Proceedings of a Workshop—in Brief

Optimizing Federal, State, and Local Responses to Public Health Emergencies: Lessons from COVID

Proceedings of a Workshop—in Brief

The COVID-19 pandemic raised challenging legal and policy issues—as reflected in numerous, often inconsistent, health-related decisions made in the United States at the national, state, and local level and in COVID-related judicial opinions issued after the onset of the pandemic. The response to the pandemic provides an opportunity to consider whether federal, state, and local governments had the necessary authority to deal with the crisis, how authority was applied, whether there was sufficient clarity as to responsibility, and what should be changed for the future.

On May 30–31, 2024, an ad hoc committee under the auspices of the National Academies of Sciences, Engineering, and Medicine’s Committee on Science, Technology, and Law (CSTL) convened a virtual workshop to examine the allocation of responsibility among levels of government when dealing with a public health crisis; the extent to which federal, state, and local governments have the necessary authority to act; whether there is sufficient clarity as to which levels of government are responsible for particular actions; and lessons that can be learned from the pandemic to inform government responses to pandemics in the future.

At the workshop, Harold Varmus (Weill Cornell Medicine), co-chair of CSTL, welcomed participants, noting that the pandemic provides a vivid illustration of the intersection of science and law. The pandemic, he said, highlighted “three broad questions that essentially plague all democracies and…federated systems when they are in crisis mode.” The first relates to the coordination of distributed authorities when dealing with diseases that do not respect the boundaries of authorities. The second involves finding the right balance between respect for individual autonomy and the need to protect communities. The third is how to deal with partisanship—especially heightened partisanship—when public health crises arise.

Planning committee co-chair Georges Benjamin (American Public Health Association) noted that the Federal Emergency Management Agency (FEMA) defines the national preparedness goal as “a secure and resilient nation with the capabilities required across the whole community to prevent, protect against, mitigate, respond to, and recover from the threats and hazards that pose the greatest risk.”¹ COVID, he said, was a major test of this goal for the nation and the world. While there were successes (e.g., the development and distribution of vaccines in record time), there were huge disparities in health outcomes. COVID is an ongoing health threat,

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and the public health system is actively addressing other infectious outbreaks, including a multi-state outbreak of H5N1 avian influenza in dairy cows. Better understanding of what happened during the pandemic can empower our systems to be prepared for new health threats.

Erwin Chemerinsky (University of California, Berkeley School of Law), Benjamin’s co-chair on the planning committee, said that COVID will not be the last public health crisis and that, while there are many things to be learned from the experience, the workshop’s focus is the allocation of decision-making authority. Chemerinsky concurred with the opinion of public health scholar John Barry that the potential for the H5N1 virus to “ignite another human pandemic” provides one more reason for government and public health preparedness to “fight the next war, not the last one.”²

OPTIMIZING FEDERAL, STATE, AND LOCAL PUBLIC HEALTH PREPAREDNESS

Planning committee member Umair A. Shah (Washington State Department of Health) moderated the first panel session. Our ability to bring an end to an emergency improves when we invest in systems and work across borders, he said, noting that the panelists’ experiences as a clinician, government official, and researcher intersect at two vantage points: vertically across the federal, state, and local levels and horizontally across public health, health care, and civil society.

Aisha Brooks (U.S. Public Health Service [USPHS]) noted that nurses are the largest group of professionals in health care and the backbone of the nation’s disaster response. During the pandemic, issues such as chronic illnesses, injuries, and natural disasters also needed attention. Public health nurses supported alleviation of immediate needs, identification of the most vulnerable populations, and allocation of resources where they were most needed. While nearly all PHS nurses were deployed, state-level licensure requirements prevented some PHS nurses from being able to deploy to support non-federal healthcare organizations. Brooks called for upskilling and cross-training to allow licensed health care professionals to operate at the top of their scopes of practice.³ When she met with nursing organizations across the country, nurses spoke of the pandemic’s physical and emotional toll. There must be an intentional effort to support workforce recovery at the individual, community, and larger societal levels, she said.

Joshua Sharfstein (Johns Hopkins Bloomberg School of Public Health) said that, during the initial phases of pandemic, state and local authorities had trouble engaging with the federal government. The White House Coronavirus Task Force was established to oversee the Trump Administration’s public health efforts, but it failed to coordinate adequately with relevant agencies. There was a disconnect between the Food and Drug Administration (FDA) and Centers for Disease Control and Prevention (CDC) regarding, for example, vaccine recommendations. A disconnect also existed between federal and state officials in capturing and reporting COVID data. Some CDC guidance was widely adopted at the state and local levels while other guidance was ignored. Poor coordination and inconsistency between jurisdictions “created chaos and made it harder for people to feel confident about what to do to protect themselves,” Sharfstein said.

