Order Code RL33579
The Public Health and Medical Response
to Disasters: Federal Authority and Funding
Updated September 19, 2007
Sarah A. Lister
Specialist in Public Health and Epidemiology
Domestic Social Policy Division

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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.

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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 . . . . . . . . . . . . . . . . . . . . . . . . . 15
Funding Sources and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The Disaster Relief Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The Public Health Emergency Fund . . . . . . . . . . . . . . . . . . . . . . . . . . 16
The Public Health and Social Services Emergency Fund . . . . . . . . . . 17
Funding the ESF-8 Response to Hurricane Katrina . . . . . . . . . . . . . . . . . . . 18
Federal Assistance for Disaster-Related Healthcare Costs . . . . . . . . . . . . . 19
Existing Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Healthcare Needs of 9/11 Responders . . . . . . . . . . . . . . . . . . . . . . . . . 21
Financing Healthcare Needs Following Hurricane Katrina . . . . . . . . . 22
ESF-8 Funding Needs During a Flu Pandemic . . . . . . . . . . . . . . . . . . 24
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Appendix: Federal Public Health Emergency Authorities . . . . . . . . . . . . . . . . . . 27
Broad Authority in Section 319 of the Public Health Service Act . . . . . . . 27
Other Public Health Emergency Authorities of the HHS Secretary . . . . . . 30
Additional Public Health Emergency Authorities . . . . . . . . . . . . . . . . . . . . 34
Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

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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 or uncompensated 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.

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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:
! RS22602, Public Health and Medical Preparedness and Response:
Issues in the 110th Congress;
! RL33589, The Pandemic and All-Hazards Preparedness Act (P.L.
109-417): Provisions and Changes to Preexisting Law;
! RL33927, Selected Federal Compensation Programs for Physical
Injury or Death;
! RL31719, An Overview of the U.S. Public Health System in the
Context of Emergency Preparedness;
! 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; and
! RL33145, Pandemic Influenza: Domestic Preparedness Efforts.
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
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.”

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relief organizations in alleviating the damage, loss, hardship, or suffering caused
thereby.”4
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
4 42 U.S.C. § 5122(2).
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).

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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
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
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].

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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:
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
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.

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2005.13 The rarity of public health emergency declarations may reflect the wide
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 Plan
is currently undergoing revision.16 It is under the overall coordination of the
Secretary of Homeland Security, and is delegated to the Federal Emergency
Management Agency (FEMA). It sets forth the responsibilities and roles of federal
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, October 31, 2001). Stafford major disaster and
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
August 27, 2006, prior to landfall, which was superceded by a major disaster declaration on
August 29, 2006, the day of landfall. The Secretary of HHS also determined that a public
health emergency existed in Louisiana, effective August 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 (DHS), National Response
Plan, December 2004, at [http://www.dhs.gov/xprepresp/programs/]. The NRP was
mandated in the Homeland Security Act, P.L. 107-296, and superceded the earlier Federal
Response Plan. See also CRS Report RL32803, The National Preparedness System: Issues
in the 109th Congress, by Keith Bea.
16 On September 10, 2007, FEMA posted, with a 30-day public comment period, a draft
“National Response Framework” (NRF) to supercede the NRP. See
[http://www.fema.gov/emergency/nrf/mainindex.htm].

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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. It is to be invoked after the President issues a major
disaster or emergency declaration under authority of the Stafford Act. The NRP is
not a source of new authority for incident response. Also, while it may be used to
guide responses that flow from Stafford Act declarations, it is not a source of funding
to support response activities.
In addition to emergencies that result in Stafford Act declarations, federal
officials implement the NRP during domestic incidents that, among other factors,
satisfy any one of four criteria set out by President Bush in Homeland Security
Presidential Directive (HSPD) - 5.17 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.18
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.19
! 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
17 White House, “Homeland Security Presidential Directive/HSPD-5, Subject: Management
o f D o me s t i c In c i d e n t s , ” p r e s s r e l e a s e , F e b r u a r y 2 8 , 2 0 0 3 , a t
[http://www.whitehouse.gov/news/].
18 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/].
19 See [http://www.pandemicflu.gov/].

