Order Code RL33579
The Public Health and Medical Response
to Disasters: Federal Authority and Funding
Updated June 23, 2008
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 there is a catastrophe in the United States, state and local governments
are principally responsible for response activities, and state and local legal authorities
are the principal means to support these activities. 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. At this time, 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 that result in overwhelming public health and medical
needs. These concerns include the delegation of responsibilities among different
federal departments, and whether critical conflicts or gaps exist in these relationships.
In particular, there are some concerns about federal leadership and delegations of
responsibility as laid out in the recently published National Response Framework
(NRF).
There is no federal assistance program designed purposely to cover the
uninsured or uncompensated costs of individual health care that may be needed as a
consequence of a disaster, nor is there consensus that this should be a federal
responsibility. However, following Hurricane Katrina, Congress provided short-term
assistance to host states, through the Medicaid program, to cover the uninsured health
care needs of eligible Katrina evacuees. Some have proposed establishing a
mechanism to cover certain uninsured health care costs of responders and others who
are having health problems related to exposures at the World Trade Center site in
New York City following the 2001 terrorist attack.
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. This report will be updated as needed.

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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 . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Intersection of Stafford Act and Public Health Emergency Authority . 7
Federal Coordinating Mechanisms for Disaster Response . . . . . . . . . . . . . . 7
National Response Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
National Response to an Influenza Pandemic . . . . . . . . . . . . . . . . . . . . 8
Would the Stafford Act Apply in a Flu Pandemic? . . . . . . . . . . . . . . . . . . . . 9
NRF Emergency Support Function 8: Roles and Challenges . . . . . . . . . . . . . . . 11
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 Health Care Costs . . . . . . . . . . . . 19
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Existing Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Health Care Needs of 9/11 Responders . . . . . . . . . . . . . . . . . . . . . . . . 22
Financing Health Care Needs Following Hurricane Katrina . . . . . . . . 23
ESF-8 Funding Needs During a Flu Pandemic . . . . . . . . . . . . . . . . . . 25
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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
When there is a catastrophe in the United States, state and local governments
are principally responsible for response activities, and state and local legal authorities
are the principal means to support these activities. 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
Recent incidents — in particular the September 11 and anthrax attacks of 2001,
and several Gulf Coast hurricanes in 2005 — have shown the limitations of existing
funding mechanisms in supporting public health and medical incident 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 influenza, or “flu”). Second, the Secretary of Health and Human
Services (HHS) has authority to draw upon a special fund to support 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
health care 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
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, and CRS Report
RL34146, FEMA’s Disaster Declaration Process: A Primer, by Francis X. McCarthy.

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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. This report will be updated as needed.
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;
! RL33145, Pandemic Influenza: Domestic Preparedness Efforts; and
! RL34190, Pandemic Influenza: An Analysis of State Preparedness
and Response Plans.
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
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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the efforts and available resources of States, local governments, and disaster
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 a flu
pandemic or other public 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
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.”

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and capabilities to save lives and to protect property and public health and safety,
or to lessen or avert the threat of a catastrophe in any part of the United States.8
The statutory provisions concerning the procedures by which an emergency
declaration will be considered by the President, like those for a major disaster, also
contain requirements pertaining to need and action. However, as 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 specifically to a public health threat. In the fall of
2000, President Clinton issued emergency declarations for New York and New Jersey
to help the states contain the threatened spread of the West Nile virus.10
8 42 U.S.C. § 5122(1).
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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Public Health Emergency Authorities. State and local governments,
rather than the federal government, are the seats of responsibility and authority for
public health activities, both in general, and in response to public health and medical
emergencies. As with catastrophes in general, the federal government may provide
various forms of assistance to state and local governments, non-profit entities,
families, and others, in response to public health threats. Section 319 of the Public
Health Service Act grants the Secretary of HHS broad authority to determine that a
public health emergency exists. Pursuant to such a determination, the Secretary may
waive certain administrative requirements, provide additional forms of assistance,
and take certain other actions to expand federal aid to state and local governments,
not-for-profit entities, and others. The Secretary’s statutory authority to determine
a public health emergency is as follows:
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 declaration
pursuant to the Stafford Act and/or the National Emergencies Act,12 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) often involves extensions of
routine program activities, such as technical assistance for epidemiologic and
laboratory investigation, workforce assistance, or the provision of special drugs or
tests.
In response to public health threats, the Secretary of HHS can provide a
considerable degree of assistance to states, upon their request, through the Secretary’s
standing (i.e., non-emergency) authorities. There is neither a defined threshold, nor
a 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
11 42 U.S.C. § 247d(a).
12 For more information regarding the National Emergencies Act, see CRS Report 98-505,
National Emergency Powers, by Harold C. Relyea.

