Biden Administration Issues COVID-19 Executive Orders

On Thursday, January 21, President Biden held a press conference on the COVID-19 response and signed several Executive Orders aimed at combatting the pandemic. He also released a National Strategy for the COVID-19 response. These actions follow the release of his “American Rescue Plan” and vaccine plans last week, which laid out the new Administration’s vision for providing economic stimulus and COVID-19 support. Today’s Executive Orders make good on getting several pieces of the American Rescue and vaccine plans that do not require Congressional Action off the ground.

 

What is it?

Last week’s announcements laid out the path Biden would take, and today’s actions started the new Administration in that direction. Your author has summarized content (just the facts!) below and provided color commentary and context in italics.

Executive Orders

  • COVID-19 Coordinator (signed Wednesday)

This EO establishes an organizational structure within the White House, led by the COVID-19 Response Coordinator (Jeff Zients) and their Deputy (Andy Slavitt) to lead the government-wide response effort and convene principals from agencies. The Coordinator is charged with working with the Assistant to the President for Domestic Policy (aka head of the DPC Susan Rice) and the Assistant to the President for National Security Affairs (aka the National Security Advisor Jake Sullivan). The APNSA is granted the authority lead all national biodefense preparedness efforts, including the authority to convene the National Security Council on COVID response and providing recommendations on bio preparedness policies within 180 days.

Here the Administration makes clear that from a staffing perspective that they view the federal response to COVID and overall future preparedness efforts as separate endeavors. This is certainly helpful context for those looking to engage at the political level on assisting the response and future preparedness issues.

  • Masks in Federal Buildings and Land (signed Wednesday)

This EO requires mask-wearing, physical distancing, and other public health measures in all federal building and federal lands. HHS is charged with working to increase public compliance with mask wearing. It also establishes a Safer Federal Worker Task Force to provide advice to agency heads to protect its workers.

  • Manufacturing

The EO directs agencies to exercise all “appropriate authorities, including the DPA” to accelerate manufacturing, delivery, and administration to meet shortfalls of “pandemic response supplies.” Specifically, the EO:

    • Requires the Secretary of State, DoD, HHS, and DHS to review the availability of needed pandemic response supplies, assess the nation’s capacity to produce them, and charges the agencies to take appropriate action to fill shortfalls, including through acquiring additional stockpiles, improving distribution, or building the market or industrial base – all concluding in a report to the President. The report will be reviewed by Zients, who will recommend to the President whether exercising the DPA or other authorities would be helpful, and any federal or legal impediments that could be removed to address the shortfalls.
    • Addresses hoarding and price gouging by charging DoD, HHS, and DHS with providing the President with recommendations on how to address the pricing of pandemic response supplies, including through federal “reasonable pricing” clauses or purchasing compacts.
    • Requires a strategy to design, build, and sustain a long-term capability in the United States to manufacture supplies for future pandemics and biological threats.
    • Charges HHS with facilitating access to the National Stockpile for tribal governments, IHS and other authorities.

The EO does not define “pandemic response supplies”, but the National Strategy provides an illustrative list: N95 masks, isolation gowns, nitrile gloves, PCR sample collection swabs, test reagents, pipette tips, laboratory analysis machines for PCR tests, high-absorbency foam swabs, nitrocellulose material for rapid antigen tests, rapid test kits, and all the necessary equipment and material to accelerate the manufacture, delivery, and administration of COVID-19 vaccine.

Many Democrats have been pushing the incoming administration to invoke the DPA (see yesterday’s letter). This falls short of invoking the DPA on any specific product or changing the status quo – but rather puts the agencies on notice to do everything they can so that the White House isn’t responsible for supply shortages. It also gives the new Administration some time to look around and what we have before making moves. This may lead to use of the DPA, but we aren’t there yet.

  • COVID-19 Pandemic Testing Board

The EO establishes a “Testing Board,” chaired by Zients and including other unnamed agencies to coordinate efforts to promote “diagnostic, screening, and surveillance testing.” This Board will be charged with identifying and addressing testing barriers, communicating about testing to the public, addressing testing costs and insurance standards, and coordinating with HHS. It is also charged with working with FEMA to promptly support surveillance testing in school and lead workforce efforts to expand contract tracing.