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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.20
! 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.21 According to the
20 Assistant Secretary of Defense for Health Affairs William Winkenwerder, Jr.,
“Department of Defense Influenza Pandemic Preparation and Response Health Policy
Guidance,” memorandum to the Joint Services, January 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.
21 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
(continued...)

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Pandemic Implementation Plan, the Secretary of Homeland Security may declare a
pandemic an Incident of National Significance early in the event, perhaps while
foreign countries were affected, but before the disease had reached the United
States.22
There is no relevant precedent regarding 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. 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.23 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,24 and FEMA has issued a Disaster
Assistance Policy regarding major disaster assistance that may be provided in
response to this threat.25
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.
21 (...continued)
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/].
22 Pandemic Implementation Plan, p. 37.
23 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.
24 Pandemic Implementation Plan, Appendix C, “Authorities and References,” p. 212.
25 FEMA, “Emergency Assistance for Human Influenza Pandemic,” Disaster Assistance
Policy 9523.17, March 31, 2007.

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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 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.
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.26 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;
26 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, January 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.

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CRS-11
! 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
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.27 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.28 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
27 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, February 2006, at
[http://www.whitehouse.gov/reports/katrina-lessons-learned/], hereafter called Lessons
Learned.
28 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.

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CRS-12
other man-made disasters.”29 (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....”30 (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.
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.31 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.32 P.L.
109-417, the Pandemic and All-Hazards Preparedness Act, transferred NDMS back
to HHS, effective January 1, 2007.33 (Congress also made this transfer in the Post-
Katrina Act. The transfer was supported by the Administration.34)
29 P.L. 109-295, 120 Stat. 1409.
30 P.L. 109-417, Section 101.
31 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, and
at HHS, [http://www.hhs.gov/aspr/opeo/ndms/index.html].
32 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, February 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, February
2006, at [http://www.whitehouse.gov/reports/katrina-lessons-learned/].
33 See HHS NDMS home page at [http://www.ndms.dhhs.gov/].
34 Office of Management and Budget, “Statement of Administration Policy: H.R. 5441 —
(continued...)

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CRS-13
(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
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.35 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.36 (When the
disaster involves terrorism or other forms of violence, the Department of Justice may
34 (...continued)
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].
35 Further discussion of the difficulties in coordinating body retrieval following Hurricane
Katrina is available in A Failure of Initiative, p. 299.
36 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.

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CRS-14
also become a key federal partner, as was seen following the Oklahoma City
bombing.37)
Responsibility for the health and safety needs of disaster response workers may
not be clearly delegated in the NRP. Though worker health and safety is listed as an
HHS task in ESF-8, the NRP states that HHS may ask the Occupational Safety and
Health Administration (OSHA, an ESF-8 support agency in the Department of Labor)
to implement certain activities in a separate Worker Safety and Health Support
Annex.38 The Annex states that OSHA serves as the federal coordinator for worker
safety and health activities to protect responders — including those employed by
federal, state, local, and tribal governments, and private and nonprofit organizations
— upon activation of ESF-5, Emergency Management, which is led by FEMA. The
Government Accountability Office (GAO) found that OSHA’s efforts during the
response to Hurricane Katrina were hampered by confusion about the agency’s role,
with the following consequences: (1) disagreements between FEMA and OSHA
regarding OSHA’s role delayed FEMA’s authorization of mission assignments to
fund OSHA’s response activities; (2) FEMA did not authorize a mission assignment
to OSHA, or to any other federal agency, to coordinate safety and health activities for
nonfederal workers; (3) confusion about OSHA’s role in a disaster — providing
technical assistance, rather than inspecting work sites — discouraged other officials
from seeking OSHA’s help; and (4) OSHA and HHS did not coordinate to ensure
that federal workers had access to mental health services.39
Finally, the NRP does not clearly delegate federal responsibility for the well-
being of pets during disasters.40 It is well established that some people are reluctant
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.41 Several
states 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
37 The Department of Justice shares leadership responsibilities with DHS for ESF-13, Public
Safety and Security. ESF-13 does not explicitly mention mental health.
3 8 N R P , W o r k e r S a f e t y a n d H e a l t h S u p p o r t A n n e x , a t
[http://www.dhs.gov/xprepresp/programs/].
39 GAO, “Disaster Preparedness: Better Planning Would Improve OSHA’s Efforts to Protect
Workers’ Safety and Health in Disasters,” GAO-07-193, March 28, 2007.
40 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/
onlnews/javma/jun06/060615a.asp].
41 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].

