafford Act has previously been
used by a President to respond to a public health threat. In the fall of 2000, President
Clinton issued two emergency declarations for New York and New Jersey to help the
states contain the threatened spread of the West Nile virus.10
Public Health Emergency Authorities. Section 319 of the Public Health
Service Act grants the Secretary of HHS broad authority to determine that a public
health emergency exists. Pursuant to such a determination, the Secretary may waive
certain administrative requirements, provide additional forms of assistance, and take
certain other actions to expand federal aid to state and local governments, not-for-
profit entities, and others. The Secretary’s statutory authority to determine a public
health emergency is as follows:
9 42 U.S.C. § 5191. Examples of emergencies involving Federal primary responsibility
include the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, and
the 2001 attack on the Pentagon, both federally owned facilities.
10 For background, see Federal Emergency Management Agency (FEMA) notices at
[http://www.fema.gov/news/disasters.fema?year=2000#em].

---

CRS-5
If the Secretary determines, after consultation with such public health officials
as may be necessary, that — (1) a disease or disorder presents a public health
emergency; or (2) a public health emergency, including significant outbreaks of
infectious diseases or bioterrorist attacks, otherwise exists, the Secretary may
take such action as may be appropriate to respond to the public health
emergency, including making grants, providing awards for expenses, and
entering into contracts and conducting and supporting investigations into the
cause, treatment, or prevention of a disease or disorder as described in
paragraphs (1) and (2).11
The Secretary has a variety of additional authorities to provide assistance. Some of
these authorities require a concurrent determination of public health emergency
pursuant to the Section 319 authority above, some require a concurrent Stafford Act
declaration, and some are independent of any other authority. A listing of various
federal public health emergency authorities is provided in the Appendix.
The emergency authorities of the Secretary of HHS are not strictly comparable
to authorities in the Stafford Act. Stafford Act major disaster assistance is intended
to assist states and individuals with needs that exceed the scope of assistance
routinely provided by federal agencies, and is often triggered by large-scale damage
to public and private infrastructure. In contrast, the response to public health
emergencies, such as infectious disease outbreaks, involves technical assistance for
epidemiologic and laboratory investigation, workforce assistance, the provision of
special drugs or tests, and a variety of other extensions of routine program activities.
The Secretary of HHS can provide a considerable degree of assistance to states,
upon their request, without the restrictions of cause or the requirement to demonstrate
need as with the Stafford Act. For example, simply upon the request of a State
Health Official, and without the involvement of the President, the Centers for Disease
Control and Prevention (CDC) can provide financial and technical assistance to states
for outbreak investigation and disease control activities. These activities are carried
out under the Secretary’s general authority to assist states, pursuant to Section 311
of the Public Health Service Act.12
Public health emergency determinations have been made considerably less often
than have disaster or emergency declarations pursuant to the Stafford Act. The
Secretary of HHS has determined that a public health emergency exists on only three
occasions since 2000: (1) nationwide, in response to the terrorist attacks on
September 11, 2001; (2) in several states affected by Hurricane Katrina in August and
September 2005; and (3) in several states affected by Hurricane Rita in September
2005.13 The rarity of public health emergency declarations may reflect the wide
11 42 U.S.C. § 247d(a), as amended in P.L. 106-505, the Public Health Improvement Act.
12 42 U.S.C. § 243c.
13 More information regarding these determinations is available in CRS Report RL33096,
2005 Gulf Coast Hurricanes: The Public Health and Medical Response, by Sarah A. Lister.
The 2001 determination applied to the September 11 attacks and not to the subsequent
anthrax attack (66 Federal Register 54998, Oct. 31, 2001). Stafford major disaster and
(continued...)

---

CRS-6
latitude that may be exercised by the Secretary of HHS through standing authority.
Compared to authorities in the Stafford Act, the Secretary of HHS appears to have
considerably more discretion in dedicating federal resources, whether he has
determined there to be a public health emergency or not.
Intersection of Stafford Act and Public Health Emergency Authority.
Disaster and emergency authorities pursuant to the Stafford Act are generally
independent of public health emergency authorities. Only one provision in current
law — allowing for the waiver of a number of HHS statutory, regulatory and program
requirements — requires simultaneous Stafford Act and public health emergency
declarations. (See “Waiver of certain requirements” in the Appendix for more
information.) However, when all three types of declarations are issued as a result of
a specific incident, as they were following Hurricane Katrina, it poses a greater
challenge for officials in understanding the altered scope of their response
authorities.14
Federal Coordinating Mechanisms for Disaster Response
National Response Plan. Pursuant to congressional mandate, the
Department of Homeland Security (DHS) released the National Response Plan
(NRP) in December 2004 to establish a comprehensive framework for the
coordination of federal resources under specified emergency conditions.15 The NRP,
which is under the overall coordination of the Secretary of Homeland Security, and
delegated to the Federal Emergency Management Agency (FEMA), sets forth the
responsibilities and roles of federal agencies, identifies tasks to be undertaken by
specified federal officials, and includes annexes that provide detail on support
resources and mechanisms that are integral to the Plan’s implementation. The Plan
is to be invoked after the President issues a major disaster or emergency declaration
under authority of the Stafford Act.
In addition to emergencies that result in Stafford Act declarations, federal
officials implement the NRP during domestic incidents that, among other factors,
13 (...continued)
emergency declarations may be found on FEMA’s website at [http://www.fema.gov/
hazard/index.shtm].
14 For example, for Hurricane Katrina, Louisiana received an emergency declaration on Aug.
27, 2006, prior to landfall, which was superceded by a major disaster declaration on Aug.
29, 2006, the day of landfall. The Secretary of HHS also determined that a public health
emergency existed in Louisiana, effective Aug. 29, 2006. To further complicate matters, at
least two types of assistance to Louisiana citizens — Medicaid and Crisis Counseling
Program grants — were based on their evacuation status from Stafford major disaster areas,
and were available to them in host areas (including other states), some of which did not
themselves have major disaster declarations.
15 6 U.S.C. § 312(6). See Department of Homeland Security, National Response Plan,
December 2004, hereafter called the NRP, at [http://www.dhs.gov/xprepresp/programs/].
The NRP superseded the Federal Response Plan that had been used since 1992. See also
CRS Report RL32803, The National Preparedness System: Issues in the 109th Congress,
by Keith Bea.

---

CRS-7
satisfy any one of four criteria set out by President Bush in Homeland Security
Presidential Directive (HSPD) - 5.16 These include:
! a federal agency, under its own authority, requests DHS assistance;
! state and local governments overwhelmed by an emergency request
federal aid not only through Stafford Act declarations but also
through “catastrophic incidents” that, whether caused by natural or
human actions, result in “extraordinary” mass casualties or
disruptions of functions that might threaten national security;
! more than one federal agency is involved in incident response; and,
! the President directs the Secretary of DHS to assume management
of an incident.17
National Response to an Influenza Pandemic. In addition to the NRP,
which guides a coordinated federal all-hazards response (i.e., to a variety of
catastrophes), numerous federal and other planning documents specific for an
influenza pandemic have been published. Selected planning documents are listed
below. Unless otherwise noted, they can be found on a government-wide pandemic
flu website managed by HHS.18
! The National Strategy for Pandemic Influenza, November 2005:
outlines general responsibilities of individuals, industry, state and
local governments, and the federal government in preparing for and
responding to a pandemic.
! The HHS Pandemic Influenza Plan, November 2005: provides
guidance to national, state and local policy makers and health
departments, outlining key roles and responsibilities during a
pandemic and specifying preparedness needs and opportunities.
This plan emphasizes specific preparedness efforts in the public
health and healthcare sectors.
! Department of Defense Influenza Pandemic Preparation and
Response Health Policy Guidance, January 2006: provides policy
and instructions for Department of Defense (DOD) military assets
regarding influenza pandemic preparedness and response, with the
goal of maintaining operational effectiveness by minimizing death,
disease and lost duty time of military members.19
16 White House, “Homeland Security Presidential Directive/HSPD-5, Subject: Management
of Domestic Incidents,” press release, Feb. 28, 2003, at [http://www.whitehouse.gov/news/].
17 Modifications to the NRP were issued by DHS on May 25, 2006, replacing the phrase
“Incidents of National Significance” with more general and undefined terms such as
“incident,” “actual or potential domestic incidents,” or “domestic incident management.”
The impact of such a change might be significant, as the criteria for invoking the NRP might
change from situations not envisioned to be “Incidents of National Significance.” See DHS,
Notice of Change to the National Response Plan, May 25, 2006, at [http://www.
dhs.gov/xprepresp/programs/].
18 See [http://www.pandemicflu.gov/].
19 Assistant Secretary of Defense for Health Affairs William Winkenwerder, Jr.,
(continued...)

