The end of an emergency
America prepares to return to pre-pandemic policies
As the number of reported cases of COVID-19 began to balloon in March 2020, President Donald Trump addressed an increasingly concerned country from the White House Rose Garden.
“To unleash the full power of the federal government … I am officially declaring a national emergency,” Trump said. “This will pass. This will pass through and we will be even stronger for it.”
Earlier this year—just over three years since that initial declaration—the Biden administration announced the state of emergency would end on May 11. President Joe Biden signed a Congressional resolution into law in April that moved to end the national emergency ahead of schedule. On Thursday, the accompanying public health emergency also came to a close, closing the book on America’s response to the worldwide pandemic.
Under the 1976 National Emergencies Act, the president has the power to circumvent or modify existing laws in response to a crisis during a national emergency. President Barack Obama declared a national emergency in response to a 2009 breakout of swine flu. Following the September 11, 2001, attacks, President George W. Bush announced a state of emergency to overhaul American security. An emergency declaration normally expires after a year unless the president extends it.
Similarly, a public health emergency gives the Department of Health and Human Services extraordinary powers to deal with the spread of infectious or deadly diseases in accordance with Section 319 of the Public Health Service Act. Both the national and the public health emergency declarations for the COVID-19 pandemic shaped policy in a variety of areas in the last three years. In most cases, the end of the national emergency and the public health emergency won’t immediately throw the switch on pandemic rules. With some exceptions, the majority of the policy adjustments provide a window of time to make necessary changes.
After Trump declared a state of emergency, the Food and Drug Administration approved rules allowing doctors to virtually prescribe medications. In recent weeks, public attention has focused on telemedicine prescriptions of the abortion drug mifepristone, but the authority applies to a number of other drugs, as well. Some businesses formed solely for virtual prescriptions of medications like the controlled substance Adderall, often prescribed for attention-deficit/hyperactivity disorder. Companies like Done and Cerebral offered record-time diagnoses and prescriptions, marketing their services heavily over social media. Both companies are under investigation by the Drug Enforcement Administration for potentially abusing prescription standards and administering controlled substances incorrectly. Proponents of returning to pre-pandemic processes say the reversal will help supply patients who need medication the most by increasing the level of scrutiny for prescriptions. Others fear customers will lose access to increased care.
Title 42 and immigration
In the U.S. Code, Title 42 allows the president to restrict travel into the country if a transmissible illness might make its way into the United States. Title 42 enabled the country’s Border Patrol to expel migrants immediately before they could apply for asylum. Without Title 42’s provisions, U.S. immigration laws won’t change much. The law under Title 8, the portion of the U.S. code normally applicable in cases of asylum, is mostly the same as Title 42 rules—if not slightly more stringent. Still, border officials are preparing for an influx of asylum-seekers with the end of Title 42.
Medicare, Medicaid, and insurance
Under the national health emergency, various federal and state incentives encouraged healthcare providers to prioritize COVID-19 treatment and testing services. If states maintained eligibility standards, kept their premiums the same price, provided COVID-19 testing, and didn’t increase taxpayer contribution requirements, they would become eligible to receive increased federal funding for Medicaid. Similarly, hospitals treating those diagnosed with COVID-19 would receive a 20 percent increase in their Medicare payment rate for that care. The removal of guidelines like these may mean a change in coverage, price, or eligibility for users and hospitals. Other policies were a little more direct. Private health companies that dealt with group health plans or individual health insurance were required to provide free testing for COVID-19. The removal of the public health emergency will end such requirements.
Liability protections under the PREP Act
Legally, the United States had already taken steps to deal with a widespread disease outbreak long before the coronavirus. In the 2005 Public Readiness and Emergency Preparedness Act, Congress outlined legal protections for medical providers in an emergency. During the pandemic, these protections enabled pharmacists and pharmacy interns to deliver COVID-19 vaccines to children—superseding any state regulations that limited the job to doctors or nurses. Additionally, physicians and nurses with expired licenses were cleared to administer COVID-19 vaccines if their license had expired less than five years prior.
On a larger scale, a wide range of manufacturers also fell under the PREP Act. Any company devoted to “creating covered countermeasures” was shielded from liability. Companies producing drugs, tests, and respiratory devices would fall under this category. Most notably, drugmakers like Pfizer and Moderna would receive protections in exchange for developing vaccines in record times.
While the powers granted by the PREP Act won’t expire until December 2024, their provisions are directly triggered by the declaration of a public health emergency.
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