7.1 The Role of the Federal Government in MSCC

Should incident needs severely challenge or exceed State, Tribal, and jurisdictional response capabilities, Federal resources may be called on to provide additional surge capacity and capability. When this occurs, Federal agencies and resources function in support of State, Tribal, and jurisdictional response efforts. When catastrophic events overwhelm State, Tribal, and jurisdictional response capabilities, Federal resources can be mobilized in advance of a formal request for assistance per the Catastrophic Incident Annex of the NRP; however, the proactive deployment of these resources is closely coordinated with affected State, Tribal, or local authorities.

The authority for Federal public health and medical response may come from a Presidential declaration of a major disaster or emergency (commonly known as a Stafford Act declaration), a declaration of an Incident of National Significance by the DHS Secretary, at the request of another Federal department or agency, or under the Public Health Service Act.

Robert T. Stafford Disaster Relief and Emergency Assistance Act: At the request of the Governor of an affected State, the President may declare a major disaster or emergency if an event is beyond the combined response capabilities of the State, Tribal, and jurisdictional governments. Among other things, this declaration allows Federal assistance to be mobilized and directed in support of State, Tribal, and jurisdictional response efforts. Under the Stafford Act, the President can also declare an emergency without a Gubernatorial request if primary responsibility for response rests with the Federal Government because the emergency involves a subject area for which the United States exercises exclusive responsibility and authority.
Incident of National Significance: The DHS Secretary, in consultation with other Federal departments and agencies, and the White House, as appropriate, may declare an Incident of National Significance.^[5] With this declaration, the Secretary of DHS implements any or all of the applicable coordinating structures and processes described within the NRP, as required by the incident.
Public Health Service Act: The Secretary of HHS has the independent authority under section 319 of the Public Health Service (PHS) Act, as amended, to declare a public health emergency. Following a section 319 declaration, the Secretary can, among other things, take appropriate actions in response to the emergency, such as conducting and supporting investigations into the cause, treatment, or prevention of the disease or disorder. The Secretary can also waive certain Medicare and Medicaid requirements to ensure sufficient health care items and resources are available to individuals enrolled in Social Security Act programs. The Secretary may use his/her discretion in determining whether an event is of sufficient severity or magnitude to warrant such a declaration. The Secretary has other authorities under the PHS Act that can be exercised independent of a declaration. The Secretary can make and enforce regulations to prevent the introduction, transmission, or spread of communicable diseases into the U.S., or from one State or possession to another; deploy personnel from the U.S. Public Health Service (USPHS) Commissioned Corps in support of public health and medical operations; provide public health and medical services; and provide for the licensure of biological products.

Federal public health and medical assistance consists of medical materiel, personnel, and technical assistance. These resources may provide response capability for the triage, treatment, and transportation of victims or persons with special medical needs; evacuation of patients; infection control; mental health screening and counseling; environmental health services; and other emergency response needs. Below is an example of the full range of support available through ESF #8. A variety of Federal public health and medical assets may be provided, including the following:

USPHS Commissioned Corps
National Disaster Medical System (NDMS)
Strategic National Stockpile (SNS)
Federal Medical Stations (FMSs)
Assets from the Department of Veterans Affairs (VA), the Department of Defense (DoD), and other Federal assets.
Medical Reserve Corps

ESF #8 involves supplemental assistance to State, Tribal, and jurisdictional governments in identifying and meeting the public health and medical needs of victims of major disasters or public health emergencies. This support is categorized in the following functional areas:

Assessment of public health/medical needs
Public health surveillance
Medical care personnel
Medical equipment and supplies
Patient movement
Hospital care
Outpatient services
Victim decontamination
Safety and security of human drugs, biologics, medical devices, veterinary drugs, etc.
Blood products and services
Food safety and security
Agriculture feed safety and security
Worker health and safety
All hazard consultation and technical assistance and support
Mental health and substance abuse care
Public health and medical information
Vector control
Potable water/wastewater and solid waste disposal, and other environmental health issues
Victim identification/mortuary services
Veterinary services.

In addition, the Federal Government may temporarily waive or modify certain normal requirements of Federal programs during a national emergency or disaster that is also a public health emergency to facilitate the delivery of public health and medical assistance. For example, Section 1135 of the Social Security Act authorizes the Secretary of HHS to temporarily waive or modify normal operating requirements of Medicare, Medicaid, or the State Children's Health Insurance Program (SCHIP) during a national emergency or disaster declared by the President that is also a public health emergency declared by the HHS Secretary (see below). This action ensures that affected healthcare providers who are unable to comply with certain Federal requirements because of a national emergency or disaster that is also a public health emergency, but who operate in good faith, are given sufficient flexibilities to continue providing services to beneficiaries and receive reimbursement for those services.

Waiving Healthcare Requirements in Hurricane Katrina

One way the Federal Government facilitates the delivery of medical care and public health services during a major emergency or disaster is by temporarily waiving or modifying normal operating requirements of Federal programs. For example, during the response to Hurricane Katrina, the Secretary of HHS, pursuant to Section 1135 of the Social Security Act, waived the following requirements: (Department of Health and Human Services, Waiver Under Section 1135 of the Social Security Act, September4, 2005)

Certain conditions of participation, certification requirements, program participation or similar requirements, or pre-approval requirements for individual healthcare providers or types of healthcare providers, including, as applicable, a hospital or other provider of services, a physician or other healthcare practitioner or professional, a healthcare facility, or a supplier of healthcare items or services
The requirement that physicians and other healthcare professionals hold licenses in the State in which they provide services, if they have a license from another State (and are not affirmatively barred from practice in that State or any State in the emergency area)
Sanctions under Section 1867 of the Act (the Emergency Medical Treatment and Labor Act, or EMTALA) for the redirection of an individual to another location to receive a medical screening examination pursuant to a state emergency preparedness plan or transfer of an individual who has not been stabilized if the redirection or transfer arises out of hurricane-related emergency circumstances
Limitations on payments under Section 1851(i) of the Act to permit Medicare Advantage enrollees to use out-of-network providers in an emergency situation
Sanctions and penalties arising from noncompliance with the following provisions of the HIPAA privacy regulations:
- The requirements to obtain a patient's agreement to speak with family members or friends or to honor a patient's request to opt out of the facility directory
- The requirement to distribute a notice of privacy practices
- The patient's right to request privacy restrictions or confidential communications.

The 1135 waiver typically ends with the termination of the emergency period, or 60 days from the date the waiver is first published unless the Secretary of HHS extends the waiver by notice for additional periods of up to 60 days. During Katrina, waivers for EMTALA and HIPAA requirements were in effect for a period not to exceed 72 hours from implementation of a hospital disaster protocol. The 1135 waiver applies only to Federal requirements and does not automatically apply to State requirements for licensure or conditions of participation.

The definition of an Incident of National Significance is provided in Appendix D.

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