---

CRS-8
! National Strategy for Pandemic Influenza, Implementation Plan,
May 2006: assigns more than 300 preparedness and response tasks
to departments and agencies across the federal government; includes
measures of progress and timelines for implementation; provides
initial guidance for state, local, and tribal entities, businesses,
schools and universities, communities, and non-governmental
organizations on the development of institutional plans; provides
initial preparedness guidance for individuals and families.
! Pandemic Influenza Preparedness, Response, and Recovery Guide
for Critical Infrastructure and Key Resources, September 2006:
provides business planners with guidance to assure continuity during
a pandemic for facilities comprising critical infrastructure sectors
(e.g., energy and telecommunications) and key resources (e.g., dams
and nuclear power plants).
! State pandemic plans: All states were required to develop and
submit specific plans for pandemic flu preparedness, as a
requirement of grants provided by HHS.
Would the Stafford Act Apply in a Flu Pandemic?
Each of the pandemic influenza plans listed earlier is written with the premise
that the NRP could be triggered by a flu pandemic, thereby guiding a coordinated
federal response to problems within the health sector and other affected sectors
through routine, non-emergency, federal assistance mechanisms.20 According to the
Pandemic Implementation Plan, the Secretary of Homeland Security may declare a
pandemic an Incident of National Significance early in the event, perhaps while
19 (...continued)
“Department of Defense Influenza Pandemic Preparation and Response Health Policy
Guidance,” memorandum to the Joint Services, Jan. 25, 2006, at [http://www.vaccines.
mil/documents/886PandemicFluPolicy.pdf]. The guidance assumes that DOD: (1) will
support the HHS in pandemic response by conducting medical and laboratory surveillance
and diagnostic testing through DOD assets; (2) may, under applicable authorities, assist civil
authorities by providing logistical and medical support; and (3) may, upon a civilian request,
respond immediately to save lives, mitigate human suffering, minimize property damage,
or restore essential operations and services.
20 The NRP Biological Incident Annex notes that “Actions described in this annex take place
with or without a presidential Stafford Act declaration or a public health emergency
declaration” by the Secretary of HHS. See NRP, Biological Incident Annex, p. BIO-1.
While this annex addresses intentional bioterrorism events, it also addresses naturally
occurring biological threats, and explicitly mentions pandemic influenza. In contrast, the
NRP Catastrophic Incident Annex does not explicitly mention pandemic influenza. While
this annex is designed to address disasters with “extraordinary levels of mass casualties”
such as could occur with a pandemic, it is also explicitly focused on “no-notice or
short-notice incidents of catastrophic magnitude,” a definition that would not likely apply
to an influenza pandemic. See NRP, Catastrophic Incident Annex, p. CAT-1, and DHS,
Notice of Change to the National Response Plan, May 25, 2006, pp. 9-10, at
[http://www.dhs.gov/xprepresp/programs/].

---

CRS-9
foreign countries were affected, but before the disease had reached the United
States.21
It is unclear whether Stafford Act major disaster assistance could be provided
in response to a pandemic. Given that emergency declarations pursuant to the
Stafford Act were made in response to West Nile virus in 2000, there is precedent for
a presidential emergency declaration in response to an infectious disease threat. The
matter of presidential authority to declare a major disaster (providing a higher level
of federal assistance) in response to an infectious disease threat generally, and a flu
pandemic specifically, is less clear. FEMA has in the past, in the context of the
national TOPOFF exercises, interpreted biological disasters as ineligible for major
disaster assistance pursuant to the Stafford Act.22 However, the Administration view
is that the President’s authority to declare a major disaster pursuant to the Stafford
Act could be applied to an influenza pandemic.23
NRP Emergency Support Function 8:
Roles and Challenges
Overview
Hurricane Katrina demonstrated the scope of public health and medical
activities needed in response to a large-scale catastrophe. A successful public health
response — which involves the monitoring and assurance of the safety of food and
water, prevention of injury, control of infectious diseases, and a host of other
activities — is carried out by a variety of entities, primarily government and not-for-
profit agencies.
A successful medical response is perhaps more challenging, requiring the
coordination of several elements, which are variously based in federal, state or local
authority, or in the private sector. These elements are (1) patients, who may be
inaccessible and require rescue or medical evacuation; (2) a treatment facility, which
may be an existing hospital or a field tent with cots; (3) a competent healthcare
workforce; (4) appropriate medical equipment and non-perishable medical supplies;
(5) appropriate drugs, vaccines, tests and other perishable medical supplies; (6) a
system of medical records; and (7) a healthcare financing mechanism. A flu
pandemic would not likely impose the mass dislocations and destruction of
healthcare infrastructure seen following Hurricane Katrina. But, as a pandemic
would affect all areas of the nation simultaneously, responders could not necessarily
count on the state-to-state mutual aid that was critical to the hurricane response.
21 Pandemic Implementation Plan, p. 37.
22 See DHS, Office of the Inspector General, A Review of the Top Officials 3 Exercise,
Office of Inspections and Special Reviews, OIG-06-07, November 2005, p. 30, at
[http://www.dhs.gov/xoig/rpts/mgmt/editorial_0334.shtm]. Also, the anthrax attack in 2001
did not result in a Stafford Act declaration.
23 Pandemic Implementation Plan, Appendix C, “Authorities and References,” p. 212.

---

CRS-10
According to the NRP, the Secretary of HHS is tasked with coordinating
Emergency Support Function 8 (ESF-8), the public health and medical response to
incidents.24 The 15 ESFs in the NRP are coordinating mechanisms, not funding
mechanisms. The response to an influenza pandemic is likely to be primarily an
ESF-8 response, in which public health and medical needs could be substantial. Less
onerous burdens might be expected on other ESFs such as transportation, public
works and energy, compared to those imposed following hurricanes and other
weather-related disasters. Nonetheless, planners note that a severe pandemic could
still constitute a multi-sector incident. Staffing shortages and supply chain
disruptions could affect the continuity of services, and possibly the integrity of
infrastructure, in the transportation, public works and energy sectors, among others.
The Secretary of HHS is responsible for coordinating the following activities
under ESF-8, and may request assistance from 14 designated support agencies and
the American Red Cross as needed:
! assessment of public health and medical needs;
! health surveillance;
! medical care personnel;
! health and medical equipment and supplies;
! patient evacuation;
! patient care;
! safety and security of human drugs, biologics, and medical devices,
veterinary drugs, and other HHS-regulated products;
! blood and blood products;
! food safety and security;
! agriculture safety and security (principally with regard to food-
producing animals and animal feeds and drugs);
! worker health and safety;
! all-hazard public health and medical consultation, technical
assistance and support;
! behavioral health care;
! public health and medical information;
! vector control (e.g., control of disease-carrying insects and rodents);
! potable water, wastewater and solid waste disposal;
! victim identification and mortuary services; and
! protection of animal health (principally with regard to HHS-
regulated animal feeds and drugs).
HHS does not bear primary responsibility for mass care, which is the
coordination of non-medical services such as shelter, feeding, emergency first aid,
and efforts to reunite displaced family members. Mass care is the responsibility of
24 NRP, Annex ESF#8, at [http://www.dhs.gov/xprepresp/programs/]. See also HHS, “HHS
Maintains Lead Federal Role for Emergency Public Health and Medical Response,” press
release, Jan. 6, 2005. Many ESF-8 responsibilities and activities are delegated to the
Assistant Secretary for Preparedness and Response (formerly called the Assistant Secretary
for Public Health Emergency Preparedness). See HHS, Office of the Secretary, Office of
Public Health Emergency Preparedness, “Statement of Organization, Functions, and
Delegations of Authority,” 71 Federal Register 38403, July 6, 2006.

---

CRS-11
DHS and is carried out by the FEMA and the American Red Cross according to ESF-
6. HHS is also not responsible for urban search and rescue, which is also the
responsibility of DHS and FEMA pursuant to ESF-9. Furthermore, HHS may depend
on numerous other agencies to carry out certain of their ESF activities (e.g., public
safety, road clearing and power restoration) before some ESF-8 activities can
commence.
ESF-8 Leadership
Some have questioned whether the NRP clearly defines federal ESF-8
leadership, or whether the respective roles of the Secretaries of Homeland Security
and HHS could conflict during a response. Some, including congressional
investigators, felt this conflict was in evidence during the response to Hurricane
Katrina.25 Others are concerned that the respective roles are insufficiently clear to
guide a coordinated response to a flu pandemic.
In October 2006, the President signed P.L. 109-295, the Post-Katrina
Emergency Management Reform Act of 2006 (called the “Post-Katrina Act”;
included in DHS appropriations for FY2007), which reauthorized and reorganized
programs in FEMA.26 Among other things, the law also codified the position of
Chief Medical Officer (CMO) at DHS, the individual who coordinates all
departmental activities regarding medical and public health aspects of disasters. The
Post-Katrina Act provided that the CMO “shall have the primary responsibility within
the Department for medical issues related to natural disasters, acts of terrorism, and
other man-made disasters.”27 (Emphasis added). Subsequently, in December 2006,
the President signed P.L. 109-417, the Pandemic and All-Hazards Preparedness Act,
which provided that “The Secretary of Health and Human Services shall lead all
Federal public health and medical response to public health emergencies and
incidents covered by the National Response Plan....”28 (Emphasis added.) Members
of Congress will likely be interested in how this statutory division of authority is
implemented by the two departments when responding to future disasters.
25 See U.S. Senate, Committee on Homeland Security and Governmental Affairs, Hurricane
Katrina: A Nation Still Unprepared, chap. 24, p. 28ff, May 2006, online at
[http://hsgac.senate.gov/], hereafter called A Nation Still Unprepared; and the White House,
The Federal Response to Hurricane Katrina: Lessons Learned, p. 47, Feb. 2006, at
[http://www.whitehouse.gov/reports/katrina-lessons-learned/], hereafter called Lessons
Learned.
26 See CRS Report RL33729, Federal Emergency Management Policy Changes After
Hurricane Katrina: A Summary of Statutory Provisions, by Keith Bea, Barbara L.
Schwemle, L. Elaine Halchin, Francis X. McCarthy, Frederick M. Kaiser, Henry B. Hogue,
Natalie Paris Love and Shawn Reese.
27 P.L. 109-295, 120 Stat. 1409.
28 P.L. 109-417, Section 101.