Separately, this EO establishes a health care workforce program to provide technical support and training to public health workers engaged in testing, tracing, and vaccination, as well as develop the future US Public Health Jobs Corps.

The Board seems to be the place to go on all things testing. We don’t yet know who the agency representatives will be, nor how this massive group project will be divvied up. Stay tuned.

  • COVID-19 Treatments

This Order directs NIH to develop plans to support clinical trials to identify clinical management strategies and treatments for COVID-19, ensuring diverse trial populations and with specific attention to rural settings and the long-term health impact of COVID. The Order also outlines the charge to agencies to provide assistance to long-term care facilities, the military, veterans, and tribal nations. HHS is charged with issuing recommendations on increasing the healthcare workforce, expand access to programs designed to meet long-term health needs of patients recovering from COVID-19, and support access to safe and effective COVID-19 therapies for both the insured and the uninsured. On the latter point, HHS is charged with 1) evaluating the COVID-19 Uninsured Program operated by HRSA, a part of the CARES Act Provider Relief Fund; and 2) evaluating Medicare, Medicaid, and commercial insurers, and taking “any available steps to promote insurance coverage for safe and effective COVID-19 treatments and clinical care.”

HHS gets a lot of homework to open their books and see what they can do with existing authorities to expand access to COVID-19 care, as well as take steps to improve care through NIH supported research.

  • Data Collection

The EO directs the federal government to work with state, local, tribal and territorial governments to aggregate and analyze data to track access to vaccines and testing, inform the reopening of schools and businesses, and address disparities in COVID-19 infections and health outcomes. The DoD, HHS, Education, OMB, National Intelligence, OSTP, and NSF will all be required to appoint a lead to address COVID-19 data issues. Reports are required regarding the utility of public health data systems and a plan for advancing public health data analytics.

The National Strategy suggest that the Administration will create publicly available dashboards with national and state-by-state level information, consistent with privacy protections, on cases, testing, vaccinations, and hospital admissions to make real-time information available to policymakers and the public. So far, comprehensive userfriendly information has been primarily compiled by academic institutions and press outlets compiled from state and local data across the country. If the Administration moves forward with such an effort, it will bring all these sources together into one federal location. Having clearer metrics will likely help the Administration monitor the pandemic against its own metrics and guide decision making around reopening efforts.

  • Reopening Guidelines

The EO directs the Departments of Education (Ed) and Health and Human Services (HHS) to provide guidance on safe reopening and operating for schools, child care providers, and institutions of higher education, advice on distance learning and mental health support, and a clearinghouse to enable the sharing of best practices. Ed is charged with collecting data on the impact of COVID-19 and distanced learning on students (including disparities in such impact). HHS is charged with collecting data on school closures so state and local officials have metrics to inform decision-making and can better understand the impact of closures on students. HHS in collaboration with Zients and other agencies will work to ensure that testing materials, support for contact tracing, and vaccinations for teachers are equitably provided. The EO also touches the Federal Communications Commission and charges them to increase connectivity options for students lacking reliable home broadband to the extent possible.

The CDC has had information about school re-openings and operations posted on their website for many months. After inaguration, the landing page was reformatted and updated – as sign that the new Administration is ready to make their mark. However, most of the content linked from the landing page dates back several months. For those engaged in this space, keep checking to see how these recommendations may, or may not, morph as HHS and Ed work together on their plans and collect data on the impacts of remote learning.

  • OSHA Standards

The Occupational Safety and Health Administration (OSHA) is being charged with releasing revised guidance for employers to help keep workers safe from COVID-19 exposure within two weeks, and issue any temporary standards by March 15th. It also asks OSHA and Mine Safety and Health Administration to determine whether to establish emergency temporary standards. The EO directs OSHA to enforce worker health and safety requirements, targeting the worst violators, including through multilingual outreach programs to inform workers of their rights. The order also instructs agencies to explore ways to protect workers who are not always covered by OSHA standards, such as those who are self-employed.