Sharfstein called for the development of a framework to structure how federal, state, and local governments work together during emergencies like pandemics, noting that a Commonwealth Fund Commission report recommended that Congress establish a position, such as an undersecretary for public health at the U.S. Department of Health and Human Services (HHS), to ensure alignment of all HHS components, as well as a council to coordinate federal public health action with states, localities, tribes, and territories.⁴ He said that that there are several options for such a framework. A centralized approach would be one option. He noted that, in other countries, frameworks exist where the federal government makes decisions that localities follow. Alternatively, a framework might be employed where everyone makes their own decisions—an approach taken during the pandemic with uneven results. He suggested as a compromise a model where the federal government provides a range of reasonable choices given

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the evidence. State and local entities would, in turn, select from among the options as a condition of access to federal funding for pandemic response.

Tener Veenema (Johns Hopkins Bloomberg School of Public Health) discussed research on major challenges and barriers to the integration of primary care, public health, and community-based organizations (CBOs) in emergencies. A 2021 report by the Johns Hopkins Center for Health Security found that the failure to bring primary care providers (PCPs) into frontline roles alongside public health responders resulted in missed opportunities to save lives.⁵ Funding instability and limitations, fee-for-service models, data ownership, and privacy issues were identified as barriers to greater coordination among primary care, public health, and CBOs. Training the heath workforce in “silos” and an erosion of public trust in public health and science further hamper coordination. A report issued by the center in 2024 identified and prioritized changes in federal laws and policies to improve health care delivery in everyday use and emergencies.⁶ Primary care payment reform is necessary but insufficient by itself to integrate primary care, public health, and CBOs, although some state-based funding and payment reform experiments show promise. The most promising report recommendations address building a robust and resilient workforce through collaboration.

Discussion

Shah asked how to move forward toward stronger vertical integration across the federal, state, and local levels and horizontally across public health, health care, and civil society. Brooks pointed to gaps in data collection, especially for health and social determinants of health. Lack of data interoperability makes it difficult to deploy resources where they are most needed. Brooks also called for greater awareness and communication of legal authorities, HHS waivers to modify regulatory and other requirements, and system flexibilities. To Sharfstein, barriers to greater integration include politics, law, culture, and vision: it is hard for political opponents to coordinate and there are limited legal structures binding the public health system together. Veenema said a barrier to integrating primary care and public health boils down to “how are we going to pay for it.” She suggested that the Centers for Medicare and Medicaid Services (CMS) require that states allocate a percentage of their budgets toward integrating primary care and public health; expand 1115 Medicaid waivers to include CBOs and health workers; and provide additional support for Medicaid Innovation Centers.⁷

Veenema observed that the pandemic revealed the constraints of state-based licensure in mobilizing the workforce, asking, “As we prepare for the next pandemic, what can we fix now to deploy health workers to hot spots in a timely and effective manner?”

Sharfstein said that the National Academies or another entity could begin the effort to create the framework he described, but that implementation would require Congressional legislation.

To involve the community and ensure adequate resources for public health, Brooks stressed empowering communities to identify their priorities and “meeting communities where they are” before emergencies occur. Integrated care models and cross-sector approaches created out of necessity during the pandemic represent the type of innovations needed as we move forward.

THE COVID-19 PANDEMIC: WHAT HAPPENED? WHAT WENT RIGHT? WHAT WENT WRONG?

Benjamin moderated a session that explored the experience of the pandemic by federal, state, and local officials and the importance of strategic communications.

Perspectives from Federal Officials

Deborah Birx (George W. Bush Institute) reflected on the pandemic’s early days when she served as the White House Coronavirus Response Coordinator. She described positive actions that included: a comprehensive partnership between the federal government and private sector that accelerated COVID testing, personal protective equipment (PPE), treatments, and vaccines; long-term

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funding for the National Institutes of Health (NIH) that laid the groundwork for production of vaccines; telehealth; and nimble FDA emergency-use authorization processes. Operation Warp Speed⁸ illustrated the value of public-private partnerships.

Challenges during the pandemic included that the surveillance system, which was based on symptoms, rather than definitive laboratory diagnoses, meant that respiratory diseases were not (and are still not) definitively diagnosed. Birx observed that there was a lack of behavioral research related to vaccine hesitancy; poor communication about the evidence base supporting public health guidance, a lack of consistent communication on the state of the pandemic and poor communication about vaccine effectiveness; lack of community engagement; lack of rural health care systems; lack of culturally appropriate support to Tribal nations; and persistent “magical thinking” instead of data-driven decisions. “Transparency really matters,” she emphasized.

Ashish Jha (Brown University), one of Birx’s successors as White House Coronavirus Response Coordinator, said that, while pandemics may not be preventable, better preparation minimizes disruption and death. One important tool is the National Waste Water Surveillance System (NWSS), which was launched in September 2020 “to coordinate and build the nation’s capacity to track the presence of SARS-CoV-2, the virus that causes COVID-19, in wastewater samples collected across the country.”⁹ If NWSS existed in February 2020, there could have been a different response because detection could have occurred in localities sooner. Investment in research into priority pathogens and the pathogenicity of novel viruses is important because “there is no assumption that we can build a vaccine [for the next pandemic] overnight,” and progress made in domestic manufacturing of PPE, testing supplies, and other materials will be hard to sustain absent demand and funding.