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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.13
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 four
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 (including states that were directly affected, and a number of states
that hosted evacuees); (3) in Texas and Louisiana, affected by Hurricane Rita in
September 2005; and (4) in Iowa and Indiana, as a result of severe flooding in June
2008.14
Two factors may explain the rarity of public health emergency determinations.
First, the Secretary of HHS has standing (non-emergency) authority to render many
forms of aid to state and local governments and others, without the need to meet a
defined threshold of need or impact. Also, although making such a determination
authorizes the Secretary to draw from a Public Health Emergency Fund (PHEF), the
fund has not had a balance in it for many years.15 Consequently, none of the
determinations issued since 2000 had the effect of mobilizing any additional funds
beyond those that would otherwise have been available. It is possible that if funds
were available to the Secretary in the PHEF, it could influence his decision to make
a public health emergency determination, or the pressures put upon him to do so.16
Given that, the Congress may consider whether the degree of discretion afforded to
the HHS Secretary in making such a determination, and the accompanying reporting
requirements, are appropriate.
Although the Secretary of HHS does not, at this time, have access to additional
funding if he makes a public health emergency determination, the authority appears
to have be useful, nonetheless, in addressing the widespread evacuations that resulted
from Hurricanes Katrina and Rita in 2005, and the Midwest floods in 2008. When
a public health emergency determination is made, the Secretary has authority to
13 42 U.S.C. § 243c.
14 The 2001 determination applied to the September 11 attacks, and not to the subsequent
anthrax attack (66 Federal Register 54998, October 31, 2001). More information about the
2005 hurricane determinations is available in CRS Report RL33096, 2005 Gulf Coast
Hurricanes: The Public Health and Medical Response, by Sarah A. Lister. More
information about the 2008 flood determinations is available on the website of the HHS
Centers for Medicare and Medicaid Services (CMS), at [http://www.cms.hhs.gov/
emergency/20_midwestflooding.asp]. Stafford major disaster and emergency declarations
may be found on FEMA’s website at [http://www.fema.gov/hazard/index.shtm].
15 See the subsequent section “Federal Funding to Support an ESF-8 Response.”
16 FEMA’s administration of the Disaster Relief Fund (DRF), which supports the response
to Stafford Act emergency and major disaster declarations, may offer an instructive
comparison. The DRF is discussed further in a subsequent section of this report. See also
CRS Report RL34146, FEMA’s Disaster Declaration Process: A Primer, by Francis X.
McCarthy.

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waive a number of requirements that typically apply to health care providers as a
condition of their receipt of federal reimbursement (through the Medicare program,
for example.) Among other things, these waivers allow beneficiaries to receive
services despite having lost their documentation of eligibility, and providers to
provide services in alternate temporary facilities.17
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, as mentioned above — requires a simultaneous public health
emergency determination, and a declaration pursuant to either the Stafford Act or the
National Emergencies Act. However, when multiple declarations are in effect as a
result of a specific incident, as they were following Hurricane Katrina, it poses a
greater challenge for officials in understanding the scope and interaction of their
response authorities.18
Federal Coordinating Mechanisms for Disaster Response
National Response Framework. 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.19 In January
2008, the NRP was replaced by the National Response Framework (NRF),20
following a lengthy stakeholder engagement intended, among other things, to capture
lessons learned from the flawed response to Hurricane Katrina. The NRF is under
the overall coordination of the Secretary of Homeland Security, and its
implementation is delegated to FEMA. The NRF sets forth the responsibilities and
roles of federal agencies; identifies tasks to be performed by specified federal
officials; and includes annexes with details on support resources and mechanisms
that are integral to its implementation. It is not a source of new authority for incident
17 Applicable waiver authorities are described in “Waiver of certain requirements” in the
Appendix. For more information about waivers applied in response to the Midwest floods
of 2008, see HHS, “HHS Takes Action to Help Medicare Beneficiaries and Providers in
Iowa and Indiana,” press release, June 16, 2008.
18 For example, as Hurricane Katrina approached, Louisiana received an emergency
declaration on August 27, 2006, prior to landfall. This 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 were not themselves subject to major disaster declarations.
19 6 U.S.C. § 312(6). Department of Homeland Security (DHS), National Response Plan,
December 2004. The NRP was mandated in the Homeland Security Act, P.L. 107-296, and
superceded the earlier Federal Response Plan.
20 DHS, National Response Framework, (NRF) January 2008, hereinafter referred to as
NRF, at [http://www.fema.gov/emergency/nrf/].

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response. While it may be used to guide response activities that flow from Stafford
Act declarations, it is not a source of funding for these activities.21 It is applicable
to incidents whether or not they have led to a Stafford Act declaration.22 Finally, it
is intended to be a national coordinating blueprint, laying out and integrating roles
for state, local, territorial and tribal governments, and the private sector, in addition
to federal agencies.
National Response to an Influenza Pandemic. In addition to the NRF,
which guides a coordinated national all-hazards response (i.e., to a variety of
catastrophes), numerous federal and other planning documents that are specific for
a flu 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.23
! 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.
! 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.
! The HHS Pandemic Influenza Plan, November 2005: provides
guidance to national, state and local policy makers and health
departments, outlining key roles and responsibilities during a
pandemic and specifying preparedness needs and opportunities.
This plan emphasizes specific preparedness efforts in the public
health and health care sectors.
! Department of Defense Implementation Plan for Pandemic
Influenza, August 2006: provides policy and guidance for the
following priorities: (1) force health protection and readiness; (2) the
continuity of essential functions and services; (3) Defense support
to civil authorities (i.e., federal, state, and local governments); (4)
effective communications; and (5) support to international partners.
21 See the subsequent section on “The Disaster Relief Fund” for an explanation of how
activities authorized by the Stafford Act may be funded.
22 Implementation of the NRF represents a departure from the earlier NRP, which required
certain triggers. In contrast, the NRF “is always in effect, and elements can be implemented
at any level at any time.” (NRF, p. 7) As a result, while the NRF serves as the blueprint for
coordinated national response actions following Stafford Act declarations, such declarations
are not required in order for the NRF to be in effect. Consequently, the NRF serves also to
guide and coordinate homeland security activities during special events such as the Super
Bowl and political conventions.
23 See [http://www.pandemicflu.gov/].

