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The Trump Admin Should Be Talking Loudly About These Health Laws — Right Now

We are a nation of laws; we are not a nation of political personalities. Regardless of whether you personally agree or disagree with the Trump Administration’s reaction to the Coronavirus (more specifically, COVID-19), the president’s invocation Wednesday of a law which primarily deals with national defense to defeat a virus raises questions about the readiness of this nation’s laws to outline the mustering of an orderly and adequate response to a pandemic. Last week’s response was hallmarked by the parading of corporate CEOs to effectuate a solution.

Having spent time reading the health laws of many of the fifty states since late last week, many of which were clearly written to deal with health issues long since defeated (such as tuberculosis), it seems many state health laws need serious revision. However, federal health and disaster statutes are more organized and orderly; many have contemplated a pandemic such as COVID-19 for some time. Here are several important areas within the current United States Code which have thus far, in this writer’s opinion, been receiving far too little attention.

This list has been compiled by scouring the Code itself — rather than listening to press conferences or reading statements from politicians — in an attempt to ascertain what is supposed to happen and to question what is not being done.  The laws are proof that organizational frameworks have been contemplated and do, indeed, exist.  If you side with Americans who sense a governmental boondoggle over the handling of COVID-19, ask yourself whether these laws have been — or will be — effectively put into practice and action.  Do not forget that is the president’s job to “take Care that the Laws be faithfully executed,” as Article II, Section 3 of the Constitution requires.

42 U.S.C. §§ 300hh-300hh-2 Public Health Service Act

This law requires cooperation between the Secretary of Health and Human Services and the Secreatries of Veterans Affairs, Transportation, Defense, Homeland Security, and other federal agencies. It puts HHS “in control of emergency public health and medical response assets” in a “public health emergency.” It requires a National Health Security Strategy, which is a “plan for public health emergency preparedness and response.” It requires a plan for an adequately-trained “effective and prepared public health workforce.” It requires studying “surge capacity,” and it authorizes the acquisition and operation of “mobile medical assets.”

42 U.S.C. § 247d–6b – Required “Strategic National Stockpile” of Medical Supplies

This law requires the Secretary of Health and Human Services to coordinate with the Homeland Security Secretary and other officials to “maintain a stockpile or stockpiles of drugs, vaccines and other biological products, medical devices, and other supplies in such numbers, types, and amounts … to be appropriate and practicable … to provide for and optimize the emergency health security of the United States, including the emergency health security of children and other vulnerable populations, in the event of a bioterrorist attack or other public health emergency.”  The law, which is lengthy, contains clear procedures for emergency procurement and replenishiment of these supplies.

Governors, practitioners, a few senators, and a few news outlets (example, example, example, example, example) are asking questions about the status of these required supplies.

42 U.S.C. § 243 – Authorizing Federal/State Cooperation

This law explicitly authorizes the federal government and the states to work together on planning for epidemics and to work together should quarantines become necessary. It furthermore authorizes, but not requires — the key word is “may” — assistance to the states, but that assistance may come with strings attached:

The Secretary [of HHS] may, at the request of the appropriate State or local authority, extend temporary (not in excess of six months) assistance to States or localities in meeting health emergencies of such a nature as to warrant Federal assistance. The Secretary may require such reimbursement of the United States for assistance provided under this paragraph as he may determine to be reasonable under the circumstances. Any reimbursement so paid shall be credited to the applicable appropriation for the Service for the year in which such reimbursement is received.

38 U.S.C. § 8117(c), (e) – Assistance from Veterans Affairs in a Public Health Emergency

This law, which couples with the Public Health Service Act, requires the Secretary of Veterans Affairs to assist the Department of Health and Human Services in the event of a public health emergency by using its contracts and its facilities to support broader public health issues beyond the care of veterans.  It also requires the VA to do the following:

[D]evelop and maintain a centralized system for tracking the current location and availability of pharmaceuticals, medical supplies, and medical equipment throughout the Department health care system in order to permit the ready identification and utilization of such pharmaceuticals, supplies, and equipment for a variety of purposes, including response to a public health emergency.

How much money is earmarked just to ensure this assistance from the VA? A total of $155,300,000 annually.

15 U.S.C. § 1514 – Caring for Remote Federal Workers & Their Families

This law authorizes the Secretary of Commerce to provide “free emergency medical services … and free emergency medical supplies” to the employees “and their dependents” of “other Federal agencies” and, if requested, to the various branches of the U.S. Military in emergency times — if those employees and dependents are in either Alaska or “other points outside the continental United States.” Given the global nature of this pandemic, workers stationed far from home may need this assistance unlocked.

42 U.S.C. § 300hh-10 – HHS Assistant Secretary for Preparedness and Response

This law creates a point person to be in charge of “public health emergency preparedness”–to lead the COVID-19 response, and to sound the alarm that we don’t have enough supplies on hand.

42 U.S.C. § 247d–7e – Biomedical Advanced Research and Development Authority

This law requires a “strategic plan” for a number of things, including “the procurement … of qualified pandemic or epidemic products.” The plan is to be “disseminate[d] … to such persons who may have the capacity to substantially contribute to the activities described” in the plan.

21 U.S.C. § 360bbb–4b – Medical Countermeasure Master Files

This law allows the creation of “master files” of information about pandemics “to support the approval, licensure, classification, clearance, conditional approval, or authorization of … qualified pandemic or epidemic products.” The “manufacture” of such products is also supported by the files.

21 U.S.C. § 360bbb–4 – Technical Assistance

This law allows the Food and Drug Administration (FDA) to provide teams to assist vaccine manufacturers.

42 U.S. Code § 247d–1 – Vaccine Tracking and Distribution

This law facilitates cooperation between “relevant manufacturers, wholesalers, and distributors” and the federal government. In turn, the federal government must promote state, local, and tribal cooperation with manufacturers. The law explicitly only applies to the seasonal flu vaccine. Congress could update it or use it as a model for others.

42 U.S.C. § 247d–7f – Pandemic Response Products; Antitrust Waivers

This law allows the Health Secretary to join with the Homeland Security Secretary and the Attorney General to “conduct meetings and consultations with persons engaged in the development of … a qualified pandemic or epidemic product … for the purpose of the development, manufacture, distribution, purchase, or storage” of such a product. The law waives certain antitrust laws for participation such meetings and certain types of conduct which result.

42 U.S.C. § 247d–7g – Pandemic Working Groups

This law allows the establishment of working groups of experts for pandemics.

[Photo by Alex Wong/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is the anchor and executive producer of Law&Crime Daily on the Law&Crime Network.  The broadcast is a recap of the day's most compelling trials and court proceedings.  He also serves as an editor for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.