---

CRS-12
Unclear Federal Leadership for Certain Response Functions
In the response to Hurricane Katrina, it became apparent that federal
responsibility to coordinate certain support activities was not clear in the existing
ESF assignments in the NRP. Some of the problems affecting ESF-8 are discussed
below.
It is not essential that an ESF lead agency have direct control of all of the federal
assets needed for the relevant response. The NRP, in fact, assumes that federal
agencies retain control over their assets and that NRP mechanisms ensure that
resource delivery from multiple federal agencies is coordinated. However, there was
considerable discussion in the 109th Congress regarding whether an ESF-8 medical
disaster response could function effectively when the National Disaster Medical
System (NDMS), a key federal medical response asset, was based at DHS, in FEMA,
rather than at HHS.29 NDMS had been transferred from HHS to DHS in P.L.
107-296, the Homeland Security Act, effective when the new department was created
in 2003. In studying the response to Hurricane Katrina, congressional and White
House investigators found that, among other problems, NDMS deployments were
made by FEMA without the knowledge or involvement of personnel at HHS.30 P.L.
109-417, the Pandemic and All-Hazards Preparedness Act, transferred NDMS back
to HHS, effective January 1, 2007.31 (Congress also made this transfer in the Post-
Katrina Act. The transfer was supported by the Administration.32)
(The role of NDMS in a flu pandemic is a matter of some discussion as well.
As a pandemic would be a near-simultaneous national incident, the value of a mobile
medical force is less apparent than it would be in a localized event. Some planners
have suggested that NDMS personnel should remain within their home communities.
The Pandemic Implementation Plan envisions the strategic use of NDMS teams,
when available, to support a variety of federally coordinated disease-control
activities.)
The NRP does not clearly delegate responsibility for the retrieval of human
remains in mass fatality events. HHS is responsible for the ESF-8 function of
29 NDMS consists of a number of medical response teams that can deploy to a scene rapidly
and set up self-sustaining field operations for up to 72 hours, until additional federal support
arrives. Additional information about NDMS is available in CRS Report RL33096, 2005
Gulf Coast Hurricanes: The Public Health and Medical Response, by Sarah A. Lister.
30 See the U.S. House of Representatives, A Failure of Initiative: The Final Report of the
Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane
Katrina, p. 297, Feb. 2006, at [http://katrina.house.gov/]; U.S. Senate, Committee on
Homeland Security and Governmental Affairs, Hurricane Katrina: A Nation Still
Unprepared, chapter 24, p. 29, May 2006, at [http://hsgac.senate.gov/]; and the White
House, The Federal Response to Hurricane Katrina: Lessons Learned, p. 47, Feb. 2006, at
[http://www.whitehouse.gov/reports/katrina-lessons-learned/].
31 See HHS NDMS home page at [http://www.ndms.dhhs.gov/].
32 Office of Management and Budget, “Statement of Administration Policy: H.R. 5441 —
Department of Homeland Security Appropriations Bill, FY2007,” Senate version, July 12,
2006, p. 2, at [http://www.whitehouse.gov/omb/legislative/sap/109-2/hr5441sap-s.pdf].

---

CRS-13
coordinating federal assistance to identify victims and determine causes of death.
NDMS Disaster Mortuary Assistance Teams (DMORTs) comprise medical
examiners, pathologists, dental technicians and other medical personnel. These
teams are not skilled in the safe retrieval of remains from hazardous sites such as
waterways or collapsed buildings. Other responders, including Urban Search and
Rescue teams and the Coast Guard, are trained to work safely in such dangerous
conditions, but their mission is to rescue the living, not recover the dead.33 The
matter of mass fatality management is of considerable concern to pandemic planners,
and this gap could be problematic during such an incident.
At times the distinction between ESF-6 and ESF-8 may be blurred. Emergency
Support Function 6 (ESF-6), Mass Care, under the leadership of FEMA and the
American Red Cross, lays out the coordination of emergency shelter, feeding, and
related activities for affected populations. As was evident in the response to
Hurricane Katrina, the ESF functions overlapped when evacuees in Red Cross
shelters required medical care, or when large numbers of hospital patients evacuated
to ESF-8 field hospitals required food and water. This problem may be amenable to
an administrative solution, and is being considered by FEMA, HHS and the
American Red Cross in their reviews of the hurricane response and their ongoing
preparedness activities.
In the current version of the NRP, leadership for the federal coordination of
mental and behavioral health services following a disaster appears to be split between
ESF-6 and ESF-8. “Crisis counseling” is among the responsibilities delegated in
ESF-6, while federal coordination of “behavioral health care” — including assessing
mental health and substance abuse needs, and providing disaster mental health
training for workers — is delegated in ESF-8. Hence, federal leadership for disaster
mental health in the NRP is delegated to both FEMA and to HHS.34 (When the
disaster involves terrorism or other forms of violence, the Department of Justice may
also become a key federal partner, as was seen following the Oklahoma City
bombing.35)
Finally, the NRP does not clearly delegate federal responsibility for the well-
being of pets during disasters.36 It is well established that some people are reluctant
33 Further discussion of the difficulties in coordinating body retrieval following Hurricane
Katrina is available in A Failure of Initiative, p. 299.
34 For more information, see CRS Report RL33738, Gulf Coast Hurricanes: Addressing
Survivors’ Mental Health and Substance Abuse Treatment Needs, by Ramya Sundararaman,
Sarah A. Lister, and Erin D. Williams.
35 The Department of Justice shares leadership responsibilities with DHS for ESF-13, Public
Safety and Security. ESF-13 does not explicitly mention mental health.
36 A search of the NRP for the terms “pets” and “companion animals” yields references only
to FDA’s responsibilities to assure the safety of animal drugs, and USDA’s responsibilities
to control animal diseases affecting livestock and to advise on decontamination procedures
for pets exposed to radioactive material. See also, R. Scott Nolen and Allison Rezendes,
“Summit Works Toward National Animal Disaster Plan,” Journal of the American
Veterinary Medical Association, news article, June 15, 2006, at [http://www.avma.org/

---

CRS-14
to abandon their pets and will remain at home, despite an evacuation order, if they
cannot take pets with them. Therefore, the absence of coordinated mechanisms to
assure the safety of pets in disasters may jeopardize human safety as well.37 Several
states (e.g., Florida, Louisiana, and Texas) have incorporated pet-friendly shelters or
other arrangements in their disaster plans, to address this concern. In the Post-
Katrina Act, Congress included a provision requiring the department, in approving
standards for state and local emergency plans, to account for the needs of individuals
with household pets and service animals before, during, and after a major disaster or
emergency, in particular with regard to evacuation planning and planning for the
needs of individuals with disabilities. In addition, the act authorized the President
to make Stafford Act individual assistance available to households with pets when
needed for the immediate response to a major disaster38 Congress passed similar
provisions in P.L. 109-308, the Pets Evacuation and Transportation Standards Act
of 2006. Neither act, however, addressed the broader matter of federal leadership for
the needs of pets in disasters.
Federal Funding to Support an ESF-8 Response
Hurricane Katrina represented the greatest test of ESF-8 since the creation of
DHS and the publication of the NRP. A variety of public health and medical
activities were undertaken in the hurricane response. The costs of these activities
were borne by agencies at the federal, state and local levels, not-for-profit groups,
businesses, healthcare providers, insurers, families, and individuals. Private
insurance covered some of the property damage, healthcare and other costs resulting
from the disaster. Congress provided additional assistance through emergency
appropriations to cover expanded federal agency activities and a portion of uninsured
healthcare costs. Some other costs, such as the costs of rebuilding the devastated
healthcare infrastructure in New Orleans, have not been fully met at this time, either
through existing assistance mechanisms or mechanisms developed since the storm.39
The response to Hurricane Katrina, and ongoing pandemic preparedness efforts, each
offer a glimpse of the complexity and adequacy of existing mechanisms to fund the
costs of an ESF-8 response.
36 (...continued)
onlnews/javma/jun06/060615a.asp].
37 See DHS: “Nationwide Plan Review, Phase 2 Report,” June 16, 2006, p. 53, at
[http://www.dhs.gov/xprepresp/programs/]; and “Ready.gov,” preparedness information for
pet owners, at [http://www.ready.gov/america/getakit/pets.html].
38 P.L. 109-295, §§ 536, 653 and 689.
39 See Government Accountability Office, “Status of the Health Care System in New
Orleans,” GAO-06-576R, Mar. 28, 2006; the Louisiana Health Care Redesign Collaborative,
at [http://www.hhs.gov/louisianahealth/]; and Bruce Alpert, “GAO Says Hospitals not
Worth Salvaging,” Times-Picayune, Mar. 30, 2006.

