Emergency Authority of the Secretary of Health and Human Services Under 42 U.S.C. § 243(c)(2) ( 1980 )

Emergency Authority of the Secretary of Health and Human
Services Under 42 U.S.C. § 243(c)(2)
U n d e r § 311 o f th e P ublic H ealth S e rv ice A c t, 42 U .S .C . § 243(c)(2), w h ic h au th o rizes the
S e c re ta ry o f H ealth and H u m an S ervices, at the request o f th e a p p ro p ria te sta te o r
lo cal a u th o rity , to ex ten d te m p o ra ry assistance to states and localities in m eeting health
em erg en cies, th e P ublic H e a lth S e rv ice m ay p ro v id e relo catio n assistance to residents
liv in g n ear th e L o v e C anal for a p erio d not to exceed 45 days, for p u rp o ses o f assessing
an d d ealin g w ith th e h ealth e m e rg e n c y in th a t area.
May 17, 1980
M EM ORANDUM OPINION FOR T H E ASSISTANT TO TH E
PR ESID EN T FOR IN TER G O V ER N M EN TA L A FFAIRS
This responds to your request for our opinion whether the Secretary
of Health and Human Services is authorized by 42 U.S.C. § 243(c)(2) to
assist state and local authorities in temporarily relocating certain resi­
dents who now live near the Love Canal in Niagara Falls, New York,
to cities removed from health hazards of the Canal.* In our opinion,
this section does give the Secretary that authority.
The section in question was enacted in 1967 as an addition to § 311 of
the Public Health Service Act. Partnership for Health Amendments of
1967, Pub. L. No. 90-174, §4, 81 Stat. 533, 536 (1967). As enacted, the
statute provided:
The Secretary may enter into agreements providing for
cooperative planning between Public Health Service med­
ical facilities and community health facilities to cope with
health problems resulting from disasters and for participa­
tion by Public Health Service medical facilities in carry­
ing out such planning. He may also, at the request o f the
appropriate State or local authority, extend temporary (not in
excess o f forty-five days) assistance to States or localities in
• N o t e : L ove C anal, an uncom pleted excavation originally designed to link the N iagara R iver and
Lake O ntario, was used as a chem ical dum psite betw een 1920 and 19S3. D uring the 1970's, homes
bo rd erin g th e landfill began to smell o f chem icals, and residents o f the area w ere found to be suffering
unusually high rates o f cancer, birth defects, and o th e r illnesses. In 1978, an investigation by the N ew
Y ork State D epartm ents o f H ealth and E nvironm ental C onservation led to the discovery that the
landfill was leaking dangerous chem ical com pounds, and the area w as declared by the State to be “an
extrem ely serious th reat to health and w elfare.” O n M ay 21, 1980, President C arter signed an
em ergency o rd e r authorizing federal assistance in the tem porary relocation o f the 710 families w ho
had rem ained in the area. Ed.
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meeting health emergencies o f such a nature as to warrant
Federal assistance. The Secretary may require such reim­
bursement of the United States for aid (other than plan­
ning) under the preceding sentences of this subsection as
he may determine to be reasonable under the circum­
stances. Any reimbursement so paid shall be credited to
the applicable appropriation of the Public Health Service
for the year in which such reimbursement is received.
Id. (Emphasis added). In 1976, the section was amended to authorize
the Secretary to develop and implement a plan to use resources of the
Public Health Service and other agencies under the Secretary’s jurisdic­
tion to control epidemics and to meet other health emergencies. Na­
tional Consumer Health Information and Health Promotion Act of
1976, Pub. L. No. 94-317, § 202(b), 90 Stat. 695, 703 (1976). The 1976
amendment divided § 243(c) into two parts. Section 243(c)(1) author­
ized the development and implementation of plans to meet emergencies
or problems resulting from disasters or epidemics. Section 243(c)(2),
which sets forth the Secretary’s authority to extend assistance to states
or localities in meeting health emergencies, is the section which grants
the authority about which you have inquired. This section now
provides:
The Secretary may, at the request of the appropriate
State or local authority, extend temporary (not in excess
of forty-five days) assistance to States or localities in
meeting health emergencies of such a nature as to warrant
Federal assistance. The Secretary may require such reim­
bursement of the United States for assistance provided
under this paragraph as he may determine to be reason­
able under the circumstances. Any reimbursement so paid
shall be credited to the applicable appropriation for the
Service for the year in which such reimbursement is re­
ceived.
Id. The 1976 amendment did not substantively change the Secretary’s
authority respecting temporary health emergency assistance to states or
localities.
To determine the scope of the Secretary’s authority under this sec­
tion, we have reviewed the legislative history of both the 1967 and the
1976 Acts. This review yielded little guidance as to the meaning of the
operative phrases in the statute, such as the 45-day limitation on assist­
ance. There is also little indication of the legislative intent as to what
may satisfy the requirement of a request from “the appropriate State or
local authority” or as to what type of health emergency was contem­
plated. We found nothing in this review to indicate that the Secretary
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may not extend federal assistance for relocating Love Canal residents to
temporary housing.1
The 1967 amendment, which added the section authorizing the Secre­
tary to act in health emergencies, was part of a lengthy bill which
modified the Public Health Service Act. The House Committee on
Interstate and Foreign Commerce explained the new section as follows:
This section adds a new subsection (c) to section 311 of
the Public Health Service Act. Under this proposed new
subsection, the Secretary would be authorized to enter
into agreements providing for cooperative planning be­
tween public health medical facilities and community
health facilities to cope with health problems resulting
from disasters, and for participation by Public Health
Service medical facilities in carrying out such planning.