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! VA Pandemic Influenza Plan, March 2006: provides policy and
instructions for Department of Veterans Affairs (VA) in protecting
its staff and the veterans it serves, maintaining operations,
cooperating with other organizations, and communicating with
stakeholders.
! 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.24
Would the Stafford Act Apply in a Flu Pandemic?
Each of the pandemic influenza plans listed above was written with the premise
that the NRP would have been applicable to guide a coordinated federal response to
a flu pandemic. The NRF, which was published subsequently, similarly notes that
it could serve as the blueprint for a coordinated national response to this incident.25
As noted earlier, the NRF serves as a coordinating mechanism, but it does not
confer any additional executive authorities, or serve as a source of funding for
response activities. When a Stafford Act emergency or major disaster is declared, the
Disaster Relief Fund may be used to pay for authorized response activities and
assistance.26 There is precedent for a Stafford emergency declaration in response to
an infectious disease threat: as noted earlier, emergency declarations pursuant to the
Stafford Act were made in response to West Nile virus in 2000. However, there is
no relevant precedent regarding whether Stafford Act major disaster assistance could
be provided in response to a flu pandemic. 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.27 However, the
Administration’s view is that the President’s authority to declare a major disaster
pursuant to the Stafford Act could be applied to a flu pandemic,28 and FEMA has
24 For more information, see CRS Report RL34190, Pandemic Influenza: An Analysis of
State Preparedness and Response Plans, by Sarah A. Lister and Holly Stockdale.
25 NRF, p. 73.
26 See the subsequent section on “The Disaster Relief Fund” for an explanation of how
activities authorized by the Stafford Act may be funded.
27 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.
28 Pandemic Implementation Plan, Appendix C, “Authorities and References,” p. 212.

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CRS-10
issued a Disaster Assistance Policy regarding major disaster assistance that may be
provided in response to this threat.29
The matter of the applicability of a Stafford major disaster declaration to a flu
pandemic is important for two reasons. First, the level of funding that may be
available to support federal activities, and provide assistance to state and local
governments and individuals, is substantially greater following a major disaster
declaration than it is for an emergency declaration.30 Second, the federal leadership
structure for incident response may be different depending on whether the incident
results in a Stafford Act declaration, or is a “non-Stafford” incident. The Stafford
Act requires the President, upon making an emergency or major disaster declaration,
to appoint a Federal Coordinating Officer (FCO) to operate in the affected region.31
This individual has historically reported to the head of FEMA, who in turn reports
to the President and assumes overall operational control of the federal government’s
incident response. The NRF, and the NRP before it, established the role of Principal
Federal Official (PFO), a different individual who reports directly to the Secretary of
Homeland Security during an incident response. Confusion about the respective
roles and authorities of these individuals was identified following Hurricane Katrina,
and has remained a matter of concern to Congress.32 It is reported that in December
2006, the Secretary of Homeland Security predesignated, in the event of a response
to a flu pandemic, one national and five regional FCOs, and one national and five
regional PFOs.33 The respective roles of these individuals — all of whom would
presumably be involved in response activities if a Stafford Act declaration were made
— have not been clarified in any publicly available pandemic planning document.34
29 FEMA, “Emergency Assistance for Human Influenza Pandemic,” Disaster Assistance
Policy 9523.17, March 31, 2007, at [http://www.fema.gov/pdf/government/grant/pa/
policy.pdf].
30 Even so, the types of activities for which assistance is authorized pursuant to a Stafford
major disaster declaration are not necessarily well aligned to the types of activities that
would be needed during a pandemic response, or during an incident with a substantial public
health and medical response component in general. This is discussed further in a subsequent
section on “Federal Funding to Support an ESF-8 Response.”
31 42 U.S.C. § 5143.
32 In FY2008 appropriations for DHS, Congress prohibited the use of appropriated funds for
“any position designated as a Principal Federal Official” for any disasters or emergencies
declared pursuant to the Stafford Act. P.L. 110-161, the Consolidated Appropriations Act,
2008, § 541, 121 Stat. 2079, December 26, 2007. See also, DHS Office of Inspector
General, “FEMA’s Preparedness for the Next Catastrophic Disaster,” OIG-08-34, March
2008, at [http://www.dhs.gov/xoig/].
33 See Government Accountability Office (GAO), “Influenza Pandemic: Further Efforts Are
Needed to Ensure Clearer Federal Leadership Roles and an Effective National Strategy,”
GAO-07-781, p. 18, August 14, 2007.
34 Ibid. GAO reported that DHS was developing a “Federal Concept Plan for Pandemic
Influenza,” which would clarify these roles, but such plan has not been published.

