Essential Health Care Services Addressing Intimate Partner Violence (2024)

Appendix A

Emergency Declarations and Federal Frameworks

Chapter 3 of this report provides an overview of public health emergencies (PHEs), including the role of federal and state governments in preparing for and responding to these disasters. This appendix provides additional background information about the government’s role, specifically pertaining to emergency declarations at both federal and state levels and national frameworks for disaster planning and response.

FEDERAL AND STATE EMERGENCY DECLARATIONS

Although emergency and disaster management laws vary, the primary function of declarations is to trigger predetermined delegations of authority from the legislative branch to specified executive branch officials and agencies. Under the principle of separation of powers enshrined in the federal and state constitutions, executive branch agencies and officials are limited to exercising authority that is delegated to them by the constitution directly or (more commonly) by the legislative branch through statutes (Jaeger-Fine, 2020). Legislatures, recognizing that they are not well suited to implement swift responses or nimble adjustments, typically adopt emergency and disaster statutes that specify the conditions under which a declaration may be issued and the authority that will be automatically delegated to specific officials and agencies while that declaration is in effect (Wiley et al., 2021). Officials and agencies may use this delegated authority to make government expenditures and execute government contracts, to suspend or alter regulations that might otherwise impede an effective response, and to issue mandates or restrictions to facilitate the response—all without waiting

for the legislative branch to act in response to a rapidly evolving situation (Wiley et al., 2021).

Although the federal role in PHE preparedness and response has grown in recent decades, state and local governments continue to bear primary responsibility. Most state and territorial legislatures have adopted civil defense, emergency, and disaster statutes to guide state, tribal, territorial, and local officials in responding to a PHE (Roberts, 2013). In many cases, these statutes were drafted with civil unrest and natural disasters in mind, but they are usually broad enough to encompass disease outbreaks as well. Civil defense statutes centered around ensuring the public’s safety may similarly be interpreted to encompass measures to secure the public’s health during an emergency (Wiley et al., 2021). State legislatures adopting civil defense, emergency, and disaster statutes during the mid-20th century generally left previous public health statutes in place that granted public health officials powers relevant to controlling the spread of infectious diseases (Wiley et al., 2021).

State emergency and disaster management statutes typically empower the governor to enact reasonable and necessary measures to “protect life and property or to bring the emergency situation within the affected area under control.”¹ Powers delegated by many state statutes specifically authorize governors to control movement into, out of, and within an affected area.² A few state legislatures have delegated the entirety of the state’s police powers (the broad authority to take actions to protect for the general welfare) to state executives during emergencies and disasters (Wiley et al., 2021). For example, California’s Emergency Services Act grants the governor “complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California in order to effectuate the purposes of [emergency mitigation and protection of health and safety].”³ The state’s public health statute also authorizes public health officials to “take any preventive measure that may be necessary to protect and preserve the public health from any public health hazard during any ‘state of war emergency,’ ‘state of emergency,’ or ‘local emergency’ . . . within his

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¹ See, e.g., Mich. C.L. 10.31(1). When Governor Whitmer relied on this provision to extend her authority to issue coronavirus emergency orders in 2020, the state supreme court determined that the statute violated the nondelegation doctrine enshrined in the state constitution. See Certified Questions from United States Dist. Court, W. Dist. of Michigan, S. Div., No. 161492, 2020 WL 5877599, at *24 (Mich. Oct. 2, 2020).

² Certified Questions from United States Dist. Court, W. Dist. of Michigan, S. Div., No. 161492, 2020 WL 5877599, at *24 (Mich. Oct. 2, 2020).

³ Cal. Gov. Code § 8627 (emphasis added).

or her jurisdiction.”⁴ Oregon’s laws are similar; one emergency response law grants the state’s governor “all police powers vested in the state by the Oregon Constitution in order to effectuate the purposes of [the statute].”⁵ Examples of specific powers can be found in one of Oregon’s public health statues, which provides more specific authorities to close facilities, regulate goods and services, and control “entry into, exit from, movement within, and occupancy of premises in any public area subject to or threatened by a public health emergency.” This is subject to a 28-day limit on these expanded gubernatorial authorities.⁶

Most U.S. crisis response efforts are governed by the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act),⁷ passed in 1988 and last amended in 2021. It covers two types of incidents—more minor emergencies and larger major disasters—and provides both public assistance and individual assistance during disasters (Lee and Lindsay, 2021). The Stafford Act was rarely used for biologically driven public health disasters before it was employed for the West Nile Virus in New York and New Jersey in 2000 (Lee and Lindsay, 2021). The Section 501b clause of the Stafford Act was engaged to declare the COVID-19 pandemic a nationwide emergency in 2020 (Lee and Lindsay, 2021). This was the first time the Stafford Act had been used to declare a nationwide emergency. The declaration invited governors and territorial leaders to request major disaster declarations, which they all subsequently did. This also marked the first time the major disaster clause had been used for any infectious disease agent (Lee and Lindsay, 2021).