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CRS-15
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
assistance available to states and localities to carry out pet rescue and sheltering
activities in the immediate response to a major disaster.42 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, or an assignment of responsibility in the NRP.
Federal Funding to Support an ESF-8 Response
Hurricane Katrina was 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, health care 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.43 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.
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.
42 P.L. 109-295, §§ 536, 653 and 689.
43 See Government Accountability Office (GAO), “Status of the Health Care System in New
Orleans,” GAO-06-576R, March 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, March 30, 2006.

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CRS-16
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.44
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.45 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.46
Between 1988 and 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.47 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
44 For more information, see CRS Report RL33053, Federal Stafford Act Disaster
Assistance: Presidential Declarations, Eligible Activities, and Funding, by Keith Bea.
45 P.L. 98-49.
46 42 U.S.C. § 247d(b), as amended by P.L. 106-505.
47 P.L. 100-607, § 256(a).

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CRS-17
states affected by Hurricane Katrina in August and September 2005; and (3) in
several states affected by Hurricane Rita in September 2005.48
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 2006.49
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,50 and grants to states for hospital
preparedness, previously administered by the Health Resources and Services
Administration (HRSA, an agency in HHS), and transferred to the HHS Assistant
Secretary for Preparedness and Response in the Pandemic and All-Hazards
Preparedness Act.51
48 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.
49 42 U.S.C. § 300hh-11, as amended by P.L. 107-188.
50 More information on CDC’s budget is available at [http://www.cdc.gov/fmo/
fmofybudget.htm].
51 See HHS, the Hospital Preparedness Program, at [http://www.hhs.gov/aspr/opeo/hpp/
index.html].

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CRS-18
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, 2006.52
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.53 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.54
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.55 According to CDC, funds could be used for alternate activities
within the state, or to support state-to-state mutual aid pursuant to the Emergency
Management Assistance Compact (EMAC).56 States were permitted to redirect funds
52 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.
53 DHS, FEMA, “Disaster Relief Fund (DRF) Report,” Congressional Monthly Report, as
of December 8, 2006.
54 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,” January 25,
2006, at [http://www.hhs.gov/katrina/#hhs].
55 CDC, letter from William P. Nichols, Director, CDC Procurement and Grants Office, to
CDC directors and grants management personnel, regarding “Treatment of Grants under
Emergency Conditions due to Hurricane Katrina,” September 16, 2005, hereafter referred
to as the Nichols letter.
56 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
(continued...)

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CRS-19
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.”57 HRSA also advised state grantees that
some redirection of funds provided by the National Bioterrorism Hospital
Preparedness Program (which HRSA administered at the time) was also permissible
to support the hurricane response.58
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 re-establish 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.59
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
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.60
! 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.
56 (...continued)
Overview, by Keith Bea.
57 Nichols letter.
58 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].
59 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.
60 42 U.S.C. § 5170b (major disaster) and 42 U.S.C. § 5192 (emergency).

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CRS-20
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 $28,200.61
! 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.62
! 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.63 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,64 and expanded federal
support, including personnel, for health centers in disaster-affected
areas.65
61 71 Federal Register 59514, October 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].
62 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.
63 For more information on Public Health Service agencies and their functions, see CRS
Report RL34098, Public Health Service (PHS) Agencies: Background and Funding, Pamela
W. Smith, Coordinator.
64 Ibid.
65 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/].