Perspectives from State Officials

Thomas Dobbs (University of Mississippi) served as the State Health Officer for the Mississippi State Department of Health during the pandemic. He said that “in some ways, after the pandemic, especially on the local level, we are much less prepared for a pandemic then we were previously.” Personnel infrastructure has been weakened, as long-time employees have left. Financial incentives to serve in public health are insufficient, and informatics and procurement barriers persist.

Dobbs emphasized the value of trusted voices and local partnerships. The Mississippi director of health equity was placed in a command-level post within the incident command structure, and his existing community connections made a difference. Survey responses of community members, with a focus on minority populations, shaped how testing, treatment, and vaccines were offered. Black pastors and other leaders, as well the Mississippi Immigrants’ Rights Alliance, were involved. As an example of impact, by early 2022, Black Mississippians were more likely to survive COVID than White Mississippians because of their higher vaccination rates.

Jill Hunsaker Ryan (Colorado Department of Public Health and the Environment) noted that a unique aspect of COVID was the magnitude of asymptomatic spread. Colorado developed a data-driven response: policy decisions were based on daily reporting of hospital capacity, number of reported cases, and other metrics. The governor received daily briefings on these data to develop strategy with a clearly stated goal “to protect hospital capacity while balancing economic and social well-being.”

Regarding guidance from the CDC, Hunsaker Ryan said, “to be honest, it felt like states were on their own, at least initially.” Local agencies were frustrated with state agencies: initially they felt out of the loop, although, over the course of the pandemic, communications and coordination improved. She said that misinformation affected the public’s perception of science and public health, noting that, despite the use of outreach workers and influencers and the setting up of pop-up immunization clinics, overall immunization levels declined.

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Discussion

Benjamin asked how to “keep the [public health] infrastructure warm.” Jha pointed to national defense as a useful analogy: national security threats and responses are continually anticipated through practice, drills, and testing, which does not happen with public health. Hunsaker Ryan said that, in Colorado, “We were cold in 2020” and needed to fill 1,000 full-time public health staff positions (plus positions for contractors). Nevertheless, because of what happened during the pandemic, emergency responses in Colorado are now coordinated across divisions and agencies.

Planning committee member Jay K. Varma (SIGA Technologies, Inc.) asked about building support for public health and awareness of agencies’ limits and authorities. Hunsaker Ryan looks for ways to project credibility in the media but acknowledged that it is hard to say what you have prevented. Dobbs said that the relationship between public health and politics can be a struggle: while he advised the governor, the governor held the authority to coordinate policy and act.

Perspectives from Local Officials

Allison Berry (Clallam and Jefferson Counties, Washington) said that “Our first lesson was getting subject matter experts involved early.” When COVID appeared in January 2020, a unified command structure was established. An important lesson related to the prioritization of care for vulnerable populations. Low-income residents had to earn wages, and Clallam was one of the first counties to pay workers to stay home. Residents asked, “Will you care about us after the pandemic?” For Berry, this is a critical question to carry forward.

Berry said that selecting trusted messengers is important. She took questions from the public during daily (and later weekly) briefings. One stringent requirement was to respond apolitically: “We described the science, they [politicians] made the decisions,” she said.

Rebecca Sunenshine (Maricopa Country, Arizona) said that it was very helpful to public health officials when CDC and other agencies used tools such as summaries of recent literature to effectively communicate the rapidly changing science and when CDC provided local and state public health agencies with advanced notice about guidance. She urged that lessons learned about decreasing disease spread (short of a complete shutdown) be applied, noting that shutdowns disproportionally affect lower-income people and students. Flexible funding is needed to maintain the public health system. Sunenshine said that contact tracing was less effective and efficient with COVID than, for example, for sexually transmitted diseases. Other population-level strategies, such as mask requirements, require fewer resources and are more effective for managing the wide spread of respiratory infectious diseases. Sunenshine said that the public needs to be prepared to understand that information will constantly change: “We are not going to know everything up front,” and public health officials need to do a better job messaging that.

Perspectives from Communicators

Joe Smyser (Public Goods Project) related that a family member died of COVID-19 and that, because of distancing restrictions, he could not be present to support his relative during illness and death. Families of 1.2 million Americans have had similarly traumatic experiences and associated mental health impacts. A public reckoning for unresolved trauma among family members and other survivors has not occurred.

Smyser said that public health agencies should be familiar with their area’s top employers and work with their wellness programs to build relationships before emergencies arise. He said that pandemics are political, “which we don’t teach in schools of public health and often don’t think about when we go into work.” He called for investment in health communications and research and for protection from harassment for the public health workforce at the organizational and individual level.

Elizabeth Perez (Washington State Department of Health) said that “longstanding issues of underinvestment in health literacy and communication efforts in the public health system, compounded by upstream social inequities” make the work of public health officials very challenging. Communicators must be equipped before there is a public health emergency, with communications aligned across all sectors. Both misinformation and disinformation shaped the narrative around COVID, leading to skepticism and noncompliance with public health

measures.¹⁰ “We must also learn to look, listen, and be humble,” she said, emphasizing that it is vital to advocate for the health communications workforce to political and community leaders.