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CRS-11
NRF Emergency Support Function 8:
Roles and Challenges
Overview
The Hurricane Katrina response, and planning for a flu pandemic, each
demonstrate the scope of public health and medical activities needed in response to
a large-scale catastrophe. A flu pandemic would not likely impose the mass
dislocations and destruction of health care 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.
A successful public health response involves such things as monitoring and
assurance of the safety of food and water, prevention of injury, control of infectious
diseases, and a host of other activities, and is carried out by a variety of entities,
primarily government and not-for-profit agencies. A successful medical response is
perhaps more complicated, 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 health care 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 health care
financing mechanism.
According to the NRF (and the earlier NRP), the Secretary of HHS is tasked
with coordinating Emergency Support Function 8 (ESF-8), the public health and
medical response to incidents.35 (ESF-8 is one of 15 ESFs in the NRF. Other
functions include public safety, energy supplies, and transportation, for example.)
ESFs are coordinating mechanisms, not funding mechanisms. The response to a flu
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.
35 NRF, Annex ESF #8, at [http://www.fema.gov/emergency/nrf/]. 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
HHS Assistant Secretary for Preparedness and Response (ASPR, 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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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/medical/veterinary equipment and supplies;
! patient evacuation;
! patient care;
! safety and security of human and veterinary drugs and medical
devices, and human biologics;36
! blood and blood products;
! food safety and security;
! agriculture safety and security;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;
! mass fatality management, victim identification and decontaminating
remains; and
! veterinary medical support.
Depending on the incident, HHS may need other agencies to carry out certain
of their ESF activities (e.g., public safety, road clearing, and power restoration)
before some ESF-8 activities could begin. Some specific concerns resulting from
overlaps or gaps in defined ESF duties are discussed below.
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. The NRF has addressed some of these concerns, left
others unclear, and possibly raised some new concerns.
Some had questioned whether the NRP clearly defined 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.37 Others were
concerned that the respective roles were insufficiently clear to guide a coordinated
response to a flu pandemic. In October 2006, the President signed P.L. 109-295, the
36 These are products regulated by HHS’s Food and Drug Administration (FDA).
37 See U.S. Senate, Committee on Homeland Security and Governmental Affairs, Hurricane
Katrina: A Nation Still Unprepared, chap. 24, p. 28ff, May 2006, 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/].

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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.38 Among other things, the law also codified the
position of Chief Medical Officer (CMO) at DHS, the individual who coordinates all
departmental activities regarding medical and public health aspects of disasters. The
Post-Katrina Act provided that the CMO “shall have the primary responsibility within
the Department for medical issues related to natural disasters, acts of terrorism, and
other man-made disasters.”39 (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....”40 (Emphasis added.) The
Government Accountability Office (GAO) has recommended, in the context of
pandemic flu planning, that the two departments (DHS and HHS) conduct rigorous
testing, training and exercises to ensure that these roles are clearly defined.41
Responsibility for the health and safety of disaster response workers was a
matter of concern in the NRP, and remains so in the NRF. 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. GAO noted
in particular that disagreements between FEMA and OSHA regarding OSHA’s role
delayed FEMA’s authorization of mission assignments to fund OSHA’s response
activities.42 Some Members of Congress and others sought to have worker health and
safety elevated to an Emergency Support Function in the NRF, which would give
OSHA more autonomy in commencing its response activities.43 Instead, the NRF
contains a revised Worker Safety and Health Support Annex.44
Although both the NRP and the NRF address mass fatality management, the
NRP did not, and the NRF 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.
38 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.
39 P.L. 109-295, 120 Stat. 1409.
40 P.L. 109-417, § 101.
41 GAO, “Influenza Pandemic: Further Efforts Are Needed to Ensure Clearer Federal
Leadership Roles and an Effective National Strategy,” GAO-07-781, August 14, 2007.
42 GAO, “Disaster Preparedness: Better Planning Would Improve OSHA’s Efforts to Protect
Workers’ Safety and Health in Disasters,” GAO-07-193, March 28, 2007.
43 Katherine Torres, “DHS Denies OSHA Power to Invoke Emergency Response Plan,
Official Says,” Occupational Hazards, vol. 70, March 1, 2008; and Anon., “Despite
Lawmakers’ Concerns, OSHA’s Role in NRF Remains Unchanged,” Inside OSHA, vol. 15,
February 4, 2008.
44 NRF, ESF-8 Annex and Worker Safety and Health Support Annex, at
[http://www.fema.gov/emergency/nrf/].

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CRS-14
Federal Disaster Mortuary Assistance Teams (DMORTs) comprise medical
examiners, pathologists, dental technicians and other medical personnel.45 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 U.S. Coast Guard, are trained to work safely in such dangerous
conditions, but their mission is to rescue the living, not recover the dead.46 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, 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. The revised ESF-6 and ESF-8 annexes accompanying the NRF provide
substantially more detail regarding the coordination of these functions than did the
corresponding NRP annexes. Also, this problem was reportedly considered by
FEMA, HHS, and the American Red Cross in their reviews of the hurricane response,
and in their subsequent preparedness planning.
In the NRF, as with 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.47 (When the disaster
involves terrorism or other forms of violence, the Department of Justice may also
become a key federal partner, as was seen following the Oklahoma City bombing.48)
Finally, the NRF resolves a gap in the NRP regarding federal responsibility for
pets during disasters. 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. Hence, the absence of coordinated mechanisms to assure the safety
of pets in disasters may jeopardize human safety as well. In the Post-Katrina Act,
45 DMORTs are a component of the National Disaster Medical System (NDMS), which
comprises teams of medical professionals who are pretrained, and are “federalized” to
deploy and provide medical services in the immediate aftermath of a disaster before other
federal assets arrive. NDMS is administered by the HHS ASPR. For more information, see
[http://www.hhs.gov/aspr/opeo/ndms/index.html].
46 Further discussion of the difficulties in coordinating body retrieval following Hurricane
Katrina is available in A Failure of Initiative, p. 299.
47 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.
48 The Department of Justice shares leadership responsibilities with DHS for ESF-13, Public
Safety and Security. ESF-13 does not explicitly mention mental health.