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! Certain compensation programs may cover some or all healthcare
costs for certain disaster victims, though these programs generally
flow from the individual’s employment status rather than from their
status as disaster victims. Such programs include workers’
compensation programs, for federal workers whose injuries are
related to employment,66 and benefits for federal, state, and local
public safety officers (including police officers and firefighters) who
are killed or permanently disabled while performing their duties.67
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.
Healthcare Needs of 9/11 Responders. Within two weeks of the terrorist
attack on the World Trade Center (WTC) in New York City, Congress established
the September 11th Victim Compensation Fund (VCF).68 The program provided
compensation for physical injury or death, from any cause, that resulted from an
individual’s presence at the sites at the time of the crashes or in their immediate
aftermath.69 The deadline for filing a claim was December 22, 2003.
Thousands of responders worked on the site in a rescue, recovery, and cleanup
operation that lasted more than a year. Many of these workers, and others who lived
in the area, are experiencing, six years later, various respiratory, psychological,
gastrointestinal, and other problems felt to be related to their exposures at the site.70
Physical hazards to which these individuals were potentially exposed include
asbestos and other particulates, heavy metals, volatile organic compounds, and
dioxin.
Congress provided funding to the 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
66 State and private workers’ compensation programs generally provide similar benefits.
67 For more information on these programs, see CRS Report RL33927, Selected Federal
Compensation Programs for Physical Injury or Death, by Sarah A. Lister, Edward
Rappaport, and C. Stephen Redhead.
68 P.L. 107-42, signed into law on September 22, 2001.
69 For more information, see the section on the September 11th Victim Compensation Fund
in CRS Report RL33927, Selected Federal Compensation Programs for Physical Injury or
Death, by Sarah A. Lister, Edward Rappaport, and C. Stephen Redhead, hereinafter referred
to as CRS Report RL33927.
70 See CDC/National Institute for Occupational Safety and Health (NIOSH), “World Trade
Center Response,” at [http://www.cdc.gov/niosh/topics/wtc/].

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period.71 In addition, several medical monitoring programs were established to
develop and deliver initial, and sometimes follow-up, health examinations to groups
of individuals potentially at risk of future illness. 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, some of
whom have died. Congress has provided intermittent appropriations to support the
costs of medical treatment for some of these individuals, through treatment programs
established after the terrorist attack.72
The VCF is not available to assist individuals whose symptoms arose after the
fund’s closing date. Routine sources of healthcare coverage may also elude these
individuals. Some may have lost employer-based health insurance coverage, if they
have become too sick to work. For some with health insurance, the plan may not
cover needed prescription drugs or specialty care, or coverage may be denied if an
insurer asserts that an insured’s illness is work-related and should be covered by
workers’ compensation. Some workers, such as volunteers or immigrants, may lack
workers’ compensation coverage. Others who have this coverage may still find that
employers and insurers contest their claims on the basis that an illness is not work-
related.73
Congressional interest in this issue has focused on matters of short- and long-term
financing and accountability for the registry, monitoring, and treatment programs,
and whether or how financial responsibility for the long-term needs of affected
individuals should be shared, if at all, among the federal government, local
governments, private insurers, and others.
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
71 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].
72 See CRS Report RL33927, section on “World Trade Center Medical Monitoring and
Treatment Program.”
73 See, for example, the House Committee on Energy and Commerce, Subcommittee on
Health, hearing on, “Answering the Call: Medical Monitoring and Treatment of 9/11 Health
Effects,” September 18, 2007, 110th Cong., 1st Sess., Washington, DC.

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a variety of health and public health needs.74 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 are in effect,
concurrently, a Stafford Act declaration by the President, and a determination of
public health emergency by the Secretary of HHS.75 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
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.76 Congress provided up to $2
billion for these activities.77 This was in addition to $100 million earlier provided in
supplemental appropriations to NDMS to cover expenses related to the response to
Hurricane Katrina.78 (Through an interagency agreement, most of the $100 million
was transferred from FEMA to the HHS Centers for Medicare and Medicaid Services
74 HHS, Centers for Medicare and Medicaid Services (CMS), “Summary of Federal
Payments Available for Providing Health Care Services to Hurricane Evacuees and
R e b u i l d i n g H e a l t h C a r e I n f r a s t r u c t u r e , ” J a n u a r y 2 5 , 2 0 0 6 , a t
[http://www.hhs.gov/katrina/#hhs].
75 42 U.S.C. § 1320b-5, enacted in P.L. 107-188.
76 Section 6201 of P.L. 109-171, the Deficit Reduction Act of 2005, enacted February 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 September 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, January 13, 2003.)
77 See GAO, “Hurricane Katrina: Allocation and Use of $2 Billion for Medicaid and Other
Health Care Needs,” GAO-07-67, February 28, 2007.
78 P.L. 109-62, 119 Stat. 1991, September 8, 2005.