Discussion

Berry said that losses underscore the need to be humane and to avoid both overconfidence and overcautiousness. Human beings need human interactions—and we must find ways to conduct them safely. Sunenshine emphasized the need to balance individual liberties against efforts to limit disease transmission within a community. Perez is concerned about community recovery as COVID investments end: “I have deep concerns that we pushed the pedal and are now putting on the brake.” Planning committee member Tara Sell (Johns Hopkins Bloomberg School of Public Health) asked Perez how to scale community engagement. Perez pointed to Washington State’s Community Collaborative as an example, explaining that it began with COVID but now tackles climate change and many other issues: “We have created the fabric” that will help build emergency preparedness and resiliency, she explained.

PUBLIC HEALTH EMERGENCY AUTHORITIES

The third panel session, moderated by Jay K. Varma, considered public health authorities before, during, and after the pandemic.

Pandemic Orders and Religious Liberty

Wendy E. Parmet (Northeastern University School of Law) focused on litigation around religious liberty. Indoor religious services were initially viewed as “super-spreader” events due to lengthy exposure to others and the presence of singing and chanting. By July 1, 2022, at least 143 judicial decisions related to religious worship were issued. Officials based their authority to regulate religious gatherings on three Supreme Court cases: Jacobson v. Massachusetts (1905), Employment Division v. Smith (1990), and Church of Lukumi Babalu Aye v. Hialeah (1992),¹¹ decisions which suggested that public health officials had the authority to impose restrictions on religious gatherings, so long as they did not do so with animus or the intent to discriminate against worship. Legal decisions early in the pandemic supported this assertion. However, in subsequent decisions, courts imposed limits on the authority of public health officials to restrict religious gatherings. Cases such as Roman Catholic Diocese v. Cuomo (2020),¹² Tandon v. Newsom (2021),¹³ and Fulton v. Philadelphia (2021)¹⁴ have important implications for religious liberty and public health, Parmet said: the first is that the tradition of deference to public health officials during an emergency is gone; a second is that some judges seemed to pay little attention to public health evidence; a third relates to whether exemptions for religious activity are required (case law seems to be pushing in this direction); and a fourth is whether health is a compelling state interest. She suggested that it may be the case that reducing the risk of transmission is no longer being considered a compelling state interest.

New York City Vaccine Mandates: Who Has the Authority?

Kapil Longani (State University of New York), chief counsel to the mayor of New York City during the pandemic, discussed three issues that emerged between the city and New York state: 1) achieving clarity on the role of each level of government in a crisis; 2) ensuring that emergency measures don’t outlast an emergency; and 3) consistent enforcement of emergency orders. “We need to reimagine how the federal, state, and local governments integrate their responses for the next major emergency,” he said. “To that end, we need a thoughtful training protocol so that the federal government,… state government, and localities can align their unique emergency powers in a manner that is coordinated and focused.”

Longani said an argument could be made that, for certain functions, different levels of government should take the lead in an emergency, as the federal level has the broadest power, states have police powers, and localities are closest to the populace. Though history has shown that the federal government can over-react to maximize its powers, during the pandemic, the federal government did not test all the limits of the emergency powers it has,

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such as under the Public Health Services Act (PHSA).¹⁵ Longani said that sections of New York State Executive Law state that local government should be the first line of defense in an emergency and that governors can declare a state of emergency on their own initiative. In New York, this resulted in conflicting executive orders and confusion, at times, among New Yorkers as to what the law required in New York City. Enforcement of emergency orders must be clear and consistent, and state laws must be revised to bring clarity regarding the enactment of emergency mandates as well as clarity for what level of government has the primary responsibility to enforce those laws.

The Experience with Public Health Emergency Authorities Before, During, and After COVID-19

Looking back at four public health emergencies, Gene Mathews (University of North Carolina) observed that two elicited a cohesive cultural response (the Salk polio vaccine and 9/11) and two were culturally divisive (AIDS and COVID). Matthews suggested that COVID was divisive because public health’s “political skillset” has declined from a century ago when public health officials were very savvy politically; public health is “out-competed” for resources; and public health infrastructure has been hollowed out. Culture has also changed over time: in the 21st century, public health must reach out to divided communities and work with leaders of both parties.

As part of an effort called “Fighting for the Public’s Health,” Matthews and colleagues have identified actions to strengthen public health advocacy including: developing and advocating for pro-health policies; cultivating friends of public health; training the current and future workforce on advocacy skills; and strengthening state-level advocacy.¹⁶

The Future of Public Health Authority at the Federal, State, and Local Level

Lindsay Wiley (University of California Los Angeles School of Law) said that legal challenges to COVID mitigation orders that were based on religion, separation of powers, and lack of statutory authority were the most successful for plaintiffs. As state legislatures are not suited for day-to-day management of emergencies, powers are delegated to the executive. Most emergency response laws were developed for other contexts, such as terrorist events, that tend to be of shorter term and/or localized. Courts blocked several CDC orders, such as one that imposed a moratorium on evictions during the pandemic emergency, citing a lack of statutory authority by the CDC under the PHSA. Decisions limiting the scope of federal public health powers have—at best—a chilling effect and—at worst—give those who disagree with these powers more tools to strike down executive actions, Wiley said.