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CRS-15
Congress required DHS, in developing standards for state and local emergency plans,
to account for the needs of individuals with household pets and service animals
before, during, and after a major disaster or emergency, in particular with regard to
evacuation planning and planning for the needs of individuals with disabilities. In
addition, the act authorized the President to make Stafford Act assistance available
to states and localities to carry out pet rescue and sheltering activities in the
immediate response to a major disaster.49 Congress passed similar provisions in P.L.
109-308, the Pets Evacuation and Transportation Standards Act of 2006, though
neither act addressed the matter of federal leadership for the needs of pets in
disasters. The NRF, however, clearly assigns this responsibility under ESF-6 (Mass
Care) and ESF-11 (Agriculture and Natural Resources). FEMA, when coordinating
federal efforts to provide human sheltering services per ESF-6, is to ensure that the
needs of pets can also be accommodated (various approaches to this are often
referred to as “co-sheltering”), while USDA’s Animal and Plant Health Inspection
Service, per ESF-11, is to ensure that the sheltering needs of the pets are met.
Federal Funding to Support an ESF-8 Response
Hurricane Katrina was the greatest test of ESF-8 since the establishment 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,
health care 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 health care costs.
Some other costs, such as the costs of rebuilding the devastated health care
infrastructure in New Orleans, have not been fully met at this time, either through
existing assistance mechanisms or mechanisms developed since the storm.50 The
response to Hurricane Katrina, and ongoing pandemic preparedness efforts, each
offer a glimpse of the complexity of the challenge, and the adequacy of existing
mechanisms to fund the costs of an ESF-8 response.
Funding Sources and Authorities
The Disaster Relief Fund. Activities undertaken pursuant to 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
49 P.L. 109-295, §§ 536, 653 and 689.
50 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
assignments from FEMA to provide assistance pursuant to the NRF, 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.
However, the DRF is not generally available to pay or reimburse the costs of health
care for affected individuals, though it may pay such costs to a limited extent. (See
“Federal Assistance for Disaster-Related Health care 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.51
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.52 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.53
Between 1988 and 2000, the fund was authorized for annual appropriations
sufficient to have a balance of $45 million at the beginning of each fiscal year.54
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
51 For more information, see CRS Report RL33053, Federal Stafford Act Disaster
Assistance: Presidential Declarations, Eligible Activities, and Funding, by Keith Bea.
52 P.L. 98-49.
53 42 U.S.C. § 247d(b), as amended by P.L. 106-505.
54 P.L. 100-607, § 256(a).

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authority in 42 U.S.C. § 247d(a) in 2000. As a consequence, the fund was not
available for the response to four public health emergency determinations made
subsequently: (1) nationwide, in response to the terrorist attacks on September 11,
2001; (2) in several states affected by Hurricane Katrina in August and September
2005 (including states that were directly affected, and a number of states that hosted
evacuees); (3) in Texas and Louisiana, affected by Hurricane Rita in September
2005; and (4) in Iowa and Indiana, as a result of severe flooding in June 2008.55
In 2002, Congress reauthorized the National Disaster Medical System (NDMS)
in language suggesting that the emergency fund could be used to support additional
activities of the HHS Secretary, including NDMS deployments, 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 2006.56
Depending on the availability of 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 grants 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
55 The 2001 determination applied to the September 11 attacks, and not to the subsequent
anthrax attack (66 Federal Register 54998, October 31, 2001). More information about the
2005 hurricane determinations is available in CRS Report RL33096, 2005 Gulf Coast
Hurricanes: The Public Health and Medical Response, by Sarah A. Lister. More
information about the 2008 flood determinations is available on the website of the HHS
Centers for Medicare and Medicaid Services (CMS), at [http://www.cms.hhs.gov/
emergency/20_midwestflooding.asp]. Stafford major disaster and emergency declarations
may be found on FEMA’s website at [http://www.fema.gov/hazard/index.shtm].
56 42 U.S.C. § 300hh-11, as amended by P.L. 107-188. Pursuant to P.L. 109-417, the HHS
Assistant Secretary for Public Health Emergency Preparedness is now designated as the
HHS Assistant Secretary for Preparedness and Response (ASPR).