Separately, Section 319 of the Public Health Service Act⁸ gives the federal Secretary of the Department of Health and Human Services (HHS) the authority to declare a PHE when:

• A disease or disorder presents a PHE; or
• A PHE, including significant outbreaks of infectious disease or bioterrorist attacks, otherwise exists.

Some definitions of a public health emergency are fairly limited in scope. For example, the World Health Organizations’ International Health Regulations constrains PHEs of international concern within the “international spread of disease” (WHO, 2019). However, the Public Health

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⁴ Cal. Health & Saf. C. § 101040 (local health officers); § 101475 (city health officers) (emphasis added).

⁵ Or. Rev. Stat. § 401.168(1).

⁶ Or. Rev. Stat. § 433.441(4).

⁷ Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707, 100th Congress (May 22, 1974) (November 23, 1988).

⁸ Public Health Service Act 42 USC 247d §319.

Service Act, which has been amended by pandemic preparedness measures several times, has been applied more broadly to disasters (Elsea et al., 2020). The federal government has declared PHEs for hurricanes including Katrina, Sandy, and Maria, as well as for infectious disease outbreaks, including H1N1 influenza, Zika virus, and SARS-CoV-2 (the virus that causes COVID-19), as well as for the United States’ opioid crisis (ASPR, 2023a).

Federally, the declaration of a PHE under Section 319 of the Public Health Service Act⁹ gives the Secretary of the Department of Health and Human Services (HHS) the ability to waive certain Medicaid and Medicare requirements, adjust grant deadlines, deploy personnel, and provide direct funding to impacted areas. CDC has developed a crisis-funding vehicle that is tied to these declarations and can be used to rapidly send money to impacted jurisdictions outside of the federal appropriations process (ASPR, 2023b). During the COVID-19 pandemic, the PHE designation helped to ensure insurance coverage for COVID-19 services and testing, allowed and surged telehealth use, and provided billions of dollars in aid to states and localities for their public health efforts (Lister et al., 2020).

Federal officials may issue several distinct declarations in response to a PHE:

• The President may issue a national emergency declaration under Section 201 of the National Emergencies Act¹⁰ (NEA). An NEA declaration authorizes federal agencies to waive or suspend requirements and obligations under federal law. An NEA declaration lasts for 1 year and may be renewed for additional periods of up to 1 year unless it is terminated by the President or by a joint resolution of Congress.
• The Secretary of HHS may issue an Emergency Use Authorization (EUA) declaration under Section 564 of the Federal Food, Drug, and Cosmetic Act.¹¹ An EUA declaration authorizes the Food and Drug Administration (FDA) to issue EUAs for medical countermeasures, including personal protective equipment, diagnostics, therapeutics, and vaccines. A Section 564 declaration remains in effect indefinitely until terminated by the HHS Secretary.

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⁹ Public Health Service Act 42 USC 247d §319. See also https://aspr.hhs.gov/legal/PHE/Pages/Public-Health-Emergency-Declaration.aspx (accessed November 13, 2023).

¹⁰ National Emergencies Act, Public Law 94-412, 94th Congress (September 14, 1976).

¹¹ Federal Food, Drug, and Cosmetic Act Section 564 21 USC § 360bbb-3.

• The HHS secretary may also issue a Public Readiness and Emergency Preparedness (PREP) Act¹² declaration under Section 319F-3 of the Public Health Service Act, which provides immunity from liability for specified activities related to medical countermeasures covered by the declaration.

FEDERAL FRAMEWORKS OVERVIEW

After the 2007 Homeland Security Strategy was established, the federal government issued national frameworks that covered both the response and recovery phases for disasters and emergencies. Both frameworks are meant to be aligned and to link up to the broader Department of Homeland Security strategy and the national preparedness systems.

Today, the National Response Framework (NRF)¹³ and National Incident Management System (NIMS)¹⁴ provide organizational structures and preparedness guidance for federal agencies. Whereas the NRF is explicitly designed for federal agency use, the principles within NIMS are meant to support all levels of government as well as nongovernment groups, such as nonprofit and private-sector organizations (FEMA, 2017). This means that most organizations that have structured emergency response apparatus use NIMS in some form—especially the Incident Command System (ICS), a flexible set of organization structures meant to encompass the entirety of a disaster or PHE response (FEMA, 2017).