Wiley said that most governors relied on public health codes and emergency or disaster laws to address the pandemic. In the pandemic’s second and third years, many more legislatures passed laws related to public health authorities. Wiley suggested that, in states that rolled back the statutory authority for emergencies, the public’s health in future crises will depend on the willingness of state legislators to act swiftly and reverse the laws currently on the books, but that, in all jurisdictions, the public’s health will be at the mercy of the courts.

Discussion

Wiley said that, while each emergency is different, interagency coordination between state and federal authorities must be addressed. Parmet identified one effect of the post-COVID legal environment: recognizing that legal powers are not a “magic bullet” could result in public health agencies seeking more buy-in and engagement with communities to build trust. She added that some pandemic-related court cases were the culmination of decades-long pushes to expand religious liberty and reduce executive power. To be successful in court, public health needs a long-term strategy.

Longani called for a thoughtful training protocol for officials: “What was shocking was how little people know about the emergency powers they had to solve major problems.” He and colleagues documented their actions for the benefit of future public servants. Wiley identified the tension between raising the alarm for future emergencies and preserving leeway for agencies to move effectively in response to future threats under existing precedents. Broad legislative language related to public

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health authorities “could be a feature, not a bug,” she said, because local conditions vary.

EXPLORING ROUTES AND BARRIERS TO EFFECTIVE PUBLIC HEALTH RESPONSE EFFORTS DURING THE COVID-19 PANDEMIC

The workshop’s fourth panel session, which explored pandemic response in the context of deeply held beliefs and values as well as the effect of legal and regulatory barriers on real-time response, was co-chaired by planning committee members Jessica Castner (University of Albany and Castner Incorporated) and James G. Hodge, Jr. (Arizona State University).

Integrating Deeply Held Beliefs and Values in an Effective Public Health COVID-19 Responses

Amy Acton (former director, Ohio Department of Health) discussed values and beliefs in the context of working alongside Ohio’s governor. Ohio’s daily COVID press conferences became an opportunity where “we were all showing up in one space together” to “tell you what we know as we know it.” A New York Times analysis of seven weeks of these conferences revealed several value-based themes.¹⁷ First, “you had to own the emergency.” Second, tell the truth, so people can take action, she said. A third theme related to vulnerability: the Ohio governor and leaders talked about the emotional toll on society of the pandemic. A fourth theme was empowerment. Residents shared art and other reactions, which was very empowering, and stories were shared about neighbors helping neighbors. She recommended moving forward intentionally to create solidarity and social cohesion: “A big task ahead is to mourn and make meaning and memorialize. [These are] three ‘M’s’ we will have to intentionally do if we want to build that cohesion.”

Abigail Echo-Hawk (Urban Indian Health Institute and Seattle Indian Health Board) shared experiences from the perspective of a Federally Qualified Health Center in Seattle (the first COVID epicenter in the United States) and from directing the national health care response for urban American Indians and Alaska Natives. Echo-Hawk recalled that, when she reached out to federal, state, and county partners asking for PPE, she received a box of body bags, which she described as, “a devastating experience and a metaphor of how the country has treated American Indians and Alaska Natives.” During the pandemic, a lack of communication and cultural attunement to tribal needs became evident, she said. There was misuse of tribal data and a lack of respect by CDC for tribal authorities. The counts of tribal COVID cases were inaccurate, resulting in “data genocide” (as the allocation of resources was tied to case numbers). In response, the eleven Tribal Epidemiology Centers gathered their own data. Echo-Hawk noted that the tribal communities’ value system has innate public health values because it centers on “what does it mean for me as an individual to contribute to the whole?”

Navigating Legal and Regulatory Barriers to Real-Time Pandemic Response

Rachel Lookadoo (University of Nebraska Medical Center) said that expected and unexpected legal issues arose during the pandemic. U.S. citizens repatriated from China and on cruise ships were brought to Nebraska. There were functional and logistical concerns about quarantines, including payments for the care of those in quarantine, clinical authority, and the frequency of testing. “These questions reflected the confusion around regulatory structures never before applied at such a large scope,” Lookadoo said. Once community transmission was rampant, declarations and waivers, such as CMS 1135 waivers, were crucial in mobilizing resources.¹⁸ While waivers are helpful, providers need to understand how they function and the procedures to request them, Lookadoo said.

Crisis standards of care (CSC) varied across states. In early 2020, one-half of the states had a CSC plan, which are designed for “equitably allocating scarce health care resources in the face of very high demand.”¹⁹ Lookadoo said that “the allocation of resources and complicated triage decisions became politically charged, and this, when coupled with a fear of litigation, had a chilling

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effect on planning.” She suggested that model state laws could ensure cohesion in responding to emergencies and ameliorate issues arising from a patchwork of state laws.