---

CRS-15
Funding Sources and Authorities
The Disaster Relief Fund. Activities undertaken under authority of the
Stafford Act are funded through appropriations to the Disaster Relief Fund (DRF),
administered by FEMA. Federal assistance supported by the DRF is used by states,
localities, and certain non-profit organizations to provide mass feeding and shelter,
restore damaged or destroyed facilities, clear debris, and aid individuals and families
with uninsured needs, among other activities. Federal agencies also receive mission
assignments from FEMA to provide assistance pursuant to the NRP, and are
reimbursed through funds appropriated to the DRF. Through mission assignments,
the DRF supported a variety of federal public health activities in the response to
Hurricane Katrina, including activities to assure the safety of food and water, monitor
population health status (including mental health), control infectious diseases and
mosquitoes, and evaluate potential health threats associated with chemical releases.
The DRF is not generally available to pay or reimburse the costs of health care for
individuals, though it may pay such costs to a limited extent. (See “Federal
Assistance for Disaster-Related Healthcare Costs,” below.)
The DRF is a no-year account in which appropriated funds remain available
until expended. Supplemental appropriations legislation is generally required each
fiscal year to replenish the DRF to meet the urgent needs of particularly catastrophic
disasters.40
The Public Health Emergency Fund. In 1983, Congress established
authority for a no-year public health emergency fund to be available to the HHS
Secretary.41 In 2000, Congress reauthorized the fund, clarifying that it could only be
used when the Secretary had made a determination of a public health emergency
pursuant to 42 U.S.C. § 247d(a), as follows:
(1) In general. There is established in the Treasury a fund to be designated as the
“Public Health Emergency Fund” to be made available to the Secretary without
fiscal year limitation to carry out subsection (a) only if a public health emergency
has been declared by the Secretary under such subsection. There is authorized to
be appropriated to the Fund such sums as may be necessary.
(2) Report. Not later than 90 days after the end of each fiscal year, the Secretary
shall prepare and submit to the Committee on Health, Education, Labor, and
Pensions and the Committee on Appropriations of the Senate and the Committee
on Commerce and the Committee on Appropriations of the House of
Representatives a report describing — (A) the expenditures made from the
Public Health Emergency Fund in such fiscal year; and (B) each public health
emergency for which the expenditures were made and the activities undertaken
with respect to each emergency which was conducted or supported by
expenditures from the Fund.42
40 For more information, see CRS Report RL33053, Federal Stafford Act Disaster
Assistance: Presidential Declarations, Eligible Activities, and Funding, by Keith Bea.
41 P.L. 98-49.
42 42 U.S.C. § 247d(b), as amended by P.L. 106-505.

---

CRS-16
Prior to 2000, the fund was authorized for annual appropriations sufficient to
have a balance of $45 million in the fund at the beginning of each fiscal year.
Despite this prior authorization of annual appropriations, the fund received
appropriations only in response to a few public health threats (e.g., the emergence of
hantavirus in the Southwest in 1993-1994), but did not receive an appropriation for
its intended use as a reserve fund for unanticipated events. The fund has not received
an appropriation since it was explicitly linked to the public health emergency
authority in 42 U.S.C. § 247d(a) in 2000. As a consequence, the fund was not
utilized during three public health emergency determinations made subsequently: (1)
nationwide, in response to the terrorist attacks on September 11, 2001; (2) in several
states affected by Hurricane Katrina in August and September 2005; and (3) in
several states affected by Hurricane Rita in September 2005.43
In 2002, Congress reauthorized the National Disaster Medical System (NDMS)
in language suggesting that the emergency fund could be used to support NDMS
activities, as follows:
... For the purpose of providing for the Assistant Secretary for Public Health
Emergency Preparedness and the operations of the National Disaster Medical
System, other than purposes for which amounts in the Public Health Emergency
Fund under Section 319 are available, there are authorized to be appropriated
such sums as may be necessary for each of the fiscal years 2002 through 2006.44
Depending on available funds, this mechanism could be used to fund NDMS
deployments that occurred in the absence of Stafford Act declarations.
The Public Health and Social Services Emergency Fund. The Public
Health and Social Services Emergency Fund (PHSSEF) is an account at HHS that has
been used to provide annual or emergency supplemental appropriations for one-time
or short-term public health activities in a variety of agencies and offices. Providing
funding to the PHSSEF, which does not have an explicit authority in law, separates
these amounts from an agency’s annual “base” funding. Recent activities funded
through the PHSSEF include preparedness activities for a flu pandemic, one-time
purchases for the Strategic National Stockpile (SNS), and funding for state public
health and hospital preparedness. Amounts appropriated to the PHSSEF may or may
not be designated as emergency spending. Because the PHSSEF has been used only
to fund certain planned activities, it is not a reserve fund for unanticipated events.
In FY2006, Congress appropriated certain amounts that had previously been
provided through the PHSSEF directly to the various agencies overseeing the
programs. These included funding for the SNS and grants for upgrading state and
local public health capacity, amounts now appropriated in CDC’s “Terrorism and
Public Health Preparedness” budget line,45 and state grants for hospital preparedness,
43 More information regarding these determinations is available in CRS Report RL33096,
2005 Gulf Coast Hurricanes: The Public Health and Medical Response, by Sarah A. Lister.
44 42 U.S.C. § 300hh-11, as amended by P.L. 107-188.
45 More information on CDC’s budget is available at [http://www.cdc.gov/fmo/

---

CRS-17
now appropriated in the budget line for bioterrorism programs of the Health
Resources and Services Administration (HRSA).46
Funding the ESF-8 Response to Hurricane Katrina
In response to the widespread destruction caused by Hurricane Katrina, the 109th
Congress enacted two FY2005 emergency supplemental appropriations bills (P.L.
109-61 and P.L. 109-62), which together provided $62.3 billion for emergency
response and recovery needs. The FY2006 appropriations legislation for the
Department of Defense (P.L. 109-148) subsequently reallocated $23.4 billion in
funds appropriated in the two emergency supplemental statutes, and an additional
amount from a government-wide rescission, primarily to pay for the restoration of
damaged federal facilities. In June 2006, Congress provided an additional $6 billion
to the DRF in P.L. 109-234, the Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Hurricane Recovery, 2006.47
A portion of supplemental appropriations to the DRF supported federal ESF-8
response activities. FEMA reports to Congress on expenditures for mission
assignments to both HHS, and separately to CDC (an agency within HHS), for the
responses to Hurricanes Katrina, Rita and Wilma.48 A number of HHS agencies in
addition to CDC were involved in the response to the hurricanes, and their activities,
when requested by FEMA, were presumably reimbursed through the DRF.49
There were likely other HHS activities carried out in response to the hurricanes
that would not fall within the scope of activities reimbursable by the DRF. For
example, on September 16, 2005, CDC issued guidance to state grantees permitting
them to redirect funds from a number of grant programs to their hurricane relief
efforts as needed.50 According to CDC, funds could be used for alternate activities
45 (...continued)
fmofybudget.htm].
46 More information on HRSA’s budget is available in the FY2007 budget justification at
[http://www.hrsa.gov/about/budgetjustification07/].
47 For more information, see CRS Report RS22239, Emergency Supplemental
Appropriations for Hurricane Katrina Relief, by Keith Bea; and CRS Report RL33298,
FY2006 Supplemental Appropriations: Iraq and Other International Activities; Additional
Hurricane Katrina Relief, coordinated by Paul M. Irwin and Larry Nowels.
48 DHS, FEMA, “Disaster Relief Fund (DRF) Report,” Congressional Monthly Report, as
of Dec. 8, 2006.
49 For information regarding the activities of HHS agencies in response to the 2005
hurricanes, see CRS Report RL33096, 2005 Gulf Coast Hurricanes: The Public Health and
Medical Response, by Sarah A. Lister; and HHS, Centers for Medicare and Medicaid
Services (CMS), “Summary of Federal Payments Available for Providing Health Care
Services to Hurricane Evacuees and Rebuilding Health Care Infrastructure,” Jan. 25, 2006,
at [http://www.hhs.gov/katrina/#hhs].
50 CDC, letter from William P. Nichols, Director, CDC Procurement and Grants Office, to
CDC directors and grants management personnel, regarding “Treatment of Grants under
(continued...)

---

CRS-18
within the state, or to support state-to-state mutual aid pursuant to the Emergency
Management Assistance Compact (EMAC).51 States were permitted to redirect funds
from the following federal grant programs: infectious diseases (including
immunization, sexually transmitted disease prevention, tuberculosis, West Nile virus,
hepatitis, HIV, emerging infections and laboratory programs); environmental health;
injury prevention; and, terrorism and emergency preparedness. CDC noted at the
time that “No supplemental appropriations have been provided to CDC for Katrina
relief, so any existing CDC funds used for relief will reduce the overall amount
available to work non-relief grant issues.”52 HRSA also advised state grantees that
some redirection of funds provided by the National Bioterrorism Hospital
Preparedness Program was also permissible to support the hurricane response.53
Information regarding the overall amount of funds that may have been redirected
by HHS agencies to support Hurricane Katrina response activities, and, for those
expenditures that were not reimbursable by the DRF, whether there were alternate
mechanisms to “backfill” the accounts, is not publicly available. HHS received
limited direct supplemental appropriations for its response to Hurricane Katrina,
namely $8 million to CDC for mosquito abatement and other pest control activities,
and $4 million to HRSA to rebuild communications capability in health departments,
community health centers, major medical centers, and other entities that would
continue to provide health care in areas affected by Hurricane Katrina.54
Federal Assistance for Disaster-Related Healthcare Costs
Existing Mechanisms. Several federal assistance mechanisms are available
to provide limited coverage for the costs of healthcare services that are rendered
during, or required as a result of, a catastrophe. Examples include:
! Services provided by the National Disaster Medical System (NDMS)
or other federalized employees while carrying out mission
assignments requested by FEMA, pursuant to a Stafford Act
declaration, may be reimbursed by the DRF, though efforts are made
to seek reimbursement from patients’ insurers when possible. This
50 (...continued)
Emergency Conditions due to Hurricane Katrina,” Sept. 16, 2005, hereafter referred to as
the Nichols letter.
51 The Emergency Management Assistance Compact is a congressionally approved interstate
mutual aid agreement that provides a legal structure by which states affected by a
catastrophe may request emergency assistance from other states. For more information, see
CRS Report RS21227, The Emergency Management Assistance Compact (EMAC): An
Overview, by Keith Bea.
52 Nichols letter.
53 See notice posted by the Association of State and Territorial Health Officials at
[http://www.astho.org/templates/display_pub.php?pub_id=1681&admin=1].
54 P.L. 109-234, the Emergency Supplemental Appropriations Act for Defense, the Global
War on Terror, and Hurricane Recovery, 120 STAT. 463. See also CRS Report RS22239,
Emergency Supplemental Appropriations for Hurricane Katrina Relief, by Keith Bea.

