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HHS Pressed on Next Crisis, Equity as Covid Emergency Lingers

Jan. 10, 2023, 10:30 AM

Health policy leaders say the Biden administration needs to ensure vulnerable populations are protected before it calls an end to the Covid public health emergency, which is set to renew this week for what may be the last time.

Despite Covid infections trending upward and a new variant threatening a surge, political pressure and public fatigue with masking and other measures are pushing the administration to relinquish its emergency powers.

GOP lawmakers have said it’s past time for the administration to call it quits on the public health designation that has granted the government regulatory flexibilities in an unprecedented time of crisis.

Not everyone is convinced.

“I don’t think that we’re ready, or that we’ve done what we need to do to make sure our public health agencies are equipped for what is continuing to unfold,” said Brietta Clark, a Loyola law professor specializing in inequality and health care law.

Health workers, the elderly, minority communities, and those unable to easily access Covid treatment and vaccines are among the groups that health policy experts say could get left in the dust should Biden’s Health and Human Services Department barrel onward without plans in place. They say part of the problem lies with Congress, where the current political climate complicates access to much-needed funding and policy changes.

The Covid emergency has been renewed by the HHS for 90-day periods since early 2020. The current declaration expires this week.

And while the HHS continues addressing the current pandemic, health experts say it also should be thinking about the next health emergency, widely viewed as inevitable.

“The big question is, how do we set ourselves up for the next pandemic,” said Dorit Reiss, a University of California Hastings College of Law professor. That means having “larger discussions” on “how we want to organize our pandemic response going forward.”

Public Health Problems

The administration’s public health emergency declaration opened the door to “things that were extraordinarily helpful” both in the pandemic and beyond, said Michael Leavitt, former HHS secretary in the George W. Bush administration.

Among those things were loosened restrictions on telemedicine, something Leavitt said had been debated for over two decades.

“It was maddening how many small gates there were that were protected by particular interests,” said Leavitt, now with the consultant group Leavitt Partners.

Now, unwinding the PHE means the administration is “at risk of throwing the baby out with the bath water,” and once again constraining the HHS’s powers within “the four corners” of the non-emergency statutes, Leavitt said.

The administration has yet to signal an end date to the public health emergency. However, President Joe Biden has remarked that the country’s Covid-19 pandemic was shifting. Republican state governors have urged the administration to allow the emergency to expire.

In unwinding the PHE, the “HHS has to balance the fact that, on the one hand, it’s not good practice to have an everlasting emergency; that emergency powers, by their very definition, should be for a limited duration,” said Wendy Parmet, director of Northeastern University’s Center for Health Policy and Law.

“They’re extraordinary, and the extraordinary should not be ordinary,” Parmet said. “That’s not good governance.”

On the other hand, “HHS has to understand that in the current political climate, its ability to get certain longer term reforms in the wake of Covid may be impossible,” she said.

In 2020, Congress coalesced around the worsening Covid emergency and passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Then, in 2022, Congress approved funding to create the Advanced Research Projects Agency for Health, or ARPA-H, which will focus on breakthrough medical technology.

The Biden administration “should be worried,” Parmet said, over whether “this particular Congress is going to step up” should things with Covid “get really bad again.”

“That leaves any administration to be overly reliant on emergency powers,” Parmet said. “We have this horrible choice between sort of barely doing anything or sort of pushing the boundaries of emergency powers.”

Protecting the Vulnerable

As the administration grapples with calling an end to the public health emergency, the US death toll from Covid hovers around 2,700 a week, according to Centers for Disease Control and Prevention data.

Over 470,000 cases were reported in the past week, the CDC reports, while the seven day average for hospitable admissions came in at about 5,500.

For Leon Rodriguez, who led the HHS’ Office for Civil Rights in the Obama administration, a critical question for the administration is “what are we going to do to protect vulnerable populations,” like the immunocompromised and elderly and those suffering from long Covid once the PHE lapses.

“There will need to be care in the drive to normalization, and the drive to shifting away from the investments that were made in vaccination, prevention, public messaging and all that, so we don’t sort of drop the ball on those that still need meaningful protection,” said Rodriguez, now a partner at Seyfarth Shaw LLP. He said state and local policymakers will likewise need to step up and address financial and public planning.

I’m “hoping that policymakers can harness the lessons that were learned and use those to meaningfully continue efforts to treat and reduce health disparities,” Rodriguez said.

Likewise, Clark said she hopes that the HHS considers “the groups that may be the hardest hit” when it unravels the pandemic state, as it could help determine how much the federal government needs to step in on health efforts.

While many health initiatives “are driven by state and local health” outfits, Clark said some local efforts “have not focused on health equity, and left marginalized populations quite vulnerable.”

And more broadly, what’s needed is “a sustained investment from Congress” for federal, state, and local agencies to be ready for the aftermath of this pandemic as well as the next, Clark said.

“I haven’t seen what kind of structural changes we’ve made to resist any change that puts us back in the situation we’re now exposed to,” she said.

To contact the reporter on this story: Ian Lopez in Washington at ilopez@bloomberglaw.com

To contact the editor responsible for this story: Brent Bierman at bbierman@bloomberglaw.com