He could also, at the request o f appropriate State or local
authority, extend temporary (not in excess o f 45 days) assist­
ance to States or localities in meeting health emergencies o f
such a nature as to warrant Federal assistance. He could
also require such reimbursement of the United States for
aid (other than planning) received under this subsection as
he determines to be reasonable under the circumstances.
Any such reimbursement would be credited to the appli­
cable appropriation of the Public Health Service.2
H.R. Rep. No. 538, 90th Cong., 1st Sess. 38 (1967) (emphasis added).
The reference to the new section in the Senate report indicates that the
Congress intended the section to grant broad authority to the Secretary
so that the Public Health Service could play an active role in delivering
disaster assistance services. In explaining this expanded role, the com­
mittee wrote:
Under present statutory authority, the Public Health
Service may provide emergency care and treatment in its
hospitals and outpatient facilities to persons who are not
legal beneficiaries of the Service, but the Service does not
have clear authority to provide such emergency care or
treatment outside of its own facilities. If Public Health
Service hospitals are to be responsible members of the
medical communities in which they are located, they must
be able to play a more active role in meeting such com­
munity emergency health needs as arise in the case of
floods, fires, and other disasters. The proposed new au­
1 T h e re are no judicial decisions o r regulations interpreting this section.
2 T h e S ecretary must determ ine w h e th er to require reim bursem ent from the state or locality. In
1967, it was suggested to the com m ittee that the reim bursem ent be m andatory, but this suggestion was
not follow ed. See H .R . Rep. No. 538, 90th C ong., 1st Sess. 49 (1967).
640
thority would not create any direct Federal obligation to
provide such emergency assistance, but it would authorize
Public Health Service medical facilities to cooperate with
other community agencies in the development and execu­
tion of disaster assistance services.
S. Rep. No. 724, 90th Cong., 1st Sess. 13 (1967). Although this refer­
ence could be read to suggest that the section authorizes only emer­
gency assistance in the form of assistance by Public Health Service
facilities, we do not believe the section properly should be construed so
narrowly. In its section-by-section analysis, the committee noted that
§ 4 authorized agreements for cooperative planning between public
health medical facilities and community health facilities and that the
Secretary could also extend temporary assistance to meet health emer­
gencies. There is no limitation on the type of temporary assistance that
may be provided. See S. Rep. No. 724, 90th Cong., 1st Sess. 25 (1967).3
Most of the discussion on the floor focused on other, more contro­
versial sections of the bill. The few comments on § 4 simply refer to the
strengthened role of the Public Health Service in assisting states and
localities to cope with health emergencies and disasters. See, e.g., 113
Cong. Rec. 26,016 (1967) (Statement of Mr. Donohue). Hearings on the
bill were held by the Senate Committee on Labor and Public Welfare.
As with the floor debates, the few comments on § 4 at the hearings
summarily referred to the section as a clarification and strengthening of
existing authority for assistance to states and localities. See, e.g., Partner­
ship For Health Amendments o f 1967: Hearings on S. 1131 and H.R. 6418
Before the Subcomm. on Health o f the Sen. Comm, on Labor and Public
Welfare, 90th Cong., 1st Sess. 62 (1967).
The 1976 amendment, as stated earlier, did not substantively modify
the Secretary’s authority to assist during emergencies. The amendment
to § 4 appeared in the House bill. The committee simply paraphrased
the existing provision in its report, without shedding any light on the
meaning of the section. H.R. Rep. No. 1007, 94th Cong., 2d Sess. 30
(1976).
The plain language of the statute authorizes the Secretary to provide
the assistance at the request of the appropriate state or local authority.
This request is a prerequisite to the provision of any assistance. The
Secretary must determine whether the authority requesting the aid is
the appropriate authority.4 The Secretary must determine whether the
circumstance is a health emergency of such a nature as to warrant
3 A conference com m ittee was convened to resolve differences on o ther portions o f the bill. T h e
conference report does not discuss this section. H .R. Rep. No. 974, 90th C ong., 1st Sess. (1967).
4 A lthoug h the A ct states that "the" state o r local authority may make the request, w e d o not think
this m eans that there is only one official so authorized. In the absence o f regulations, the Secretary
must determ ine in each circum stance w h eth er the request com es from an appropriate authority.
641
federal assistance.5 Once the Secretary makes this determination, tem­
porary federal assistance may be provided for a period of 45 days. The
legislative sources cited above do not reveal the purpose of the 45-day
limitation. Because the purpose of the section is to authorize temporary
assistance to states and localities, it may be inferred that the provision
was added to prevent prolonged federal involvement. Financial com­
mitments may not be made beyond the 45-day period. If the financial
commitments are made within the 45-day period, and if they are in­
tended to provide “temporary” aid, we believe the section allows the
benefits of the commitments to extend beyond the 45 days.
Finally, based upon our review of the statute and its legislative
history, as discussed above, at least in the circumstances as you have
described them in the case, the Public Health Service is authorized to
provide temporary relocation assistance. Any removal of families, and
their temporary relocation in other housing, will be for purposes
closely related to assessing and dealing with the health emergency.
Congress intended to confer on the Secretary of Health and Human
Services authority broad enough to respond as contemplated here.
L a r r y A. H am m ond
Acting Assistant Attorney General
Office o f Legal Counsel
8 W e h ave been advised by th e G eneral C ounsel's O ffice o f the D epartm ent o f H ealth and H um an
Services that a standard internal operating pro ced u re requires that the Surgeon G eneral determ ine that
there is indeed a “ health em ergency.*’ T h e statu te itself does not require this procedure, and the
process is not set forth in the Public H ealth S ervice's regulations.
642