---

CRS-19
assistance may be provided under both major disaster and emergency
declarations that involve the provision of health and safety measures
and the reduction of threats to public health and safety.55
! The FEMA Individuals and Households Program (IHP) provides,
pursuant to a Stafford Act declaration and reimbursed from the DRF,
cash assistance that may be used for uninsured medical expenses.
Recipients might have to use the funds to meet other needs
concurrently, such as rent and other costs of living. The amount
available is the same for an individual or a household, and is capped
in statute, with an annual adjustment based on the Consumer Price
Index. The maximum amount available for Hurricane Katrina relief
was $26,200, and the current ceiling is $28,200.56
! The Stafford Act authorizes the President, pursuant to a major
disaster declaration, to provide financial assistance to state and
qualified tribal mental health agencies for professional counseling
services, or training of disaster workers, to relieve disaster victims’
mental health problems caused or aggravated by the disaster or its
aftermath. The Substance Abuse and Mental Health Services
Administration (SAMHSA) in HHS administers the Crisis
Counseling Assistance and Training Program (CCP). Financing for
this assistance is drawn from the DRF.57
! Certain medications and supplies may be provided to patients from
pre-paid stockpiles for which reimbursement is not expected.
Examples may include supplies used in Red Cross first aid stations
or distributed to states from the CDC’s Strategic National Stockpile.
Agencies’ costs may be reimbursed from the DRF if the incident
resulted in a Stafford Act declaration.
! Public Health Service agencies in HHS may provide support to
states and other entities through existing non-emergency
mechanisms to assist in managing surges in healthcare needs for
specific populations. In some cases, agencies have received
supplemental appropriations to support these activities. Examples
include SAMHSA Emergency Response Grants (SERG) to states,
territories, and federally recognized tribal authorities for crisis
mental health and substance abuse services,58 and expanded federal
55 42 U.S.C. § 5170b (major disaster) and 42 U.S.C. § 5192 (emergency).
56 71 Federal Register 59514, Oct. 10, 2006. For more information on the FEMA
Individuals and Households Program, see DHS, Office of Inspector General, “A
Performance Review of FEMA’s Disaster Management Activities in Response to Hurricane
Katrina,” OIG-06-32, Appendix B, pp. 149 ff., March 2006, at [http://www.dhs.gov/
xoig/rpts/mgmt/OIG_mgmtrpts_FY06.shtm].
57 42 U.S.C. § 5183. For more information, see CRS Report RL33738, Gulf Coast
Hurricanes: Addressing Survivors’ Mental Health and Substance Abuse Treatment Needs,
by Ramya Sundararaman, Sarah A. Lister, and Erin D. Williams.
58 Ibid.

---

CRS-20
support, including personnel, for health centers in disaster-affected
areas.59
These programs provide a patchwork of coverage that in some cases fails to
optimally match services with need (e.g., the Crisis Counseling Program), or in other
cases fails to meet the magnitude of need (e.g., the FEMA Individuals and
Households program). Furthermore, these programs are not generally coordinated
with each other at the federal level, though programs that support state activities to
finance or deliver healthcare services may be coordinated at that level.
Financing Healthcare Needs Following Hurricane Katrina. Hurricane
Katrina was one of the worst natural disasters in the nation’s history, and the largest
mass casualty incident in recent times. Many of Katrina’s victims were dislocated
to different states, separated from their documentation of health insurance, or both.
Others lost employer-based health insurance due to the destruction or closure of
businesses. In many cases, care was rendered without definitive financing
mechanisms, while federal, state and private entities worked to retrofit these
mechanisms in the disaster’s aftermath.
In response to Hurricane Katrina, HHS expanded a number of existing programs
to assist state and local agencies, healthcare providers and the storms’ victims with
a variety of health and public health needs.60 Information regarding the overall cost
of these expansions is not publicly available.
In 2002, Congress gave the Secretary of HHS authority to waive certain
administrative requirements for provider participation in Medicare, Medicaid and the
State Children’s Health Insurance Program (SCHIP) when there has been both a
Stafford Act declaration by the President and a determination of public health
emergency by the Secretary of HHS.61 This authority was exercised in a number of
affected and host states following Hurricane Katrina. While this authority may
improve access to healthcare services in affected areas, it does not directly address
the financing of services.
A significant challenge following Hurricane Katrina involved setting up or re-
establishing healthcare financing mechanisms for displaced individuals. Ultimately,
the Medicaid program became the mechanism by which affected and host states
financed certain healthcare costs that were not compensated through other public or
private insurance sources. After several months of debate over a number of
proposals, Congress provided, in the Deficit Reduction Act of 2005, authority and
funding to cover, for certain states through January 31, 2006, the Medicaid and
59 Health centers provide healthcare services regardless of ability to pay. For more
information, see HRSA, Bureau of Primary Health Care, Health Center Program, at
[http://bphc.hrsa.gov/chc/]; and Hurricane Relief and Recovery, at [http://www.hrsa.gov/
katrina/].
60 HHS, Centers for Medicare and Medicaid Services (CMS), “Summary of Federal
Payments Available for Providing Health Care Services to Hurricane Evacuees and
Rebuilding Health Care Infrastructure,” Jan. 25, 2006, at [http://www.hhs.gov/katrina/#hhs].
61 42 U.S.C. § 1320b-5, enacted in P.L. 107-188.

---

CRS-21
SCHIP matching requirements for individuals enrolled in these programs, and the
total cost of uncompensated care for the uninsured, for eligible individuals who had
been displaced from declared major disaster areas.62 Congress provided up to $2
billion for these activities.63 This was in addition to $100 million earlier provided in
supplemental appropriations to NDMS to cover expenses related to the response to
Hurricane Katrina.64 (Through an interagency agreement, most of the $100 million
was transferred from FEMA to the HHS Centers for Medicare and Medicaid Services
(CMS), which is also administering the $2 billion amount.65) According to HHS, as
a result of this mechanism, eight states were able to reimburse providers that incurred
uncompensated care costs as a result of serving an estimated 325,000 evacuees, and
32 states were able to provide continuity of coverage for up to five months for
displaced low-income individuals by temporarily enrolling them in a host state’s
Medicaid program through a simplified enrollment process.66
Individuals, healthcare institutions, providers and others affected by Hurricane
Katrina continue to face challenges that are generally beyond the scope of the
nation’s disaster assistance mechanisms. Crisis counseling programs to address
mental health needs in affected areas, and among evacuees, may be extended.67 The
Louisiana Health Care Redesign Collaborative, a federal, state, local and private
partnership, has been developed to effect the rebuilding of the state’s devastated
healthcare infrastructure. The Collaborative hopes to improve healthcare quality and
access through its design, and to make the plan fiscally viable through a Medicaid
62 Section 6201 of P.L. 109-171, the Deficit Reduction Act of 2005, enacted Feb. 8, 2006.
This arrangement was designated for those states covered under a Medicaid and SCHIP
waiver developed specifically for Hurricane Katrina relief. For more information, see CRS
Report RL33083: Hurricane Katrina: Medicaid Issues, by Evelyne P. Baumrucker, April
Grady, Jean Hearne, Elicia J. Herz, Richard Rimkunas, Julie Stone, and Karen Tritz. FEMA
had previously determined, regarding a Medicaid waiver proposed by New York state in
response to the terror attack of Sept. 11, 2001, that the DRF may not be used to reimburse
a state for a federal matching requirement. FEMA cited its grant regulations at 44 CFR §
13.24(b)(1), which say that “Except as provided by Federal statute, a cost sharing or
matching requirement may not be met by costs borne by another Federal grant.” (Letter
from Joseph F. Picciano, Acting Regional Director, FEMA Region II, to Edward F. Jacoby,
Jr., Director, New York State Emergency Management Office, Jan. 13, 2003.)
63 HHS reported that $1.5 billion of this had been distributed as of March 2006. See HHS,
“HHS Releases First Round of Katrina Aid to 32 States to Help with Evacuee Health Cost,”
press release, Mar. 26, 2006.
64 P.L. 109-62, Second Emergency Supplemental Appropriations Act to Meet Immediate
Needs Arising From the Consequences of Hurricane Katrina, 2005, Sept. 8, 2005, 119
STAT. 1991.
65 HHS, Centers for Medicare and Medicaid Services, Justification of Estimates for
Appropriations Committees, FY2007, p. 192.
66 HHS, “HHS Participation in the Recovery of the Gulf Coast,” at [http://www.hhs.gov/
louisianahealth/background/].
67 See CRS Report RL33738, Gulf Coast Hurricanes: Addressing Survivors’ Mental Health
and Substance Abuse Treatment Needs, by Ramya Sundararaman, Sarah A. Lister, and Erin
D. Williams.

