Using Presidential Power to Address the Opioid Epidemic

Health Update

Increased prescribing of opioid medications over the course of nearly two decades has led to widespread misuse of both prescription and nonprescription opioids.1 In 2018 alone, 10.3 million people misused prescription opioids, according to materials published by the Department of Health & Human Services (HHS). The effects of addiction to opioids has had devastating consequences. According to recent estimates, a reported 130 people die each day from opioid-related drug overdoses.2

In addition to the overwhelming human costs, overprescribing and misuse of opioids also damage the U.S. economy. A recent report released by the White House Council of Economic Advisors notes that the annual economic cost of the opioid crisis is in excess of $500 billion, resulting from mortality and morbidity.3

In response, states and localities are expending considerable time, resources and effort to combat the opioid crisis. As of September 2018, eight states have declared states of emergency, including Alaska, Arizona, Florida, Maryland, Massachusetts, Pennsylvania, South Carolina and Virginia.4 In addition, the federal government has taken steps to address the crisis, including the exercise of executive power typically reserved for natural disasters or diseases of pandemic proportion.5

Presidential Power to Declare Emergencies

The President has the ability to declare national emergencies under at least 100 statutory provisions, mostly during times of war.6 Under the Public Health Service Act, the President has the ability to declare a public health emergency if the Secretary of HHS determines that a “disease or disorder presents a public health emergency” 42 U.S.C. § 247d(a).

A public health emergency triggers the availability of certain authorities under federal law that enable federal agencies to take actions, such as accessing the Public Health Emergency Fund, temporarily reassigning certain state and local personnel, and waiving certain administrative requirements. See 42 U.S.C. 427d(b).

These authorities allow the federal government to increase support to and reduce administrative burdens on state and local governments and federal grantees affected by or responding to the public health emergency. They also supplement other federal efforts to address the emergency. While the Secretary of HHS may declare a public health emergency, the use of some authorities requires coordination with other agencies, including the Departments of Justice and Labor.7

Declaration of a Public Health Emergency

On October 26, 2017, President Trump exercised his power under 42 U.S.C. § 247d(a) to instruct the Secretary of HHS to declare a public health emergency to combat the opioid crisis.8 In its opening line, the President’s message intoned, “It shall be the policy of the United States to use all lawful means to combat the drug demand and opioid crisis currently afflicting our country.” The Secretary of HHS issued a declaration of a public health emergency to address the opioid crisis the same day.9

According to the Government Accountability Office (GAO), since declaring the opioid crisis a public health emergency, HHS, exercising its authority under the Public Health Service Act, has:

  • Waived the Paperwork Reduction Act, which allowed it to quickly field a survey of more than 13,000 healthcare providers to assess prescribing trends for a medication used to treat opioid use disorder and any barriers to prescribing it
  • Waived the public notice period for approval of two state Medicaid demonstration projects related to substance use disorder treatment, which is intended to speed up implementation of these projects
  • Taken steps to expedite support for research on opioid use disorder treatments and to disseminate information on opioid misuse and addiction

Authorities Unexhausted

In addition to the above-referenced authorities, the GAO identified 14 other authorities that became available as a result of the public health emergency that have not yet been used by the federal government. Examples of these include:

  • Access to national dislocated worker grants, which would allow the Secretary of Labor to award grants to states and local areas that have been impacted by the emergency
  • Application extensions and waiver of requirements for block grant funding, such as mental health and substance abuse block grant funds
  • Access to the public health emergency fund to take action to respond to a public health emergency, including making grants

HHS officials gave numerous reasons for not exercising certain authorities under the Public Health Service Act, including that certain authorities may be irrelevant to the circumstances presented by the opioid crisis.10

Moving Forward

It may be that HHS will choose to exercise these authorities in the future. A declared public health emergency lasts until the emergency no longer exists or for 90 days, whichever occurs first. See 42 U.S.C. § 247d(a). However, these emergencies can go on in perpetuity if renewed. With respect to the public health emergency declared to address the opioid crisis, the declaration has been renewed no fewer than six times, most recently on July 17, 2019.11 Accordingly, HHS has additional time to consider how the authorities available to it under the declared emergency may be used going forward.

1 See Dep’t of Health & Human Servs., What is the Opioid Epidemic, available at https://www.hhs.gov/opioids/about-the-epidemic/index.html.

2 Id.

3 W.H. Council of Econ. Advisors, The Role of Opioid Prices in the Evolving Opioid Crisis, available at https://www.whitehouse.gov/wp-content/uploads/2019/04/The-Role-of-Opioid-Prices-in-the-Evolving-Opioid-Crisis.pdf.

4 Nat’l Governors Assoc., Using Declarations to Address the Opioid Epidemic: Lessons Learned from States, available at https://www.nga.org/wp-content/uploads/2018/09/09-11-18-Issue-Brief-HSPS-Opioids-and-Emergency-Declarations.pdf.

5 See Office of the Asst. Secretary for Preparedness and Response, Public Health Emergency Declarations, U.S. Dep’t of Health & Human Services, https://www.phe.gov/emergency/news/healthactions/phe/Pages/default.aspx.

6 See Sierra Club v. Trump, 379 F. Supp. 3d 883, 899 (N.D. Cal. 2019) (citing A Guide to Emergency Powers and Their Use, Brennan Ctr. for Justice (2019), available at www.brennancenter.org/sites/default/files/legislation/Emergency%20Powers_Printv2.pdf).

7GAO-18-685R, Public Health Emergency for Opioid Crisis (Sept. 26, 2018), available at https://www.gao.gov/assets/700/694745.pdf.

8 82 Fed. Reg. 50305 (2017), available at https://www.federalregister.gov/documents/2017/10/31/2017-23787/combatting-the-national-drug-demand-and-opioid-crisis.

9 Dep’t of Health & Human Servs., Determination that a Public Health Emergency Exists, available at https://www.hhs.gov/sites/default/files/opioid%20PHE%20Declaration-no-sig.pdf.

10 GAO-18-685R, Public Health Emergency for Opioid Crisis (Sept. 26, 2018), available at https://www.gao.gov/assets/700/694745.pdf.

11 See U.S. Dep’t of Health & Human Servs., Public Health Emergency Declarations, available at https://www.phe.gov/emergency/news/healthactions/phe/Pages/default.aspx.