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(CMS), which is also administering the $2 billion amount.79) 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.80
Individuals, healthcare institutions, providers, and others affected by Hurricane
Katrina continue to face challenges that are beyond the scope of the nation’s disaster
assistance mechanisms. The Louisiana Health Care Redesign Collaborative was
established in 2006 to develop a blueprint for a healthcare system that would
integrate Gulf Coast and greater New Orleans rebuilding into a broader statewide
plan.81 A key funding strategy for the Collaborative is the development and approval
by CMS of a comprehensive Medicaid waiver and Medicare demonstration
proposal.82
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
about 47 million Americans currently 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
79 HHS, Centers for Medicare and Medicaid Services, Justification of Estimates for
Appropriations Committees, FY2007, p. 192.
80 HHS, “HHS Participation in the Recovery of the Gulf Coast,” at [http://www.hhs.gov/
louisianahealth/background/].
8 1 L o u i s i a n a H e a l t h C a r e R e d e s i g n C o l l a b o r a t i v e , a t
[http://www.dhh.state.la.us/offices/?ID=288].
82 Ibid. See also the House Committee on Energy and Commerce, Subcommittee on
Oversight and Investigations, hearing on “Post Katrina Health Care: Progress and
Continuing Concerns — Part II,” August 1, 2007, 110th Cong., 1st Sess., Washington, DC.

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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 these unanticipated events.
In contrast, the President, acting pursuant to the Stafford Act 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, some of these threats (e.g.,
bioterrorism) may not trigger Stafford Act major disaster assistance.
When Stafford Act major disaster assistance is available, as it was following
Hurricane Katrina, it can be invaluable in supporting public health response 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
or uncompensated costs of health care for 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 or
uncompensated healthcare costs that disaster victims, institutions, and providers may
face.
In a typical year, there are dozens of Stafford Act 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 costs of health care for disaster
victims should be borne by the federal government. 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

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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 is not consensus that the costs of health care for disaster victims
should be borne by the federal government, there has nonetheless been considerable
discussion about the needs of victims of the terrorist attack of September 11, 2001,
and whether terrorism should place upon the federal government a different
responsibility for its victims than for victims of non-terrorist disasters.

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Appendix:
Federal Public Health Emergency Authorities83
Broad Authority in Section 319
of the Public Health Service Act
The Secretary of HHS84 has broad authority to determine that a public health
emergency exists. Congress reauthorized this authority in 2000, 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).”85
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 2000, Congress reauthorized a no-year public health emergency fund that
is available to the HHS Secretary for use 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
the Committee on Health, Education, Labor, and Pensions and the
Committee on Appropriations of the Senate and the Committee on
83 Kathleen S. Swendiman, legislative attorney in the American Law Division of CRS,
contributed to this section. Federal law contains numerous authorities relating to instances
of public health emergency. In some cases the term “public health emergency” is defined
in statute, 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.
84 In this appendix, unless otherwise stated, “the Secretary” refers to the Secretary of HHS.
85 42 U.S.C. § 247d, as amended by P.L. 106-505, the Public Health Improvement Act.

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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.”86
Subsequent to the 2000 reauthorization, 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.”87
! 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.”88
! 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,
86 42 U.S.C. § 247d, as amended by P.L. 106-505. This fund has not received a recent
appropriation.
87 42 U.S.C. § 247d, as amended by P.L. 107-188, the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002.
88 Ibid.

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the Department of Justice, and the Federal Bureau of Investigation,
fully and currently informed.”89
! 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.”90 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 et seq.) or the Stafford Act (42
U.S.C. § 5121 et seq.).91 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;92 (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 healthcare items and services
furnished to individuals enrolled in a Medicare + Choice plan; and
(7) sanctions and penalties that arise from noncompliance with
89 6 U.S.C. § 467, authorized in P.L. 107-296, the Homeland Security Act of 2002.
90 21 U.S.C. § 360bbb-3, authorized in P.L. 108-276, the Project BioShield Act of 2004.
91 42 U.S.C. § 1320b-5, as amended by P.L. 107-188, P.L. 108-276, and P.L. 109-417.
92 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.