Anne Zink (former Chief Medical Officer, State of Alaska) said that health and public health professionals must understand legal frameworks and work together more closely. “We don’t need a public health system and a health care system—we need a Health System where healthcare and public health work closely together,” she said. Clear roles facilitate meaningful partnerships. She said that it is important to “listen loudly,” noting that, in Alaska’s small communities, elected, tribal, and medical leaders were encouraged to develop responses tailored to small geographical communities. Zink said that it was important to share transparent data with health workers, policy makers, and the public to make decisions about the emergency response. She saw value in oral histories from elders among Alaska’s 229 federally recognized tribes, noting that their stories about the 1918 pandemic informed measures to protect populations and maintain essential fishing.

Discussion

Lookadoo said that emergency declarations were critically important for saving lives—as were state regulatory waivers—but that inconsistencies in the declarations lessened impact. Acton recalled the chaos of everything shutting down before a single order was written, as “millions of decisions” had to be made. When the pandemic became politicized, people wanted orders for specific purposes to avoid legal challenges. Echo-Hawk noted that tribal nations were the first to enact mitigation orders and that states modeled some orders on tribal examples.

Acton suggested that fostering social cohesion and creating space for values helps resolve the tension between individual freedom and community needs. She suggested that leaders need training and tools related to values, calling attention to Public Health 3.0, a blueprint that recommends that public health agencies work across sectors to improve housing, transportation, environmental protection, and other aspects of life that impact health.²⁰ Lookadoo suggested that appealing to individual responsibility could avoid compulsory policies. Echo-Hawk said that it important to consider whose values shape messages and determine the allocation of resources: values must be inclusive of the entire country, she said, and it will take bravery to overcome colonialism and racial bias.

Reforms into Guide Future Pandemic Reponses

Tom Inglesby (Johns Hopkins University) reflected on the federal response to the pandemic, based in part on his experience working for HHS and the White House during COVID. A high-performing federal government is necessary in a national or international emergency, he said, as it appropriates and distributes money, helps ensure compliance with laws, sets emergency rules, gathers data, and establishes emergency operations that states and localities rely upon. “As chaotic as it may have been, I saw incredible expertise in the federal government, people working 24/7, at both the civil service and political levels.”

Inglesby said that there is a need for clarity about CDC’s mission and what it can and cannot do during a public health emergency.²¹ He called for the reestablishment of CDC as an independent scientific and technical voice and the implementation of a process to involve outside and community expertise in developing its guidance.

Inglesby noted that the Administration for Strategic Preparedness and Response (ASPR) played (and will continue to play) a crucial role in emergencies. He suggested that ASPR create a program for rapid medical countermeasure development and that ASPR needs better authorities to work with the private sector. He said that Operation Warp Speed has been sustained in H-CORE, an organizing entity housed within ASPR to ensure synchronization of medical countermeasure efforts across the federal government.²² We should, he said, be aspiring to be bipartisan again for public health emergencies.

Sarah Cody (Santa Clara County, California) said the first person to die of COVID in the United States was a Santa Clara County resident who died on February 6, 2020. Because COVID arrived early, decisions had to be made locally before federal and state responses were developed.

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Her region, for example, was told to quarantine returning cruise ship passengers absent a federal operational plan.

Cody suggested that, while public health is a collective activity, it is not valued equally. She suggested that understanding American cultural values benefits public health. For example, Americans like to innovate, collaborate, and show they are unique, so this might be used to craft public health messaging that appeals to these traits. She urged engagement with a broad group of thinkers beyond the traditional public health and government workforce to get a diversity of perspectives.

Jennifer Piatt (Arizona State University) said that, although federal laws exist to limit health disparities exacerbated by bias, they were not followed during or before the pandemic. It is important to pay attention not only to impacts of law and policy on the surface, but also those not obvious at first glance, she said. “As we get further out, it may be easier to push back against the policies enacted” but “they will not serve us when the next emergency takes place.” Piatt called for a statutory articulation of public health agency authorities to avoid stymying officials or burying them in litigation during an emergency. The Supreme Court called the PHSA an “old law” in the case that struck down the CDC eviction moratorium. If this is the case, she said, “then new clear authorizing authorities are needed.” She called attention to a Supreme Court case (undecided at the time of the workshop) that could eliminate the Chevron Doctrine, which allows courts to defer to agency interpretations of ambiguous federal statutes in some situations.²³

Discussion

Inglesby said that interagency drills to enhance public health emergency preparedness are valuable, noting that, when a Department of Defense exercise identifies a problem, funding is often allocated to fix it. Piatt said that the most problematic laws change the powers that public health has in its toolbox, noting that, in some states, limitations were placed on governors’ authorities to declare emergences. She expressed concern about the effect of undue restrictions on executive authority for future pandemics. Cody said that, nationally, “we need a conductor and we need sheet music” (i.e., coordinated leadership and a coherent vision) for responding to public health crises.

LOOKING TO THE FUTURE: WHERE DO WE GO FROM HERE?

The final panel, moderated by planning committee member Rebecca Wurtz (University of Minnesota School of Public Health), was tasked with thinking creatively about achieving a better outcome with the next pandemic.