---

CRS-22
waiver and Medicare demonstration proposal for the affected parishes, which will
require HHS approval.68
Healthcare Needs of 9/11 Responders. Following the September 11,
2001, terrorist attack on the World Trade Center (WTC) in New York City,
thousands of responders worked on the site in a rescue, recovery, and cleanup
operation that lasted more than a year. Many of these workers are experiencing, five
years later, various respiratory, psychological, gastrointestinal, and other problems
felt to be related to their exposures at the site.69 (Physical hazards to which these
individuals were potentially exposed include asbestos and other particulates, heavy
metals, volatile organic compounds, and dioxin).
Following the attack, Congress provided funding to CDC to establish the World
Trade Center Health Registry, an effort to identify and periodically survey people
who were exposed at the site or in the general vicinity, to track their health status
over a 20-year period.70 In addition, several medical monitoring programs were
established to develop and deliver initial, and sometimes followup, health screenings
to groups of individuals potentially at risk of future illness.71 While recruitment for
both activities continues, the monitoring programs have identified a number of
people with serious health problems presumably related to their WTC exposures, at
least two of whom have died. In December 2005, Congress provided $75 million to
CDC for ongoing screening and monitoring activities, and also treatment for
individuals with serious related health conditions who lack other means to finance
their care.72 These funds are expected to run out early in 2007.73
Several proposals were introduced in the 109th Congress to provide a long-term
mechanism to cover the healthcare costs of individuals with WTC-related illnesses.
None of these measures advanced.74 The 110th Congress is likely to continue to study
the problem and possible solutions.
68 See the Louisiana Healthcare Redesign Collaborative charter at [http://www.hhs.gov/
louisianahealth/collaborative/charter.html].
69 See HHS, “World Trade Center Health Resources,” at [http://www.hhs.gov/wtc/].
70 For more information, see New York City Department of Health and Mental Hygiene,
World Trade Center Health Registry site, at [http://www.nyc.gov/html/doh/html/
wtc/index.html].
71 See GAO, “September 11: HHS Has Screened Additional Federal Responders for World
Trade Center Health Effects, but Plans for Awarding Funds for Treatment Are Incomplete,”
testimony, GAO-06-1092T, Sept. 8, 2006.
72 P.L. 109-148, the Department of Defense, Emergency Supplemental Appropriations to
Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006.
73 Sewell Chan, “Money to Treat 9/11 Workers Will Run Out, Officials Say,” The New York
Times, Dec. 19, 2006.
74 See, for example, S. 3918, S. 4021, S. 4022, H.R. 6046, and H.R. 6124.

---

CRS-23
ESF-8 Funding Needs During a Flu Pandemic. While a severe flu
pandemic may constitute a national catastrophe, requiring a robust ESF-8 public
health and medical response, funding needs may not be readily addressed through
existing assistance mechanisms pursuant to the Stafford Act (to the extent that they
apply), and could outstrip existing government and private resources. While the need
for public health and medical services could be considerable, extensive damage to
public or private infrastructure is not anticipated. Costs associated with workforce
surge capacity (e.g., overtime pay) and consumption of certain supplies (e.g., for
public health laboratory tests) could increase substantially. Presuming a surge of
patients in the healthcare system, non-urgent procedures (which are often more
lucrative) could be postponed for weeks or months at a time. This has raised
questions regarding whether there would be shifts in overall revenue to providers for
services rendered during a pandemic, and how such shifts could affect providers and
insurers. Finally, the cost of providing healthcare services during a pandemic, when
almost 46 million Americans lack health insurance, is of concern to many. Some are
concerned that disease control efforts could suffer if some subgroups of the
population were unwilling, because of their insurance status or for other reasons, to
seek care or otherwise interact with disease control authorities during a pandemic.
As previously noted, following Hurricane Katrina, Congress provided $2.1 billion
to states to cover the states’ usual share of Medicaid and SCHIP costs for storm
victims for a defined time period, and the cost of uncompensated care for the
uninsured. This federal assistance mechanism required legislative action and took
nearly six months to enact, in the absence of a pre-existing mechanism to provide
such federal assistance. Whether this could serve as a model for federal assistance
during a flu pandemic is unclear. An important element of the discussion regarding
the Katrina assistance was the desire to help both states that had been directly
affected, and states that had assumed fiscal liability by accepting evacuees. While
the element of victim displacement would not likely be seen during a pandemic,
Congress may nonetheless debate the merits of expanding federal assistance for
healthcare costs during a flu pandemic, and the model developed following Hurricane
Katrina may serve as a useful starting point for discussion.
Conclusion
In carrying out the federal response to public health and medical emergencies and
disasters, the Secretary of HHS has broad authority and considerable discretion in
providing assistance to states, not-for-profit groups, families, and others. But he
lacks a sound funding source to support the response to unanticipated events. In
contrast, the President, acting pursuant to the Stafford Act and through the Secretary
of Homeland Security, has, in the Disaster Relief Fund (DRF), a ready source of
funds to support an immediate response to emergencies and disasters. Stafford Act
assistance is, however, not well-tailored for the response to public health and medical
threats. Indeed, many of these threats (e.g., infectious diseases, including
bioterrorism) may not trigger Stafford major disaster assistance.
When Stafford Act major disaster assistance is available, as it was following
Hurricane Katrina, it may be invaluable in supporting public health response

---

CRS-24
activities under Emergency Support Function 8. Typically, these activities are
inherently governmental, and they are generally reimbursable from the DRF. But
even when a Stafford major disaster declaration is in force, it does little to meet the
uninsured healthcare needs of disaster victims, or to reimburse institutions and
providers who may have provided care without compensation. There is, at this time,
no existing federal mechanism to meet the bulk of uninsured healthcare costs that
disaster victims, their institutions, and providers may face.
Each year there are, typically, dozens of Stafford major disaster declarations
(most resulting from weather-related events), potentially affecting millions of people.
Given that some uninsured healthcare needs go unmet under normal circumstances
in the United States, there is not consensus that the healthcare needs of disaster
victims should become a federal responsibility. However, policy debates regarding
two recent disasters, and concerns about a serious potential infectious disease threat
(i.e., pandemic flu), suggest that some Members of Congress and others are interested
in exploring possible mechanisms to provide such assistance, at least in certain
situations.
Following Hurricane Katrina, Congress provided $2.1 billion through the
Medicaid program to assist states in providing for the healthcare needs of Katrina
evacuees for five months following the storm. Katrina’s victims continue to
experience mental health problems in disproportionate numbers, however. These
problems, and possibly others resulting from the storm and its aftermath, may linger
beyond the duration of assistance programs that may be available to the storm’s
victims.
While there has not been a focused debate on whether there should a federal
mechanism to address uninsured healthcare costs faced by victims of terrorism in
general — at this time, a much smaller group than victims of major disasters — there
has been considerable discussion about the uninsured needs of a specific group of
terrorism victims, those affected by the terrorist attack of September 11, 2001. Many
responders and others who were exposed to World Trade Center site in the months
after the attack are having significant respiratory, mental health, and other health
problems, presumably related to their exposure to the site, more than five years later.
Several legislative proposals to cover the uninsured healthcare costs for these
individuals were introduced but did not advance in the 109th Congress.

---

CRS-25
Appendix:
Federal Public Health Emergency Authorities75
Broad Authority in Section 319
of the Public Health Service Act
In 2000, in P.L. 106-505, the Public Health Improvement Act, Congress gave the
Secretary of HHS76 broad authority to determine that a public health emergency77
exists, as follows:
! “If the Secretary determines, after consultation with such public
health officials as may be necessary, that — (1) a disease or disorder
presents a public health emergency; or (2) a public health
emergency, including significant outbreaks of infectious diseases or
bioterrorist attacks, otherwise exists, the Secretary may take such
action as may be appropriate to respond to the public health
emergency, including making grants, providing awards for expenses,
and entering into contracts and conducting and supporting
investigations into the cause, treatment, or prevention of a disease or
disorder as described in paragraphs (1) and (2).”78
This authority, found in Section 319 of the Public Health Service Act (PHSA) and
codified at 42 U.S.C. § 247d, is the basis for much, but not all of, the Secretary’s
authority to waive or streamline administrative requirements and certain statutory
requirements, and to take certain other actions, when needed, to prepare for or
respond to non-routine threats to public health.
Also in P.L. 106-505, Congress reauthorized a no-year public health emergency
fund to be available to the HHS Secretary during a public health emergency
determined pursuant to the authority above, as follows:
! “There is established in the Treasury a fund to be designated as the
‘Public Health Emergency Fund’ to be made available to the
Secretary without fiscal year limitation to carry out subsection (a)
only if a public health emergency has been declared by the Secretary
under such subsection. There is authorized to be appropriated to the
Fund such sums as may be necessary. ... Not later than 90 days after
the end of each fiscal year, the Secretary shall prepare and submit to
75 Kathleen S. Swendiman, legislative attorney in the American Law Division of CRS,
contributed to this section.
76 In this appendix, unless otherwise stated, “the Secretary” refers to the Secretary of HHS.
77 Federal statute contains numerous authorities relating to instances of public health
emergency. In some cases the term is defined, such as for the HHS Secretary’s key
emergency authority in Section 319 of the Public Health Service Act, though definitions
vary. In other cases the term is not defined, or does not refer explicitly to related authorities.
78 42 U.S.C. § 247d, as amended by P.L. 106-505, the Public Health Improvement Act.

