On January 21, President Biden signed eight COVID-19 related executive orders (EOs) and one presidential memorandum, which are likely to be followed by additional healthcare-related EOs and other activity in the following weeks. The new EOs cover a range of topics, from reviewing and strengthening the supply chain in advance of invoking the Defense Production Act, to public health measures for public transportation, to setting up a Pandemic Testing Board. The presidential memorandum addresses state resources, directing the Secretary of Defense and the Secretary of Homeland Security to extend federal support for Governors’ use of the National Guard in COVID-19 response.
What’s In the EOs?
The EOs largely track elements of the administration’s National Strategy for the COVID-19 Response and Pandemic Preparedness (the “Plan”), which was released the same day as the EOs. Many of the Plan’s elements reflect ASHP recommendations and outreach to policymakers, particularly those related to supply chains, access, and transparency, so we are pleased that many of the new EOs also center on these issues.
1. Ensuring a Data-Driven Response to COVID-19 and Future High-Consequence Public Health Threats: This EO focuses on expanding and improving public health infrastructure to help “prevent, detect, and respond to future biological threats, both domestically and internationally.” The EO requires agencies to designate a lead on data. Agency leads will work with the White House COVID-19 Response Coordinator to share information and to ensure public health data on COVID and other threats is publicly available. Additionally, the Department of Health and Human Services (HHS) must review existing public health data systems used in response to threats such as COVID-19, and issue a report summarizing findings and making recommendations for improvement.
2. Promoting COVID-19 Safety in Domestic and International Travel: The EO creates new public health measures for public transportation and for international travelers. It directs HHS, the Department of Transportation, the Department of Homeland Security, and other relevant agencies to take action (e.g., rulemaking or guidance) to require mask-wearing in accordance with the Centers for Disease Control and Prevention (CDC) guidelines on public transportation, including in airports and on commercial aircraft, trains, public maritime vessels (e.g., ferries), and intercity bus services. The agencies are also directed, in consultation with CDC, to establish any additional public health measures they deem necessary. Finally, within 14 days of the EO, the agencies must begin implementing new restrictions on international travelers - requiring a negative COVID-19 test and enforcing CDC-recommended self-quarantine periods.
3.Improving and Expanding Access to Care and Treatments for COVID-19: The EO is three-pronged, touching on clinical research, increasing healthcare capacity, and improving care access, directing:
- HHS and the National Institutes of Health to develop a plan supporting “a range of studies, including large-scale randomized trials, for identifying optimal clinical management strategies, and for supporting the most promising treatments for COVID-19 and future high-consequence public health threats” and supporting clinical research in rural areas, including populations that are often underrepresented in clinical trials.
- HHS, the Department of Veterans Affairs (VA), and the Department of Defense (DoD) to provide “targeted surge assistance to critical care and long-term care facilities. Additionally, agencies must consider additional support for veterans and Tribal nations, and HHS must provide recommendations on how states might expand their healthcare workforce capacity and meet the long-term care needs of patients recovering from COVID-19.
- HHS, DoD, and VA to "establish targets for the production, allocation, and distribution of COVID-19 treatments” and require HHS to evaluate payor coverage of COVID-19 treatments and make changes to “promote insurance coverage for safe and effective COVID-19 treatments and clinical care.
4. Sustainable Public Health Supply Chain: This EO allows federal agencies to invoke the Defense Production Act, a law that allows the government to direct the production of certain products (companies are paid for production) in order to address urgent needs. Federal agencies must work collaboratively to assess current supply and identify immediate needs, determine if any additional authorities are required to prevent price-gouging or hoarding, and, within 180 days, produce a report detailing a national supply chain resilience strategy for pandemics and biological threats. The EO also directs HHS to facilitate access to the Strategic National Stockpile for Tribal governments and health authorities and the Indian Health Service.
5. Ensuring an Equitable Pandemic Response and Recovery: Focused on addressing the disparate impact of COVID-19 on people of color and underserved populations, the EO directs HHS to establish a COVID-19 Equity Task Force, which will include agency leaders and up to 20 non-federal representatives appointed by the president. All agencies with responsibility for pandemic response will coordinate with the task force on data collection related to equity and recommendations to improve future response.