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CRS-18
Public Health Preparedness” budget line,57 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 (ASPR) in the Pandemic and All-Hazards
Preparedness Act.58
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, 2006.59
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, for the responses to Hurricanes
Katrina, Rita and Wilma.60 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.61
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
57 More information on CDC’s budget is available at [http://www.cdc.gov/fmo/
fmofybudget.htm].
58 See HHS, the Hospital Preparedness Program, at [http://www.hhs.gov/aspr/opeo/hpp/
index.html].
59 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.
60 DHS, FEMA, “Disaster Relief Fund (DRF) Report,” Congressional Monthly Report, as
of June 1, 2008.
61 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].

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CRS-19
efforts as needed.62 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).63 States were permitted to redirect funds
from the following federal grant programs: infectious diseases (including
immunization, sexually transmitted disease prevention, tuberculosis, West Nile virus,
hepatitis, HIV, emerging infections and laboratory programs); environmental health;
injury prevention; and, terrorism and emergency preparedness. CDC noted at the
time that “No supplemental appropriations have been provided to CDC for Katrina
relief, so any existing CDC funds used for relief will reduce the overall amount
available to work non-relief grant issues.”64 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.65
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.66
Federal Assistance for Disaster-Related Health Care Costs
Overview. When Stafford major disaster assistance is available, as it was
following Hurricane Katrina, it can be invaluable in supporting public health
response activities under ESF-8. Typically, these activities are inherently
governmental, and are generally reimbursable from the DRF. But even when a
Stafford major disaster declaration applies, it does little to meet the uninsured or
uncompensated costs of health care for disaster victims, or to reimburse institutions
62 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.
63 The Emergency Management Assistance Compact is a congressionally approved interstate
mutual aid agreement that provides a legal structure by which states affected by a
catastrophe may request emergency assistance from other states. For more information, see
CRS Report RS21227, The Emergency Management Assistance Compact (EMAC): An
Overview, by Keith Bea.
64 Nichols letter.
65 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].
66 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.

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CRS-20
and providers who may have provided care without compensation. There is no
federal assistance program designed purposely to cover the uninsured or
uncompensated costs of individual health care that may be needed as a consequence
of a disaster.
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 U.S. uninsured health care needs go unmet under normal
circumstances, there is not consensus that the costs of health care for these disaster
victims should be a federal responsibility. However, policy debates following two
recent disasters, and concerns about 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 health care needs of Katrina
evacuees for five months following the storm. Katrina’s victims continue to
experience mental health problems in disproportionate numbers, however. These
problems, and possibly others resulting from the storm and its aftermath, may linger
beyond the duration of assistance programs that may be available to the storm’s
victims.
While there 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.
Existing Mechanisms. Several federal assistance mechanisms are available
to provide limited coverage for the costs of health care services that are rendered
during, or required as a result of, a catastrophe. 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 health care services may be
coordinated at that level. These programs 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.67
67 42 U.S.C. § 5170b (major disaster) and 42 U.S.C. § 5192 (emergency).

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! The FEMA Individuals and Households Program (IHP) provides,
pursuant to a Stafford Act declaration and reimbursed from the DRF,
cash assistance that may be used for uninsured medical expenses.
Recipients might have to use the funds to meet other needs
concurrently, such as rent and other costs of living. The amount
available is the same for an individual or a household, and is capped
in statute, with an annual adjustment based on the Consumer Price
Index. The maximum amount available for Hurricane Katrina relief
was $26,200, and the current ceiling is $28,800.68
! 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. FEMA and the Substance Abuse and Mental Health
Services Administration (SAMHSA) in HHS jointly administer the
Crisis Counseling Assistance and Training Program (CCP).
Financing for this assistance is drawn from the DRF.69
! 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 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 health care needs for
specific populations.70 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,71 and expanded federal
68 72 Federal Register 57341, October 9, 2007. 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].
69 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.
70 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.
71 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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support, including personnel, for health centers in disaster-affected
areas.72
! Certain federal compensation programs may cover some or all health
care 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,73 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.74
Health Care 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).75 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.76 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, many years later, various respiratory, psychological,
gastrointestinal, and other problems felt to be related to their exposures at the site.77
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
period.78 In addition, several medical monitoring programs were established to
develop and deliver initial, and sometimes follow-up, health examinations to groups
72 Health centers provide health care services regardless of ability to pay. For more
information, see HRSA, Bureau of Primary Health Care, Health Center Program, at
[http://bphc.hrsa.gov/].
73 State and private workers’ compensation programs generally provide similar benefits.
74 For more information on these programs, see CRS Report RL33927, Selected Federal
Compensation Programs for Physical Injury or Death, by Sarah A. Lister and C. Stephen
Redhead, hereinafter referred to as CRS Report RL33927.
75 P.L. 107-42, signed into law on September 22, 2001.
76 For more information, see CRS Report RL33927, the section “September 11th Victim
Compensation Fund.”
77 See CDC/National Institute for Occupational Safety and Health (NIOSH), “World Trade
Center Response,” at [http://www.cdc.gov/niosh/topics/wtc/].
78 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].

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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.79
The VCF is not available to assist individuals whose symptoms arose after the
fund’s closing date. Routine sources of health care 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 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.80
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. Bills introduced in the 110th Congress
have proposed establishing programs to pay health care or other costs for workers
and others who may be ill as a result of their exposures following the WTC incident,
or providing eligibility for these individuals in existing programs.81 None of these
bills has advanced.
Financing Health Care Needs Following Hurricane Katrina. Hurricane
Katrina was the largest mass casualty incident in recent times. Many of the storm’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, HHS expanded a
number of existing programs to assist state and local agencies, health care providers
and the storms’ victims with a variety of health and public health needs.82
Information regarding the overall cost of these expansions is not publicly available.
79 See CRS Report RL33927, section on “World Trade Center Medical Monitoring and
Treatment Program.”
80 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.
81 See, for example, H.R. 1247, H.R. 1414/S. 201, and H.R. 3543.
82 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].