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certain patient 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.93
! Deployment of the Public Health Service Commissioned Corps:
The Secretary may deploy officers in the Commissioned Corps of
the U.S. Public Health Service to respond to an “urgent or
emergency public health care need,” as determined by the Secretary,
arising as the result of (1) a national emergency declared by the
President under the National Emergencies Act (50 U.S.C. § 1601 et
seq.); (2) an emergency or major disaster declared by the President
under the Stafford Act (42 U.S.C. § 5121 et seq.); (3) a public health
emergency declared by the Secretary pursuant to 42 U.S.C. § 247d;
or (4) any emergency that, in the judgment of the Secretary, is
appropriate for the deployment of members of the Corps.94
Pursuant to the authority in Section 319, the Secretary of HHS has determined
that a public health emergency exists on three recent 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, 2005.95
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
93 42 U.S.C. § 1395w-3a(e), authorized in P.L. 108-173, the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003.
94 42 U.S.C. § 204a, as amended by P.L. 109-417, the Pandemic and All-Hazards
Preparedness Act.
95 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.

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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.”96 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.
! 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.”97
! 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).98
! 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
96 42 U.S.C. § 243c.
97 42 U.S.C. § 300hh-1, as established in P.L. 109-417.
98 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.

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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.”99
! 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).100
! Authority for the Strategic National Stockpile: “The Secretary,
in coordination with the Secretary of Homeland Security, shall
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.”101
! 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.”102 “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
99 7 U.S.C. § 8401, as amended by P.L. 107-188.
100 42 U.S.C. § 300hh-11, as amended by P.L. 107-188.
101 42 U.S.C. § 247d-6b, as amended by P.L. 108-276, the Project BioShield Act of 2004.
102 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/].

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likely to cause a public health emergency if transmitted to other
individuals.”103
! 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.104
! 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.105
! 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.”106
! 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
103 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.
104 42 U.S.C. § 233(p). See also sections immediately following this section, including 42
U.S.C. §§ 239 et seq.
105 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.
106 42 U.S.C. § 3030.

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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.)107
! 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.108
! 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
health emergencies caused or believed to be caused by exposure to
toxic substances, provide medical care and testing to exposed
individuals.”109
! 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.”110
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,
107 42 U.S.C. § 289c.
108 16 U.S.C. § 1855(c).
109 42 U.S.C. § 9604.
110 42 U.S.C. § 247b-21.

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and other Public Health Officials of the District of Columbia
government.”111
! Health and medical monitoring following a disaster: The
President, acting through the Secretary of HHS, is authorized to
carry out a program for the coordination, protection, assessment,
monitoring, and study of the health and safety of individuals
(including but not limited to responders) who may have had
hazardous exposures as a result of a disaster declared pursuant to the
Stafford Act (42 U.S.C. § 5121 et seq.). If the President carries out
such a program, it must be commenced in a timely manner to ensure
the highest level of public health protection and effective
monitoring.112
! 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.”113 This provision in the Stafford Act is
administered by the Substance Abuse and Mental Health Services
Administration in HHS.114
! 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
....”115
! Authority of the Secretary of Veterans Affairs to provide care:
The Secretary of Veterans Affairs is authorized to furnish hospital
care and medical services to individuals, including non-veterans,
affected by (1) a major disaster or emergency declared by the
President under Stafford Act (42 U.S.C. § 5121 et seq.) or (2) a
disaster or emergency in which NDMS is activated.116
111 2 U.S.C. § 121g, first authorized in P.L. 108-199, the Consolidated Appropriations Act,
2004.
112 42 U.S.C. § 300hh-14, as amended by P.L. 109-347, the SAFE Port Act.
113 42 U.S.C. § 5183, Section 416 of the Stafford Act.
114 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.
115 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.
116 38 U.S.C. § 1785, as established in P.L. 107-287, the Department of Veterans Affairs
(continued...)

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! 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.”117
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.
116 (...continued)
Emergency Preparedness Act of 2002. Activation of NDMS may be done at the discretion
of the Secretary of HHS, and does not require any type of federal emergency or disaster
declaration.
117 6 U.S.C. § 467, authorized in P.L. 107-296, the Homeland Security Act of 2002.

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