---

CRS-26
the Committee on Health, Education, Labor, and Pensions and the
Committee on Appropriations of the Senate and the Committee on
Commerce and the Committee on Appropriations of the House of
Representatives a report describing — (A) the expenditures made
from the Public Health Emergency Fund in such fiscal year; and (B)
each public health emergency for which the expenditures were made
and the activities undertaken with respect to each emergency which
was conducted or supported by expenditures from the Fund.”79
Subsequently, Congress expanded or clarified the Section 319 emergency
authority, as follows:
! Duration of emergency, notification of Congress: “Any such
determination of a public health emergency terminates upon the
Secretary declaring that the emergency no longer exists, or upon the
expiration of the 90-day period beginning on the date on which the
determination is made by the Secretary, whichever occurs first.
Determinations that terminate under the preceding sentence may be
renewed by the Secretary (on the basis of the same or additional
facts), and the preceding sentence applies to each such renewal. Not
later than 48 hours after making a determination under this
subsection of a public health emergency (including a renewal), the
Secretary shall submit to the Congress written notification of the
determination.”80
! Data submittal and reporting deadlines: “In any case in which the
Secretary determines that, wholly or partially as a result of a public
health emergency that has been determined pursuant to subsection
(a), individuals or public or private entities are unable to comply
with deadlines for the submission to the Secretary of data or reports
required under any law administered by the Secretary, the Secretary
may, notwithstanding any other provision of law, grant such
extensions of such deadlines as the circumstances reasonably
require, and may waive, wholly or partially, any sanctions otherwise
applicable to such failure to comply. Before or promptly after
granting such an extension or waiver, the Secretary shall notify the
Congress of such action and publish in the Federal Register a notice
of the extension or waiver.”81
! Requirement for notification: During the period in which the
Secretary of HHS has determined the existence of a public health
emergency under 42 U.S.C. § 247d, the Secretary “shall keep
relevant agencies, including the Department of Homeland Security,
79 42 U.S.C. § 247d, as amended by P.L. 106-505. This fund has not received a recent
appropriation.
80 42 U.S.C. § 247d, as amended by P.L. 107-188, the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002.
81 Ibid.

---

CRS-27
the Department of Justice, and the Federal Bureau of Investigation,
fully and currently informed.”82
! Emergency use of countermeasures: The Secretary may declare an
emergency justifying expedited use of certain medical
countermeasures on the basis of: (1) a determination by the Secretary
of Homeland Security that there is a domestic emergency, or a
significant potential for a domestic emergency; or (2) on the basis of
a determination by the Secretary of Defense that there is a military
emergency, or a significant potential for a military emergency; or (3)
on the basis of a “determination by the Secretary of a public health
emergency under Section 247d of Title 42 that affects, or has a
significant potential to affect, national security, and that involves a
specified biological, chemical, radiological, or nuclear agent or
agents, or a specified disease or condition that may be attributable to
such agent or agents.”83 This provision in the Federal Food, Drug
and Cosmetic Act is referred to as the Emergency Use Authorization.
! Waiver of certain requirements: In order to assure “that sufficient
health care items and services are available to meet the needs of
individuals in ... (an emergency, and) ... that health care providers
... that furnish such items and services in good faith, but that are
unable to comply with one or more requirements ... may be
reimbursed for such items and services and exempted from sanctions
for such noncompliance, absent any determination of fraud or
abuse,” the Secretary may modify or waive certain statutory or
regulatory requirements following a determination of public health
emergency pursuant to 42 U.S.C. § 247d and an emergency or
disaster declaration by the President pursuant to the National
Emergencies Act (50 U.S.C. § 1601) or the Stafford Act (42 U.S.C.
§ 5121 et seq.).84 Requirements that may be waived or modified
pursuant to this section include (1) conditions of participation and
certain other requirements in the Medicare, Medicaid and SCHIP
programs;85 (2) federal requirements for state licensure of health
professionals; (3) certain provisions of the Emergency Medical
Treatment and Active Labor Act of 1985 (EMTALA); (4) certain
sanctions prohibiting physician self-referral (so-called “Stark”
provisions); (5) modification, but not waiver, of deadlines and
timetables for performance of required activities; (6) limitations on
certain payments for health care items and services furnished to
individuals enrolled in a Medicare + Choice plan; and (7) sanctions
and penalties that arise from noncompliance with certain patient
82 6 U.S.C. § 467, authorized in P.L. 107-296, the Homeland Security Act of 2002.
83 21 U.S.C. § 360bbb-3, authorized in P.L. 108-276, the Project BioShield Act of 2004.
84 42 U.S.C. § 1320b-5, as amended by P.L. 107-188, P.L. 108-276, and P.L. 109-417.
85 For more information on the use of these waivers following Hurricane Katrina, see CRS
Report RL33083, Hurricane Katrina: Medicaid Issues, by Evelyne P. Baumrucker, April
Grady, Jean Hearne, Elicia J. Herz, Richard Rimkunas, Julie Stone, and Karen Tritz.

---

CRS-28
privacy requirements of the Health Insurance Portability and
Accountability Act of 1996.
! Alternate Medicare drug reimbursement method: In situations
where a public health emergency has been determined to exist under
42 U.S.C. § 247d, and “there is a documented inability to access
drugs and biologicals,” the Secretary may, under certain
circumstances, use an alternative methodology for determining
payments of certain drugs under the Medicare program.86
Pursuant to the authority in Section 319, the Secretary of HHS has determined
that a public health emergency exists on three occasions: (1) nationwide, in response
to the terrorist attacks on September 11, 2001; (2) in several states affected by
Hurricane Katrina in August and September, 2005; and (3) in several states affected
by Hurricane Rita in September, 2005.87
Other Public Health Emergency Authorities
of the HHS Secretary
The following is a list of statutory authorities or requirements of the Secretary or
others within HHS to take certain additional actions during public health emergencies
that are not explicitly defined or linked to an emergency determination pursuant to
Section 319 authority. In some cases these actions flow from federal emergency or
major disaster declarations pursuant to the Stafford Act. In other cases reference is
made to a situation of public health emergency, but such emergency is not defined.
! Assistance to states: Pursuant to Section 311 of the Public Health
Service Act, the Secretary of HHS has broad authority to assist state
and local governments in their disease control efforts, upon their
request, as follows: “The Secretary may, at the request of the
appropriate State or local authority, extend temporary (not in excess
of six months) assistance to States or localities in meeting health
emergencies of such a nature as to warrant Federal assistance. The
Secretary may require such reimbursement of the United States for
assistance provided under this paragraph as he may determine to be
reasonable under the circumstances. Any reimbursement so paid
shall be credited to the applicable appropriation for the Service for
the year in which such reimbursement is received.”88 The term
“health emergencies” is not defined in this context, but this authority
underpins a variety of unanticipated activities which are undertaken
each year such as CDC’s deployment of Epidemic Intelligence
Service officers to assist states affected by an ongoing mumps
outbreak.
86 42 U.S.C. § 1395w-3a(e), authorized in P.L. 108-173, the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003.
87 More information regarding these determinations is available in CRS Report RL33096,
2005 Gulf Coast Hurricanes: The Public Health and Medical Response, by Sarah A. Lister.
88 42 U.S.C. § 243c.

---

CRS-29
! National Health Security Strategy: “Preparedness and response
regarding public health emergencies: Beginning in 2009 and every
four years thereafter, the Secretary shall prepare and submit to the
relevant committees of Congress a coordinated strategy (to be
known as the National Health Security Strategy) and any revisions
thereof, and an accompanying implementation plan for public health
emergency preparedness and response. Such National Health
Security Strategy shall identify the process for achieving the
preparedness goals described in subsection (b) and shall be
consistent with the National Preparedness Goal, the National
Incident Management System, and the National Response Plan
developed pursuant to section 502(6) of the Homeland Security Act
of 2002 [6 U.S.C. § 314(6)], or any successor plan.”89
! HHS exemption from “Select Agent” regulation: The Secretary
maintains regulatory control over certain biological agents and
toxins which have the potential to pose a severe threat to public
health and safety. The Secretary may temporarily exempt a person
from the regulatory requirements of this section if “the Secretary
determines that such exemption is necessary to provide for the
timely participation of the person in a response to a domestic or
foreign public health emergency (whether determined under Section
247d(a) of this Title or otherwise).” (Emphasis added).90
! USDA exemption from “Select Agent” regulation: The Secretary,
after granting an exemption under 42 U.S.C. § 262a(g) (relating to
regulation of certain biological agents and toxins) pursuant to “a
finding that there is a public health emergency” may request the
Secretary of Agriculture to “temporarily exempt a person from the
applicability of the requirements of this section with respect to an
overlap agent or toxin, in whole or in part, to provide for the timely
participation of the person in a response to the public health
emergency.”91
! Activation of NDMS: The Secretary may activate the National
Disaster Medical System (NDMS) to “provide health services,
health-related social services, other appropriate human services, and
appropriate auxiliary services to respond to the needs of victims of
a public health emergency (whether or not determined to be a public
health emergency under Section 247d of this Title)” (emphasis
added).92
! Authority for the Strategic National Stockpile: “The Secretary,
in coordination with the Secretary of Homeland Security, shall
89 42 U.S.C. § 300hh-1, as established in P.L. 109-417.
90 42 U.S.C. § 262a, as amended by P.L. 107-188. Additional information regarding the
regulation of so-called “Select Agents” may be found at [http://www.cdc.gov/od/sap/
index.htm] and CRS Report RL31719: An Overview of the U.S. Public Health System in the
Context of Emergency Preparedness, by Sarah A. Lister.
91 7 U.S.C. § 8401, as amended by P.L. 107-188.
92 42 U.S.C. § 300hh-11, as amended by P.L. 107-188.