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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.83 This authority was exercised in
a number of affected and host states following Hurricane Katrina. While this
authority may improve access to health care services in affected areas, it does not
directly address the financing of these services.
A significant challenge following Hurricane Katrina involved setting up or re-
establishing health care financing mechanisms for displaced individuals. Ultimately,
the Medicaid program became the mechanism by which affected and host states
financed certain health care costs that were not compensated through other public or
private insurance sources. After several months of debate, 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.84 Congress provided up to $2 billion for these activities.85 This was
in addition to $100 million earlier provided in supplemental appropriations to NDMS
to cover expenses related to the response to Hurricane Katrina.86 (Through an
interagency agreement, most of the $100 million was transferred from FEMA to the
HHS Centers for Medicare and Medicaid Services (CMS), which is also
administering the $2 billion amount.87) 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
83 42 U.S.C. § 1320b-5, enacted in P.L. 107-188.
84 P.L. 109-171, the Deficit Reduction Act of 2005, § 6201, enacted February 8, 2006. This
arrangement was designated for those states covered under a Medicaid and SCHIP waiver
developed specifically for Hurricane Katrina relief. 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.)
85 See GAO, “Hurricane Katrina: Allocation and Use of $2 Billion for Medicaid and Other
Health Care Needs,” GAO-07-67, February 28, 2007.
86 P.L. 109-62, 119 Stat. 1991, September 8, 2005.
87 HHS, Centers for Medicare and Medicaid Services, Justification of Estimates for
Appropriations Committees, FY2007, p. 192.

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displaced low-income individuals by temporarily enrolling them in a host state’s
Medicaid program through a simplified enrollment process.88
Individuals, 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 health care system that would integrate Gulf Coast
and greater New Orleans rebuilding into a broader statewide plan.89 A key funding
strategy for the Collaborative is the development and approval by CMS of a
comprehensive Medicaid waiver and Medicare demonstration proposal.90
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 health care 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 health care 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.
In March 2007, FEMA issued a Disaster Assistance Policy for pandemic flu,
outlining, among other types of assistance, the types of health care services that
would be reimbursable through the Disaster Relief Fund, presuming that a Stafford
major disaster declaration were made.91 Assistance would be provided to eligible
entities (including state and local government agencies) to support a number of ESF-
8 activities, including establishing temporary medical facilities, public
communication, and mass fatality management. With respect to the costs of medical
care provided to individuals, the policy states that the following services may be
eligible for reimbursement, for a period of time to be determined by the Secretary of
88 HHS, “HHS Participation in the Recovery of the Gulf Coast,” at [http://www.hhs.gov/
louisianahealth/background/].
8 9 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].
90 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.
91 See the earlier section of this report, “Would the Stafford Act Apply in a Flu Pandemic?”

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Homeland Security or his designee: “Emergency medical care (non-deferrable
medical treatment of disaster victims in a shelter or temporary medical facility and
related medical facility services and supplies, including emergency medical transport,
X-rays, laboratory and pathology services, and machine diagnostic tests....)”92
Neither “emergency medical care” nor “non-deferrable medical treatment” are
defined. Given the potential for there to be many casualties of a flu pandemic who
require extended critical medical care, the extent to which the Disaster Relief Fund
would be tapped to support the costs of such care is not entirely clear.
As previously noted, following Hurricane Katrina, Congress provided $2.1 billion
to states to cover the states’ usual share of Medicaid and SCHIP costs for storm
victims for a defined time period, and the cost of uncompensated care for the
uninsured. This federal assistance mechanism required legislative action and took
nearly six months to enact, in the absence of a pre-existing mechanism to provide
such federal assistance. Whether this could serve as a model for federal assistance
during a flu pandemic is unclear. An important element of the discussion regarding
the Katrina assistance was the desire to help both states that had been directly
affected, and states that had assumed fiscal liability by accepting evacuees. While
the element of victim displacement would not likely be seen during a pandemic,
Congress may nonetheless debate the merits of expanding federal assistance for
health care costs during a flu pandemic, and the model developed following
Hurricane Katrina may serve as a useful starting point for discussion.
Conclusion
Both the Secretaries of Homeland Security and HHS have statutory authority to
provide additional assistance to state and local governments, and others, in response
to catastrophes. Following Hurricane Katrina, Congress defined in statute the
respective roles of the Secretaries with respect to the public health and medical
response to catastrophes. Numerous specific aspects of these relationships are yet to
be sorted out, through specific planning, exercises, and other approaches. 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. 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 especially well-tailored for the response to public health and medical
threats. Indeed, some of these threats (e.g., bioterrorism) may not even trigger
Stafford Act major disaster assistance.
92 FEMA, “Emergency Assistance for Human Influenza Pandemic,” Disaster Assistance
Policy 9523.17, March 31, 2007, at [http://www.fema.gov/pdf/government/grant/pa/
policy.pdf].

