President Trump’s Emergency Declaration Concerning the Opioid Crisis

Posted on December 12, 2017 by jphmpdirect

by Elizabeth Van Nostrand, JD, and Tina Batra Hershey, JD, MPH

Crossroads: Law and Public Health addresses topics related to the intersection of law and public health. This series highlights the perspectives of two attorneys turned academicians and explores legal and policy issues that impact public health.

On October 26, 2017, President Trump finally took action to follow through with his August 2017 statement that the opioid crisis constitutes a “national emergency.” The intricacies and effects of his statement, however, were not accurately related. Fox News, CNN, the New York Times, and other media outlets reported that Trump “officially declared” the opioid epidemic to be a national emergency; however, at the risk of being overly persnickety, Trump didn’t officially declare anything. What he did do was issue a Presidential Memorandum (which is like an Executive Order but not quite as formal) to Eric D. Hargan, Acting Secretary of the United States Department of Health and Human Services (DHHS), requesting that Hargan “consider” declaring the opioid crisis to be a public health emergency. Later that same day, Hargan complied with the President’s suggestion and the DHHS designated a nationwide public health emergency.

Firstly, President Trump does not have the authority to issue a public health emergency declaration. Rather, there are two federal laws allowing the President to declare an “emergency“: the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 (“Stafford Act”) and the National Emergencies Act (“NEA”).

The Stafford Act authorizes the President to declare a “major disaster” or “emergency” only after a governor or tribal leader certifies that a threat or actual event has overwhelmed their jurisdiction’s resources. There is one exception: The president can issue a Stafford Act declaration on his own when a disaster occurs on federally controlled property, like the Oklahoma City bombing of the Murrah Federal Building. A Stafford Act declaration can release a panoply of federal disaster relief including individual assistance (such as crisis counseling programs, disaster legal services, and disaster case management services), public assistance to local, state, and tribal governments to repair or replace disaster-damaged facilities, and hazard mitigation assistance to prevent or reduce long term risk to life and property.

The NEA allows the President to proclaim a “national emergency,” which is immediately transmitted to the Congress and published in the Federal Register. Unlike the Stafford Act, however, the NEA is a procedural device and does not authorize any relief on its own.

Secondly, at the federal level, only the Secretary of the DHHS can declare a public health emergency. Such a designation is appropriate in combating the opioid epidemic because the Public Health Service Act allows a declaration when a disorder presents a public health emergency. After such a declaration, the Secretary has broad authority to “take such action as appropriate,” including accessing money from the Public Health Emergency Fund (which is currently about $57,000) and temporarily reassigning state and local public health department personnel. For example, staff could be deployed to provide medication-assisted treatment or to train prescription providers in the use of naloxone (the antidote for someone who is experiencing an opioid overdose).

What is really powerful, though, is when the President and Secretary combine their emergency declaration authorities. If the President declares an emergency either under the Stafford Act or the NEA AND the Secretary of DHHS declares a public health emergency, the secretary can then waive certain requirements found under section 1135 of the Social Security Act. Such waivers can result in the modification of Medicare, Medicaid, the State Children’s Health Insurance Program (“CHIP”), Emergency Medical Treatment and Active Labor Act (“EMTALA”), and HIPAA Privacy Rule requirements – an incredibly powerful authority.

This coalescence of authorities would be especially impactful in battling the opioid crisis because the arcane Medicaid Act law that prohibits federal dollars from reimbursing in-patient substance use disorder treatment in facilities that have more than 16 beds could be waived. If President Trump signs an emergency declaration under the NEA, the DHHS Acting Secretary can then take full advantage of his federal powers. Why this has not yet been done is, at the very least, perplexing.

President Trump and Congress must take immediate action to stem this nationwide disaster that kills over 175 Americans every day. An emergency declaration under the NEA is a judicious beginning. Although President Trump’s recent actions (including donating his 3^rd quarter presidential salary for opioid education) are laudable, combatting the opioid crisis takes more than gestures. It requires a huge influx of federal funding to supplement the paltry $57,000 in the Public Health Emergency Fund, as well as the deployment of “boots on the ground” personnel to aid in treatment and training. Congress has vested the President with tremendous emergency powers – it’s time to use them.

Elizabeth Van Nostrand, JD, is an Assistant Professor in the Department of Health Policy andManagement at Pitt Public Health, an Adjunct Professor in the School of Law, a recent Robert Wood Johnson Foundation Fellow, Director of Pitt Public Health’s JD/MPH program, and Principal Investigator/Director of the Mid-Atlantic Regional Training Center. [Full bio].