---

CRS-30
maintain a stockpile or stockpiles of drugs, vaccines and other
biological products, medical devices, and other supplies in such
numbers, types, and amounts as are determined by the Secretary to
be appropriate and practicable, taking into account other available
sources, to provide for the emergency health security of the United
States, including the emergency health security of children and other
vulnerable populations, in the event of a bioterrorist attack or other
public health emergency.”93
! Authority for the Emergency System for Advance Registration
of Volunteer Health Professionals (ESAR-VHP): “Not later than
12 months after the date of enactment of the Pandemic and
All-Hazards Preparedness Act, the Secretary shall link existing State
verification systems to maintain a single national interoperable
network of systems, each system being maintained by a State or
group of States, for the purpose of verifying the credentials and
licenses of health care professionals who volunteer to provide health
services during a public health emergency.”94 “Public health
emergency” is not defined.
! Federal quarantine authority: The Secretary has the authority to
“make and enforce such regulations as in his judgment are necessary
to prevent the introduction, transmission, or spread of communicable
diseases from foreign countries into the States or possessions, or
from one State or possession into any other State or possession.”
These regulations may “provide for the apprehension and
examination of any individual reasonably believed to be infected
with a communicable disease in a qualifying stage.” The term
“qualifying stage” means that the disease is “in a communicable
stage” or is “in a precommunicable stage, if the disease would be
likely to cause a public health emergency if transmitted to other
individuals.”95
! Authority for the administration of smallpox countermeasures:
The Secretary may issue a declaration “concluding that an actual or
potential bioterrorist incident or other actual or potential public
health emergency makes advisable the administration of” certain
countermeasures against smallpox for Public Health Service
employees.96
93 42 U.S.C. § 247d-6b, as amended by P.L. 108-276, the Project BioShield Act of 2004.
94 42 U.S.C. § 247d-7b. The bill was enacted as P.L. 109-417 on December 19, 2006.
Additional information regarding ESAR-VHP is at [http://www.hrsa.gov/esarvhp/].
95 42 U.S.C. § 264. There are other sections dealing with quarantines such as 42 U.S.C. §
243, assistance to States in the enforcement of quarantine regulations and public health
plans; § 249, medical care for quarantined persons; and § 267, dealing with quarantine
stations. For more information, see CRS Report RL33201, Federal and State Quarantine
and Isolation Authority, by Kathleen S. Swendiman and Jennifer K. Elsea.
96 42 U.S.C. § 233(p). See also sections immediately following this section, including 42
U.S.C. §§ 239 et seq.

---

CRS-31
! Liability protection for certain countermeasures: If the Secretary
“makes a determination that a disease or other health condition or
other threat to health constitutes a public health emergency, or that
there is a credible risk that the disease, condition, or threat may in
the future constitute such an emergency, the Secretary may make a
declaration, through publication in the Federal Register,
recommending, under conditions as the Secretary may specify, the
manufacture, testing, development, distribution, administration, or
use of one of more covered countermeasures....” Liability protection
is provided for certain persons with respect to claims resulting from
the administration of covered countermeasures following a
declaration of a public health emergency under this authority.97
! Disaster relief for aging services organizations: The Assistant
Secretary for Aging, in HHS, “may provide reimbursements to any
State (or to any tribal organization receiving a grant under Title VI
[42 U.S.C. §§ 3057 et seq.]), upon application for such
reimbursement, for funds such State makes available to area
agencies on aging in such State (or funds used by such tribal
organization) for the delivery of supportive services (and related
supplies) during any major disaster declared by the President in
accordance with the Robert T. Stafford Disaster Relief and
Emergency Assistance Act.”98
! Authority to expedite research: If the Secretary “determines, after
consultation with the Director of NIH, the Commissioner of the
Food and Drug Administration, or the Director of the Centers for
Disease Control and Prevention, that a disease or disorder
constitutes a public health emergency, the Secretary, acting through
the Director of NIH,” shall expedite certain review procedures for
applications for research grants on diseases relevant to the disease or
disorder involved in the emergency and take other specified
administrative measures to assist relevant grants or contracts. (NIH
is the National Institutes of Health.)99
! Fisheries management: The Secretary of Commerce may take
certain measures relating to the national fishery management
program in case of an emergency. If the emergency is a public
health emergency, then the Secretary of HHS is to “concur” with the
“emergency regulation or interim measure promulgated” by the
Secretary of Commerce.100
! ATSDR assistance for exposure to toxic substances: The
Administrator of the Agency for Toxic Substances and Disease
Registry (ATSDR, an agency within HHS) shall, “in cases of public
97 42 U.S.C. § 247d-6d. Additional information regarding this authority is available in CRS
Report RS22327, Pandemic Flu and Medical Biodefense Countermeasure Liability
Legislation: P.L. 109-148, Division C (2005), by Henry Cohen.
98 42 U.S.C. § 3030.
99 42 U.S.C. § 289c.
100 16 U.S.C. § 1855(c).

---

CRS-32
health emergencies caused or believed to be caused by exposure to
toxic substances, provide medical care and testing to exposed
individuals.”101
! Mosquito-borne diseases: The Secretary has enhanced budget
authority for the response to public health emergencies related to
mosquito-borne diseases as follows: “In the case of any control
programs carried out in response to a mosquito-borne disease that
constitutes a public health emergency, the authorization of
appropriations (in this provision) is in addition to applicable
authorizations of appropriations under the Public Health Security
and Bioterrorism Preparedness and Response Act of 2002.”102
Additional Public Health Emergency Authorities
The following are public health emergency authorities of individuals other than
the HHS Secretary.
! Authority of the Attending Physician to Congress: “The
Attending Physician to Congress shall have the authority and
responsibility for overseeing and coordinating the use of medical
assets in response to a bioterrorism event and other medical
contingencies or public health emergencies occurring within the
Capitol Buildings or the United States Capitol Grounds. This shall
include the authority to enact quarantine and to declare death. These
actions will be carried out in close cooperation and communication
with the Commissioner of Public Health, Chief Medical Examiner,
and other Public Health Officials of the District of Columbia
government.”103
! Crisis counseling assistance and training during a disaster: “The
President is authorized to provide professional counseling services,
including financial assistance to State or local agencies or private
mental health organizations to provide such services or training of
disaster workers, to victims of major disasters in order to relieve
mental health problems caused or aggravated by such major disaster
or its aftermath.”104 This provision in the Stafford Act is
administered by the Substance Abuse and Mental Health Services
Administration in HHS.105
101 42 U.S.C. § 9604.
102 42 U.S.C. § 247b-21.
103 2 U.S.C. § 121g, first authorized in P.L. 108-199, the Consolidated Appropriations Act,
2004.
104 42 U.S.C. § 5183, Section 416 of the Stafford Act.
105 For more information, see CRS Report RL33738, Gulf Coast Hurricanes: Addressing
Survivors’ Mental Health and Substance Abuse Treatment Needs, by Ramya Sundararaman,
Sarah A. Lister, and Erin D. Williams.

---

CRS-33
! Authority of the Secretary of DHS to deploy the Strategic
National Stockpile: “The [DHS] Secretary [Secretary’s
responsibilities] ... shall include ... coordinating other Federal
response resources, including requiring deployment of the Strategic
National Stockpile, in the event of a terrorist attack or major disaster
....”106
! Notification during potential public health emergencies: “In
cases involving, or potentially involving, a public health emergency,
but in which no determination of an emergency by the Secretary of
Health and Human Services under Section 319(a) of the Public
Health Service Act (42 U.S.C. 247d(a)), has been made, all relevant
agencies, including the Department of Homeland Security, the
Department of Justice, and the Federal Bureau of Investigation, shall
keep the Secretary of Health and Human Services and the Director
of the Centers for Disease Control and Prevention fully and currently
informed.”107
Methodology
The above listing of federal public health emergency authorities was developed
by reviewing the results of a search of the U.S. Code for the terms “public health
emergency,” “health threat,” or “disaster,” or for citations to the public health
emergency authority at 42 U.S.C. § 247d. Not included in the listing are references
to the suspension of certain routine activities in the event of a disaster, requirements
for disaster planning in healthcare facilities, or other provisions not directly related
to the declaration or determination of a federal public health emergency or the
activities authorized or required when such a declaration or determination is made.
106 Under current law, both the Secretary of Homeland Security and the Secretary of HHS
have authority to deploy the SNS, as well as certain joint authorities regarding procurement.
The deployment authority of the Secretary of DHS is codified at 6 U.S.C. § 314. The
authority of the Secretary of HHS to deploy the SNS is codified at 42 U.S.C. § 247d-6b, as
are certain procurement authorities provided jointly to the two secretaries.
107 6 U.S.C. § 467, authorized in P.L. 107-296, the Homeland Security Act of 2002.

---