State Emergency Declarations and COVID-19

March 05, 2020|12:49 p.m.| ASTHO Staff

View ASTHO's COVID-19 page for the latest emergency declarations.

As the spread of COVID-19 continues at an almost breakneck pace in the U.S, three governors have declared a state of emergency to free up resources and funds to slow and stop the spread of the virus. More are likely to follow in the coming day and weeks.

The additional powers and resources triggered by an emergency declaration vary from state to state and are a primary consideration for whether a state will declare an emergency. These powers and resources may include:

  • Activation of state emergency response plans and mutual aid agreements.
  • Activation of state emergency operations center and incident command system (ICS).
  • Authority to reallocate and expend funds towards the emergency.
  • Deployment of state personnel, equipment, supplies, and emergency stockpiles.
  • Receipt of out-of-state volunteer health professionals.
  • Activation of statutory immunities and liability protections for those involved in response activities.
  • Suspension and waiver of rules, regulations, or statutes.
  • Streamlining of state administrative procedures such as procurement requirements.

This week, California Gov. Gavin Newsom issued an emergency proclamation for COVID-19. Included in the proclamation are directives related to the procurement of resources for the COVID-19 response; the provision of services by out-of-state medical personnel; the use of state-owned properties and fairgrounds for the response; and the assistance to local governments impacted by COVID-19. The proclamation also authorizes the waiver, suspension, or alteration of various statutory provisions related to price gouging prohibitions; time periods for renewing local emergency proclamations; licensing requirements for health facilities that treat legally isolated COVID-19 patients; state and local laws related to the sharing of medical information; patient transportation to health facilities; and the licensing requirements for child and adult care facilities.

California follows Washington State and Florida, where governors declared states of emergency within one day of each other after a cluster of cases appeared.

Washington Gov. Jay Inslee proclaimed a statewide State of Emergency for COVID-19 on February 29. The proclamation directs that the “plans and procedures of the Washington State Comprehensive Emergency Management Plan be implemented” and that state agencies and departments use “state resources and to do everything reasonably possible to assist affected political subdivisions in an effort to respond to and recover from the [COVID-19] outbreak.” The governor also ordered the state’s national guard into active service and to aid in the response as necessary. Finally, the Washington State Department of Health and other state agencies are directed “to identify and provide appropriate personnel for conducting necessary and ongoing incident related assessments.”

The next day, Florida Gov. Ron DeSantis also signed an executive order establishing a COVID-19 response protocol and directing the state health officer (SHO) to declare a public health emergency in the state. The SHO is also directed to “take any action necessary to protect the public health” and to follow CDC guidelines in establishing protocols to control the spread of COVID-19 and educate the public on prevention. The Florida Department of Health (FDH) is designated as the lead agency to coordinate emergency response activities among state agencies and local governments. FDH is instructed to actively monitor, at minimum, all persons falling under CDC’s Person Under Investigation (PUI) definition for at least 14 days or until the PUI tests negative for COVID-19. The order sets out minimum requirements for active monitoring (e.g., risk assessment within 24 hours of learning of PUI, twice-daily temperature checks). FDH is also instructed to ensure that all PUIs are isolated or quarantined for 14 days or until the PUI tests negative for COVID-19. Finally, all executive agencies are directed to cooperate with FDH.

Many factors will play into a state’s decision to declare an emergency. How severe is the disease outbreak in the state? What powers and resources are triggered by an emergency declaration? Are these added powers and resources necessary to address the situation or can the state adequately respond without a declaration? In thinking through an emergency declaration, states will also want to:

  • Identify the state statutory requirements for declaring emergencies in your state.
  • Understand who can declare emergencies, under what circumstances, and the powers that do/do not flow from this declaration.
  • Understand the procedures for implementing and the implications of declaring local or regional emergencies within the state and how these compare to statewide emergencies.
  • Identify and understand how state requirements are modified when there is a federally declared emergency.
  • Understand the legal and programmatic implications where there is no state declaration of emergency but there is a federal declaration of emergency.
  • Identify and communicate to relevant audiences the effects of emergency declarations and any changes to regulatory or programmatic activities because of the declaration.

Often, states can address the spread of disease without a formal emergency declaration. For example, a SHO may have the existing authority to abate the causes of disease and order isolation and quarantine. Depending on the circumstances, these existing powers may be enough to adequately respond to the public health threat. When conditions warrant, all states have mechanisms that allow government officials to declare a state of emergency, which activate powers and resources that are unavailable during non-emergencies. A state’s governor is often the official who declares an emergency by issuing an executive order or other declaration to that effect. A declaration will typically include effective dates or a duration, geographic areas covered by the declaration (e.g., the effected counties or statewide), a summary of the conditions giving rise to the emergency, and directives to state agencies participating in the emergency response.

Beyond state emergency declarations, many local governments have the authority to declare emergencies within their jurisdiction and federal law gives the president (e.g., Stafford Act and the National Emergencies Act) and other federal officials (e.g., Public Health Service Act Section 319, Social Security Act Section 1135, and Public Readiness and Emergency Preparedness Act [PREP Act]) the authority to declare emergencies under specific conditions. The federal emergency declarations can result in many different actions, including:

  • Federal assistance to states in the form of financial, personnel, services, logistical, and technical assistance.
  • Triggering emergency provisions in other laws.
  • Providing immunity from liability (except for willful misconduct) for claims related to the administration or use of emergency countermeasures.
  • Easing regulatory requirements on individuals, organizations, and state and local governments (e.g., waivers to HIPAA or EMTALA requirements).
  • Activating the National Response Framework, National Incident Management System, and other emergency response protocols and systems.

During the current COVID-19 outbreak, as some states choose to declare an emergency, neighboring states may not. While this may look as though states are acting inconsistently, it’s important to remember the factors discussed above and how they impact a state’s decision of whether to declare an emergency.