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Public Health Authorities in the Time of COVID-19

Date posted: Monday, August 3, 2020
Blog poster: Doug Farquhar, JD

NEHA received a question from a long-time member regarding the legal authorities to manage COVID-19. What are these authorities based on? How long do they last? What measures can be done under these authorities?

Public health authorities and powers vary depending on the type of emergency declared at the specific level of government. The federal government relies on the Robert T. Stafford Disaster Relief and Emergency Assistance Act or the National Emergencies Act (which triggers the Federal Emergency Management Agency). The U.S. Department of Health and Human Services (HHS) also has public health emergency authorities. For COVID-19, HHS Secretary Alex Azar declared a national public health emergency on January 27 based on these authorities.

States and tribes use either their emergency or disaster response authority or authorities granted to them under their jurisdiction's public health emergency act. Many (but not all) local governments have similar authorities. Some allow isolation/quarantine, while others provide for surveillance and reporting, and testing and screening in others. For example, eight states can restrict travel, and 12 prohibit price gouging.

Governors can declare public health emergencies based on laws passed by their legislatures that grant them this authority during emergencies. If an emergency is declared, these laws specify what actions the governor can implement and for how long. There is no uniform policy that states or local governments use that allows them to respond to an emergency. Each state or local government sets its own parameters and timelines when a public health emergency is declared.

As of today, every U.S. state, territory, and the District of Columbia has active public health emergency declarations. The National Governors Association is tracking the timing and status of these orders. On August, 21 of these declarations will expire with another seven to expire in September. In 14 states, these declarations are ongoing.

The Network for Public Health Law has written a primer for state and local governments on public health emergency responses to COVID-19.

About blog poster: Doug Farquhar is the Director of Government Affairs at the NEHA in Denver, Colorado.