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Appendix. Federal Public Health
Emergency Authorities93
Broad Authority in Section 319
of the Public Health Service Act
The Secretary of HHS94 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).95
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 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
93 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.
94 In this appendix, unless otherwise stated, “the Secretary” refers to the Secretary of HHS.
95 42 U.S.C. § 247d, as amended by P.L. 106-505, the Public Health Improvement Act.

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activities undertaken with respect to each emergency which was conducted or
supported by expenditures from the Fund.96
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.”97
! 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.”98
! 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,
the Department of Justice, and the Federal Bureau of Investigation,
fully and currently informed.”99
! 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
96 42 U.S.C. § 247d, as amended by P.L. 106-505. This fund has not received a recent
appropriation.
97 42 U.S.C. § 247d, as amended by P.L. 107-188, the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002.
98 Ibid.
99 6 U.S.C. § 467, authorized in P.L. 107-296, the Homeland Security Act of 2002.

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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.”100 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.).101 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;102 (2) federal requirements for state
licensure of health professionals; (3) certain provisions of the
Emergency Medical Treatment and Active Labor Act of 1985
(EMTALA); (4) certain sanctions prohibiting physician self-referral
(so-called “Stark” provisions); (5) modification, but not waiver, of
deadlines and timetables for performance of required activities; (6)
limitations on certain payments for health care items and services
furnished to individuals enrolled in a Medicare + Choice plan; and
(7) sanctions and penalties that arise from noncompliance with
certain patient 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
100 21 U.S.C. § 360bbb-3, authorized in P.L. 108-276, the Project BioShield Act of 2004.
101 42 U.S.C. § 1320b-5, as amended by P.L. 107-188, P.L. 108-276, and P.L. 109-417.
102 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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circumstances, use an alternative methodology for determining
payments of certain drugs under the Medicare program.103
! 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.104
Pursuant to the authority in Section 319, the Secretary of HHS has determined
that a public health emergency exists on four 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; (3) in several states affected
by Hurricane Rita in September 2005; and (4) in Iowa and Indiana as a result of
severe flooding in June 2008.105
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
103 42 U.S.C. § 1395w-3a(e), authorized in P.L. 108-173, the Medicare Prescription Drug,
Improvement, and Modernization Act of 2003.
104 42 U.S.C. § 204a, as amended by P.L. 109-417, the Pandemic and All-Hazards
Preparedness Act.
105 The 2001 determination applied to the September 11 attacks, and not to the subsequent
anthrax attack (66 Federal Register 54998, October 31, 2001). More information about the
2005 hurricane determinations is available in CRS Report RL33096, 2005 Gulf Coast
Hurricanes: The Public Health and Medical Response, by Sarah A. Lister. More
information about the 2008 flood determinations is available on the website of the HHS
Centers for Medicare and Medicaid Services (CMS), at [http://www.cms.hhs.gov/
emergency/20_midwestflooding.asp]. Stafford major disaster and emergency declarations
may be found on FEMA’s website at [http://www.fema.gov/hazard/index.shtm].

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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.”106 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.”107
! 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).108
! 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
106 42 U.S.C. § 243c.
107 42 U.S.C. § 300hh-1, as established in P.L. 109-417.
108 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.”109
! 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).110
! 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.”111
! 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.”112 “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
109 7 U.S.C. § 8401, as amended by P.L. 107-188.
110 42 U.S.C. § 300hh-11, as amended by P.L. 107-188.
111 42 U.S.C. § 247d-6b, as amended by P.L. 108-276, the Project BioShield Act of 2004.
112 42 U.S.C. § 247d-7b, as amended by P.L. 109-417.

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likely to cause a public health emergency if transmitted to other
individuals.”113
! 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.114
! 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.115
! 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.”116
! 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
113 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.
114 42 U.S.C. § 233(p). See also sections immediately following this section, including 42
U.S.C. §§ 239 et seq.
115 42 U.S.C. § 247d-6d. Additional information regarding this authority is available in CRS
Report RS22327, Pandemic Flu and Medical Biodefense Countermeasure Liability
Limitation, by Henry Cohen and Vanessa K. Burrows.
116 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.)117
! 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.118
! 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.”119
! 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.”120
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,
117 42 U.S.C. § 289c.
118 16 U.S.C. § 1855(c).
119 42 U.S.C. § 9604.
120 42 U.S.C. § 247b-21.

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and other Public Health Officials of the District of Columbia
government.”121
! 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.122
! 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.”123 This provision in the Stafford Act is
administered by the Substance Abuse and Mental Health Services
Administration in HHS.124
! 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
....”125
! 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.126
121 2 U.S.C. § 121g, first authorized in P.L. 108-199, the Consolidated Appropriations Act,
2004.
122 42 U.S.C. § 300hh-14, as amended by P.L. 109-347, the SAFE Port Act.
123 42 U.S.C. § 5183, Section 416 of the Stafford Act.
124 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.
125 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.
126 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.”127
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 health care 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.
126 (...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. The VA has proposed regulations to implement this authority at 72 Federal
Register 38042-38045, July 12, 2007.
127 6 U.S.C. § 467, authorized in P.L. 107-296, the Homeland Security Act of 2002.

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