On August 12, 2016, Sylvia Matthews Burwell, the Secretary of Health and Human Services (HHS), declared a public health emergency for Puerto Rico "[a]s a consequence of the outbreak of Zika virus and its potential effect on pregnant women and children born to pregnant women with Zika."
The Zika virus (ZIKV), first recognized in Uganda in 1947, emerged in South America early in 2015. Although most cases of infection are mild, prenatal infection can cause severe birth defects, including microcephaly. ZIKV is transmitted among humans by the bite of an infected mosquito, by sexual contact, from mother to fetus, and through contaminated blood transfusions. Protecting pregnant women from infection is a public health priority.
ZIKV has spread from South America to Central America and the Caribbean. About 2,000 infections have been reported on the U.S. mainland, mostly among travelers from countries with widespread mosquito-borne ZIKV transmission. To date, only one neighborhood in Florida has experienced local (i.e., mosquito-borne) transmission.
In contrast, Puerto Rico has been hard hit. Local transmission on the island was first recognized in November 2015. Since then, more than 10,000 cases have been reported, more than 1,000 of them in pregnant women. Mosquito control measures have faltered, and Dr. Thomas R. Frieden, Director of the U.S. Centers for Disease Control and Prevention (CDC), said that data from July showed an "explosion" of ZIKV cases.
In February 2016 the Administration requested supplemental funding of $1.9 billion for the Zika response, including primary care, maternal and child health, and Medicaid assistance for Puerto Rico. Congress has considered but not passed a supplemental appropriation to date, and HHS has reprogrammed $670 million in funds from other sources for its domestic and international response efforts.
Figure 1. Portion of a Brochure in Spanish Urging Protection from Mosquito Bites
Source: Centers for Disease Control and Prevention (CDC) and the Departamento de Salud del Estado Libre Asociado de Puerto Rico (Puerto Rico Department of Health), "Información Sobre el Virus del Zika" (Information About the Zika Virus), http://www.salud.gov.pr/Sobre-tu-Salud/Pages/Condiciones/Zika.aspx.
The term "public health emergency" is used generically to refer to a variety of situations that involve threats to life and health, or threats to health system infrastructure. Federal and state laws use the term in various contexts to trigger broad or specific response authorities or to release additional funds.
On August 12, HHS Secretary Burwell declared the Zika outbreak to be a public health emergency pursuant to Section 319 of the Public Health Service Act (PHSA), 42 U.S.C. §247d, one of several public health emergency legal authorities available to her. The "Section 319" authority may be invoked if the Secretary "determines ... 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."
A determination under Section 319, alone or concurrent with other legal provisions, allows the Secretary to take certain actions not otherwise authorized, including (among others)
Although a Section 319 determination also allows the Secretary to access a Public Health Emergency Fund for response purposes, there have not been any funds in this account since 2000.
In a press release accompanying the determination, Secretary Burwell listed two specific actions that the government of Puerto Rico may take pursuant to the Section 319 determination. Each of them allows federal funds to support personnel in Puerto Rico who work on the ZIKV response effort. The enabled authorities are as follows:
The DWG program, which is authorized by Section 170 of the Workforce Innovation and Opportunity Act (WIOA; P.L. 113-128), funds grants that are awarded primarily to states and local Workforce Development Boards (WDBs) to provide services for eligible individuals. Eligible workers include those dislocated by economic conditions, military installation closures, and emergency or disaster conditions. DWG services include job search assistance and training for eligible workers. In addition, DWG funding may be used to provide direct employment ("disaster relief employment") to individuals for a period of up to 12 months for work related to a disaster.
Typically DOL's authority to award disaster relief grants under the DWG program would be triggered by a declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act). However, because the ZIKV outbreak has not led to a Stafford Act declaration to date, the Section 319 determination enables the DWGs pursuant to WIOA Section 170(a)(1)(B) (29 U.S.C. §3225(a)(1)(B)), regarding "an emergency or disaster situation of national significance that could result in a potentially large loss of employment, as declared or otherwise recognized by the chief official of a Federal agency with authority for or jurisdiction over the Federal response to the emergency or disaster situation."
In addition, PHSA Section 319(e) authorizes the HHS Secretary, upon gubernatorial request, to allow state, local, or tribal government employees who are supported by federal grants under any PHSA authority to work temporarily on the public health emergency response instead, without loss of funding. The PHSA provides authority, at least in part, for eight agencies and several offices in HHS, and their grant-making activities. The Section 319 declaration for Puerto Rico does not clarify which PHSA grants may be affected in this case.