Public health law experts Lawrence Gostin and James Hodge explain the importance of the public health emergency declaration as Covid cases and hospitalizations begin to rise.
This past Friday, November 11, the Federal government indicated that it would renew its declaration of Covid-19 as a national public health emergency, which was slated to expire in January. Already most states have ended their own states of emergency, with only nine states retaining them. Federal continuation of the emergency now likely into April 2023 is wise as the ramifications of withdrawing the public health emergency for Covid-19 emergency could have been very bad. Here’s why.
First, SARS-CoV-2 still poses a major health threat to Americans. With new sub-variants becoming “fitter” at evading immune defenses, many persons are still vulnerable, especially a large swath of unvaccinated individuals.
The United States’ vaccination and booster rates lag far behind most of our peer nations. Hospitalizations due to Covid-19 are up 6% in the first week of November from the prior week alone. The U.S. continues to experience extraordinary mortality tied to Covid-19, averaging nearly 340 deaths per day over the last month. Covid-19 remains among CDC’s top seven causes of death nationally. Nearly all Covid-19 deaths would be preventable if only more Americans were fully vaccinated and boosted.
Worse yet is the triple threat of infectious respiratory diseases bearing down on Americans. Escalating rates of annual flu infections and respiratory syncytial virus (RSV) are filling emergency rooms, especially in pediatric hospitals nationally. Impacts of RSV among infants and adolescents led CDC to issue a formal health alert on November 4 and may justify a distinct public health emergency declaration via the federal Department of Health and Human Services (HHS) later this month. On Saturday, November 12, Colorado Governor Jared Polis added RSV to his state’s ongoing Covid-19 emergency.
And let’s not forget the ongoing national PHE declaration regarding monkeypox with nearly 30,000 cases spread across all 50 states nor New York’s state of disaster over identified cases of polio, a re-emerging condition marked for global eradication earlier this century.
From a purely epidemiological basis, walking away from the nearly three-year national PHE for Covid-19 seems ill-timed. Moreover, core legal and policy repercussions of HHS potential withdrawal of its PHE raise the stakes considerably higher, even though that may not happen until spring. The PHE has already been renewed for 90-day periods 10 times. Declaring a national PHE is no mere political stunt (notwithstanding intense politicization of Covid-19).
HHS’ emergency authorizes extensive legal powers to buttress the nation’s public health and health care systems amid crises. Coupled with presidential emergency declarations, which still remain in effect, and supplemented by prior congressional actions, the declaration of an emergency greatly facilitates response efforts and shifts to crisis standards of care. Resulting adaptations in health care delivery and public health response may quickly fall away when the PHE concludes.
For one thing, getting rid of the emergency risks the health insurance status of millions. Many Americans were temporarily enrolled in Medicaid and Children’s Health Insurance Programs during the pandemic, largely at federal government expense, to help provide immediate access to care. Upwards of 15 million Americans may lose their coverage within a year of the end of the PHE without further federal assurances. At the same time, food insecurity will invariably climb once benefits that millions of Americans temporarily received through federal Supplemental Nutrition Assistance Program disappear when the emergency ends.
Additional fallout may arise. Significant innovations in health care services, including telehealth initiatives and health care worker flexibilities, may cease or be severely curtailed within months. Enhanced access to vaccines through pharmacies, which was greatly facilitated by HHS pursuant to its separate declarations via the Public Readiness and Emergency Preparedness Act, may be thwarted.
The Food and Drug Administration’s (FDA) ability to fast-track authorization of Covid-19 drugs, vaccines, tests, and protective equipment relies in large part on legal foundations of a national emergency. Terminating the public health emergency may effectively quell FDA’s emergency use authorities and thwart liability protections for manufacturers, distributors, and retailers of these life-saving medical countermeasures. FDA is currently assessing how to unravel dozens of emergency powers.
Public health surveillance activities to monitor Covid-19 cases, already grossly under-funded, would be badly impacted. CDC has used emergency powers to ask states to report Covid infections, hospitalizations, and deaths. That could go away. Absent effective, real-time data, the risks of continued Covid-19 variants spreading nationally increase exponentially.
Ending these health care, public health, and social welfare programs and benefits legally tied to HHS’ public health emergency may legitimately present its own crisis. Clearly the national emergency surrounding Covid-19 cannot go on forever (although an existing PHE issued in 2017 regarding opioid misuses has extended over five years). Given that Covid-19 infections are on the rise, public officials are properly buying time and giving serious thought as to how best manage a transition out of it.
For now, adherence to emergency measures against the backdrop of continued national emerging disease threats warrants HHS’ careful consideration. An “all or nothing” approach would be reckless. What is needed is definitive national guidance on gradual de-escalation steps to assure that millions of Americans, already battered by the worst infectious disease threat in U.S. history, do not suffer the loss of their livelihoods, or lives, to the abrupt termination of government authority and support.
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