6. Supporting the Reopening and Continuing Operation of Schools and Early Childhood Education Providers: To facilitate the safe opening of schools, HHS and the Department of Education are directed to work collaboratively to develop evidence-based national guidelines for reopening of elementary and secondary schools, as well as colleges and universities, to in-person learning. The EO also directs HHS to ensure COVID-19 testing supplies are “equitably allocated” to elementary and secondary schools, Head Start programs, and child care workers, to provide technical assistance to daycare and other childcare providers regarding safe operating procedures, and, to the extent possible, to support the development and operation of contact tracing efforts for schools and childcare providers.
7. Protecting Worker Health and Safety: The EO directs agencies to take steps (e.g., guidance or rulemaking) to strengthen worker protections and to develop “evidence-based guidance to help keep workers safe from COVID-19 exposure, including with respect to mask-wearing; partnering with tate and local governments to better protect public employees; enforcing worker health and safety requirements; and pushing for additional resources to help employers protect employees.”
8. Establishing the COVID-19 Pandemic Testing Board and Ensuring a Sustainable Public Health Workforce for COVID-19 and Other Biological Threats: The EO establishes a federal Testing Board and a new public health workforce program:
- COVID-19 Pandemic Testing Board: The COVID-19 Pandemic Testing Board will be chaired by the White House COVID-19 Response Coordinator and include representatives from executive departments and agencies (there are no non-governmental members). The Testing Board will have a broad remit, “coordinat[ing] federal government efforts to promote COVID-19 diagnostic, screening, and surveillance testing,” including making recommendations for improvements and expansion of testing. The EO also directs HHS to review payor coverage of COVID-19 testing and take action (e.g., guidance or rulemaking) to ensure access and coverage (the CARES Act and other COVID-19 legislation already require coverage of testing without out-of-pocket costs for insured patients and full coverage for uninsured patients).
- U.S. Public Health Job Corps: In addition to requiring HHS to undertake a review of contact tracing efforts and challenges to recruiting sufficient healthcare personnel, the EO direct HHS, in consultation with other agencies, to establish a new public health workforce program, the “U.S. Public Health Job Corps,” which will be modeled on the FEMA Corps program and may be part of the National Civilian Community Corps. The Public Health Job Corps will be tasked with responding to COVID-19 and other pandemics by conducting and training contact tracers, assisting in vaccination efforts, including clinic administration, assisting with state local testing training programs, and “other necessary services.” The EO does not provide any information regarding the funding for the new Public Health Job Corps, so congress may need to provide appropriations for its operations.
What’s In the Memorandum?
In addition to the EOs, the president also signed a presidential memorandum, “Memorandum to Extend Federal Support to Governors’ Use of the National Guard to Respond to COVID-19 and to Increase Reimbursement and Other Assistance Provided to the States." focused on supporting state and local governments in their COVID-19 response. The executive branch does not exercise direct control over states and Congress retains the power of the purse, so rather than directing states to take action or directly allocating funds to the states, the presidential memorandum relies on executive authority to increase federal support for state COVID-19 response efforts. Specifically, the memorandum directs the Secretaries of DoD and DHS to allow states to call on the National Guard for COVID-19 response, and to allow FEMA to reimburse 100% of those National Guard costs until September 30, 2021. This shifts costs from states to the federal government without requiring legislative action. The memorandum also allows 100% FEMA reimbursement for assistance to states, local governments, and Tribal authorities “to provide for the safe opening and operation of eligible schools, child-care facilities, healthcare facilities, non-congregate shelters, domestic violence shelters, transit systems, and other eligible applicants -- includ[ing] funding for the provision of personal protective equipment and disinfecting services and supplies.”
ASHP will be closely monitoring agency activity implementing the EOs. ASHP will keep members updated as new information becomes available. Any questions or concerns about the EOs should be directed to Jillanne Schulte Wall, ASHP Senior Director of Health & Regulatory Policy, at email@example.com.