Eric Klinenberg (New York University) urged the public health community to integrate social and behavioral sciences’ insights about how cohesion and conflict shape health outcomes in everyday and emergency situations. He recalled conversations in 2020 about distancing: “The intent was good,” he said, “but the execution was off.” “We needed physical distancing and social solidarity, not social distancing.” Social solidarity—including trust, mutual obligation, and shared commitment—determines how societies perform in a crisis. The pandemic demonstrated how easily the social fabric can be undermined and shoring up that fabric, once undermined, is a health challenge. Further, public health experts need to integrate measures of trust (e.g., in science, government, and fellow citizens) and cohesion into their national pandemic preparedness assessments.

Michelle Mello (Stanford Law School) discussed three ways in which the legal infrastructure for public health emergency response could be strengthened: modernizing emergency powers laws; being more attentive to the tailoring of health orders and laws; and strengthening the statutory powers of federal agencies to contribute to pandemic management.

Mello suggested that state emergency powers laws, many of which were last updated in 2001 in response to a localized, short-term threat (anthrax), were inadequate for a multi-year global pandemic. Some do not clearly provide authority to impose health orders on a whole class of persons (as is required, for example, in the case of stay-at-home orders) and do not incorporate sensible time limits or roles for legislatures in sharing or assuming responsibility for the management of emergencies. She suggested that legal challenges to health orders during the pandemic made clear that officials must tailor

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orders as narrowly as possible. While early orders were broad because there was much uncertainty, “as science evolves, so should the orders.” Mello stressed the need for “long game” congressional work to clarify federal agencies’ scope of authority. The courts, she said, have made it clear that they are not willing to grant powers or authorities to agencies beyond what is explicitly stated or defined in statutes.

Megan Ranney (Yale School of Public Health) discussed the importance of upskilling and supporting the health and public health workforce: “We cannot be prepared for the next pandemic unless we train up the people that we have and invest in bringing a new workforce in.” Public health workers did not have access to necessary resources to avoid moral injury and burnout, and they and their families were subjected to abuse and attacks. Ranney said that investments in workforce resilience are needed.²⁴

With the expiration of data use agreements at the end of the emergency, Ranney warned that many data sources on health care access and PPE are unavailable. She called for leadership that keeps its eyes “not just on the 20 percent of public emergencies that get treated by the healthcare system…but also leadership in addressing the 80 percent [of conditions] that determine who is most at risk of the worst outcomes.”

Gregory Sunshine (Centers for Disease Control and Prevention) said that state, territorial, local, and tribal agencies need legal tools and support to manage public health emergencies. The tools must be flexible since emergencies are unpredictable. Access to legal support by public health departments is important for understanding available tools, but many do not have meaningful access to legal counsel or access to legal preparedness expertise. Absent support for public health law in universities and health departments, agencies will have difficulty in carrying out an effective emergency response that is protective of societal priorities.

Discussion

Wurtz said that the pandemic exacerbated inequity but also showed ways to move toward equity. Mello noted that some outcomes, such as the availability of telehealth services, are beneficial and equity-promoting, but that moves by legislatures in some states to restrict public health legal powers have exacerbated inequities in public health protections across different parts of the country. Many of the states that restricted how health officials and governors can respond to health emergencies are those with preexisting inequities in public health, she said, noting that a few states said they will not enforce health-related federal laws enacted during an emergency if they consider them unconstitutional.

Klinenberg sees pandemic-related politicization as similar to the politicization on climate change—such politicization will be a challenge in the next crisis and in maintaining everyday health. Sunshine said that experiential learning and course content for law and public health students can build knowledge about public health law. Ranney said that, as a dean, she looks to build bridges with business, architecture, nursing, and other disciplines. Klinenberg cautioned that public health workers cannot enter the communication environment naively—they must recognize that public health is politically charged and that they will face political officials who seem to undermine public health. Sunshine added that including attorneys trained in crisis communication can help agency leaders assess legal and political risk without sacrificing timely messaging. Sell noted that visibility can also expose public health workers to harassment and that in these cases, institutional support for individuals is critical.²⁵

CONCLUDING THOUGHTS FROM THE WORKSHOP PLANNING COMMITTEE

At the conclusion of the workshop, members of the workshop planning committee shared lessons that they had taken away from workshop discussions.

Benjamin said that there is a need for structure, better planning, better practice, and definition of the rules of engagement. While money is important, a reliable, knowledgeable incident command structure for health emergencies is essential. He agreed with Sharfstein’s suggestion of a senior HHS official empowered to coordinate public health services.

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Castner underscored the need for an updated framework that encompasses three areas: responsibilities at different levels of government related to workforce; leadership that speaks to people’s values; and the need for drills across levels of government. Federal licensing for public health emergencies should be considered in the interest of mutual support across state lines. She highlighted the need for leadership to appeal to individual responsibility and civic engagement toward the collective good and workshop calls for drills to identify interagency weaknesses.