The NRF implements NIMS within federal emergency operations centers through the Emergency Support Functions (ESFs) (DHS, 2019). The 15 ESFs cover a broad array of functions (e.g., Transportation, Search and Rescue) and provide the mechanism for coordination between federal agencies, which often have multiple overlapping responsibilities within various ESFs. For example, ESF 8, Public Health and Medical Services, is coordinated by HHS and includes such partners as the Departments of Energy, Labor, and Defense; the U.S. Postal Service; and the American Red Cross. Many of these agencies also have lead or supporting roles in other ESFs (DHS, 2019).

The National Disaster Recovery Framework (NDRF) provides guidance for coordinating the authorities and missions of federal agencies under a wide range of federal laws, including the Stafford Act, the Public Health

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¹² Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, Public Law 109-148 Division C: Public Readiness and Emergency Preparedness (PREP) Act of 2005 § 2, 109th Congress (December 30, 2005).

¹³ For more information on the NRF, see https://www.fema.gov/emergency-managers/national-preparedness/frameworks/response (accessed August 25, 2023).

¹⁴ For more information on the NIMS, see https://www.fema.gov/emergency-managers/nims (accessed August 25, 2023).

Service Act, the various authorizing statutes applicable to specific agencies, and other statutes that might apply to particular types of PHEs (DHS, 2016). The NDRF may be applied to an incident even in the absence of a federal emergency or disaster declaration (DHS, 2016).

The NDRF is a roadmap for promoting successful disaster recovery, especially from large-scale or catastrophic incidents. Although the framework states that its primary role is in the preparedness phase, its end goal is helping local governments, states, and tribes recover quickly from a disaster (DHS, 2016). It provides disaster recovery managers with a flexible structure that lets them work in a unified manner. It also aims to improve the social, health, economic, natural, and environmental aspects of impacted communities and make the United States more resilient (DHS, 2016). The framework seeks to make the best use of existing federal resources and authorities and to use the full power of all sectors to help communities recover (DHS, 2016). Together with the NRF, the NDRF provides guidance for implementing the response and recovery doctrine laid out in 2007’s National Homeland Security Strategy (DHS, 2007).

The Recovery Support Functions (RSFs) are six groups of core recovery capabilities that make it easier to solve problems and access resources during disasters and emergencies (DHS, 2016). The RSFs also facilitate collaboration among state and federal agencies, nongovernmental partners, and other stakeholders. Each RSF is directed by a set of primary and coordinating federal agencies with supporting organizations that work with SLTT officials, nongovernmental organizations, and private-sector partners (DHS, 2016). RSFs gather pertinent specialists and stakeholders both during steady state planning and when they are activated post disaster to identify and address recovery issues. RSFs help facilitate local stakeholder participation and promote intergovernmental and public–private partnerships (DHS, 2016).

A federal coordinating officer (FCO) works together with a federal disaster recovery coordinator to coordinate and aid in the transition between the ESFs and RSFs (DHS, 2016). Because each disaster is complex and unique, operations and the methods and pace for transitioning from ESFs to RSFs will differ in each case. The FCO works with state, tribal, and local authorities to decide when to start phasing down ESFs and to start phasing in RSFs (DHS, 2016). In some instances, RSFs may be deployed while ESFs are still active, and the two tend to occur in parallel while ESFs are demobilized. Note that ESFs and RSFs have distinct mission objectives, approaches, partnerships, and structures, and the stakeholders involved in each may differ.

In an effort to make these intersecting frameworks and functions easier to understand, the Federal Emergency Management Agency (FEMA)

introduced Community Lifelines in the fourth edition of the NRF.¹⁵ The eight Community Lifelines are services necessary for government and business operations to continue to function in order to protect human health, safety, and economic security (FEMA, 2023). They are interdependent and mutually vulnerable. The Health and Medical Lifeline includes objectives for restoring Medical Care, Public Health, Patient Movement, the Medical Supply Chain, and Fatality Management. Community Lifelines specifically incorporate local civil society and private-sector partners (FEMA, 2023). While ESFs and RSFs are organizational structures, Community Lifelines outline the key components of a community’s service infrastructure that need to be prioritized to address the effects of a disaster (FEMA, 2023).

REFERENCES

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¹⁵ For more information on Community Lifelines, see https://www.fema.gov/emergency-managers/practitioners/lifelines (accessed July 21, 2023).

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