Key Info About the End of the Public Health Emergency

By NAHC

This article compiled with the assistance of our friends at Alston & Bird LLP.

You are probably seeing news stories about this bill which the President has said he will sign. This is not the Public Health Emergency (set to end on May 11) since the PHE is designated by HHS and the national emergency declaration must be made by the President, but there are some areas of impact.  Here’s our overview on what this is:

On March 29, the Senate passed HJ Res 7 (https://www.congress.gov/bill/118th-congress/house-joint-resolution/7/text [congress.gov]), which would terminate the President’s National Emergencies Act declaration regarding the COVID-19 national emergency. President Biden is expected to sign this, despite previously indicating he would end the emergency on May 11. It is important to note that this action will not impact the various waivers and flexibilities implemented pursuant to the HHS Secretary’s COVID-19 public health emergency (PHE) declaration and/or the Stafford Act declaration.

The important details are as follows:

  1. HJ Res 7 would terminate the President’s national emergency declaration pursuant to section 202 of the National Emergencies Act.
    1. The language in HJ Res 7 is very specific, referencing President Trump’s original proclamation under the National Emergencies Act (https://www.govinfo.gov/content/pkg/FR-2020-03-18/pdf/2020-05794.pdf [govinfo.gov]).
  2. The Stafford Act declaration, made by President Trump in March 2020 (https://trumpwhitehouse.archives.gov/briefings-statements/letter-president-donald-j-trump-emergency-determination-stafford-act/ [trumpwhitehouse.archives.gov]) was made independently from the original National Emergencies Act declaration and is not impacted by HJ Res 7.
    1. Furthermore, Stafford Act declarations do not have pre-set terms (i.e., there is no “expiration” date of these declarations specified in either statute or regulation) (see: https://crsreports.congress.gov/product/pdf/IN/IN12106 [crsreports.congress.gov]).
  3. The Secretary’s COVID-19 PHE declaration was made pursuant to section 319 of the Public Health Service Act and is not impacted by HJ Res 7.

As such, terminating the National Emergencies Act declaration alone does not impact the Secretary’s COVID-19 PHE declaration or the Stafford Act declaration, or the flexibilities/waivers implemented pursuant to those declarations. An additional important note is that the 1135 waivers will not be terminated and will remain in place so long as: (1) either the National Emergencies Act or Stafford Act declaration is in place; and (2) the Secretary’s PHE declaration is in place.

A CRS Report detailing these three emergency authorities is available here: https://crsreports.congress.gov/product/pdf/R/R46379 [crsreports.congress.gov].