Hodge said that the pandemic revealed tools and innovations that can be better mastered for future preparedness and routine uses. He noted that the pandemic demonstrated the need for finding legal answers and solutions in real time, especially against the backdrop of rampant “COVID denialism.” State and federal governments have manifold legal options. They can legally require action through the exercise of spending powers and other interventions that center on the daily affirmation of health care actors’ role in preparedness and response. Hodge emphasized the constitutional repercussions of fundamental freedoms and liberties “shifting under our feet” and structural issues related to the separation of powers, federalism, and agency interpretations that carry significant implications for responses to pandemics.

Sell raised issues of communications, legal challenges, and discord. What is critical is that public health is trusted by the public. To be perceived as trustworthy at the federal, state, and local level, we must continue to heal the rifts that came out of the pandemic and show the value of public health by showing up in the community and building relationships.

Shah reflected on capacity building (which includes investment in coordination and communication systems and pathways); clarity of roles at the federal, state, and local levels and across systems; and community context. Despite differences in community sizes, politics, etc., he said, it is important to recognize the work that went into meeting the challenges of the pandemic, regardless of how health authorities or the perception of health authorities played out, or the constraints placed upon them.

Varma said that anyone in a position of public health leadership must understand their legal authorities as they are explicitly defined. They must recognize that there are often a lot of ambiguities in the text describing those authorities—particularly when it comes to the dividing line between federal, state, and local systems. The gaps between federal, state, and local authorities offer opportunities for public health leaders to take important actions during emergencies. Legal authorities themselves will not save lives, he said, and public health practitioners must also do the hard work of politics to ensure that the actions they take are not simply legal but supported by the public and/or other key officials.

Margaret Wilmoth (Distinguished Nurse Scholar-in-Residence, National Academy of Medicine) said that it is important to look at public health authorities as they affect those who serve in uniform. When one joins the military, some degree of autonomy is relinquished for the sake of the larger community. This is of particular importance for those who serve in reserve components of the U.S. Armed Forces. The pandemic exposed cracks in previously understood arrangements that federal service took precedence over their civilian life. Service members were threatened with discharge if they refused vaccinations, but discharge proved untenable for reasons of retention/strength of force. We need, Wilmoth said, a military that is ready to serve when we need them and clarity around the legal authorities for vaccination for all who serve.

Wurtz said that preparedness cannot be a separate structure or framework. We must be prepared for the daily public health challenges with communication, data leadership, relationships, and legal skills and need to manage a “warm” infrastructure that can quickly move from warm to hot.

Chemerinsky said that there is much is to be learned from the experience of COVID regarding the allocation of decision-making authority, but the reality is that many lives were lost from COVID unnecessarily. Little has been done to implement the lessons that could be learned from COVID, and much that we should be doing hasn’t happened. He expressed the hope that the workshop and its proceedings would provide guidance for the future.

DISCLAIMER This Proceedings of a Workshop—in Brief has been prepared by Paula Whitacre, Steven Kendall, and Anne-Marie Mazza as a factual summary of what occurred at the meeting. The committee’s role was limited to planning the event. The statements made are those of the individual workshop participants and do not necessarily represent the views of all participants, the project sponsors, the planning committee, the Committee on Science, Technology, and Law, or the National Academies.

REVIEWERS To ensure that it meets institutional standards for quality and objectivity, this Proceedings of a Workshop—in Brief was reviewed by Julie Gerberding, Foundation for the National Institutes of Health; Wendy Parmet, Northeastern University School of Law; and Jay K. Varma, SIGA Technologies, Inc. Marilyn Baker, National Academies of Sciences, Engineering, and Medicine, served as the review coordinator.

PLANNING COMMITTEE Georges C. Benjamin (Co-chair), American Public Health Association; Erwin Chemerinsky (Co-chair), University of California Berkeley School of Law; Jessica Castner, University at Albany and Castner Incorporated; James G. Hodge, Jr., Arizona State University; Tara Sell, Johns Hopkins Bloomberg School of Public Health; Umair A. Shah, Washington State Department of Health; Jay K. Varma, SIGA Technologies, Inc.; Margaret Wilmoth, Distinguished Nurse Scholar-in-Residence, National Academy of Medicine; Rebecca Wurtz, University of Minnesota School of Public Health.

STAFF Steven Kendall, Senior Program Officer; Anne-Marie Mazza, Senior Director; Renee Daly, Senior Program Assistant.

SPONSORS This project was funded by The Commonwealth Fund, Kaiser Permanente, and The Milbank Memorial Fund. The Commonwealth Fund, a national, private foundation based in New York City, supports independent research on health care issues and makes grants to improve health care practice and policy. The views presented here are those of the author and not necessarily those of The Commonwealth Fund, its directors, officers, or staff.

SUGGESTED CITATION National Academies of Sciences, Engineering, and Medicine. 2024. Optimizing Federal, State, and Local Response to Public Health Emergencies: Lessons from COVID: Proceedings of a Workshop—in Brief. Washington, DC: National Academies Press. https://doi.org/10.17226/28023.

Policy and Global Affairs Copyright 2024 by the National Academy of Sciences. All rights reserved.