OSHA has previously released guidance for employers in collaboration with CDC. As with school reopening – keep an eye on how this does or does not change in the revised version. The new Administration makes clear that they would like OSHA to step up use of their existing enforcement authorities. It also takes a step to try to protect “gig” workers who are not “employees” as defined by OSHA, but have been essential workers during these times, such as ride-share and home delivery service workers.

  • Travel

This EO requires mask-wearing in airports, on certain modes of public transportation, including many trains, airplanes, maritime vessels, and intercity buses. Transportation, DHS, and CDC are charged with providing Zients with any additional recommendations to increase the safety of domestic travel. For international air travel, this Order requires, to the extent feasible, that international travelers be required to produce proof of a negative COVID-19 test prior entry and to comply with CDC guidelines for self-isolation and self-quarantine upon arrival. Within 14 days CDC, Transportation, and DHS are charged with taking any additional regulatory action to effectuate these policies, including the type of testing the satisfy the requirement, the type of proof required, and the feasibility and options for imposing arrival requirements. The Executive Order also calls for the consideration of additional public health measures in domestic travel and for consultation with foreign governments and other stakeholders to implement public health measures for safe travel, including at land and sea borders. The Secretary of State and HHS are charged with assessing the feasibility of linking COVID-19 vaccinations to International Certificates of Vaccination or Prophylaxis.

To date, mask policies at airports and on different modes of transportation have been developed and enforced by individual operators and localities. The EO adds a federal hook, but given the widespread reach of corporate policies, this is not a large change in many parts of the country. This may help airlines and others drive compliance, but it will remain a situation by situation issue (as is evidence by all those twitter videos!). We await more information from the agencies on how quarantine guidelines could or will be enforced for international arrivals.

  • Health Equity

This Order establishes a COVID-19 Health Equity Task Force, including federal agency representative and non-federal members with expertise and live-experience, charged with providing recommendations to the President regarding resource and funding allocations and culturally aligned communication in communities with inequities in COVID-19 outcomes by race, ethnicity, geography, disability, and other considerations, including supporting native communities and tribal governments. This Task Force is ordered to work with the group implementing the Data Collection Order to improve data collection in these communities now and in the future.

Addressing disparities and inequities is a core pillar of this Administration. This EO messages out of the gate that the Biden takes these issues seriously and aims to inform broader policy decisions with this lens.

Non-Executive Order Presidential Actions

  • FEMA

Biden issued a Presidential Memorandum directing the Federal Emergency Management Administration to increase federal reimbursement to states and tribes from 75 percent to 100 percent of the cost for National Guard personnel and emergency supplies, such as PPE, cleaning and sanitizing, and the personnel and equipment needed to create vaccination centers, through September 30th. The order also includes restoring full reimbursement for eligible costs necessary to support safe school operation and reopening through the FEMA Disaster Relief Fund. This Memorandum also expands FEMA resources for tribal governments.

This action is likely designed to push states to deploy more resources to reopening and mass vaccination efforts.

  • Global Leadership

Biden has issued a Presidential Directive to restores U.S. leadership and seeks to support the international health and humanitarian response to the COVID-19 pandemic and its secondary impacts, global health security and diplomacy, and better preparedness and resilience for emerging and future biological threats. This includes support of the Access to COVID-19 Tools (CT) Accelerator, joining the multilateral vaccine distribution facility, known as the COVID-19 Vaccine Global Access (COVAX) Facility, and engaging other experienced international public health groups.

This follows yesterday’s actions to re-join the World Health Organization and intent to work constructively with the WHO to strengthen and reform it. This broad Directive sends a strong message to the international community about the Administration’s approach to international collaboration on COVID-19 and other critical health issues. This is one of the longer EOs, so it’s worth a read if this is an area of interest.

 

Other Actions

  • 100 million shots in 100 days

Biden has announced that the Administration aims to work with FEMA to support 100 mass vaccination centers, and the CDC to make vaccines available in local pharmacies, in the next month. He has directed the U.S. Public Health Services Commissioned Corps with expanding its workforce. Biden has noted that he views the partnership between the federal, state, local, tribal and territorial governments similar to disaster responses – like Hurricane Sandy.

We’re still light on details on how this is all going to come together – such as where these mass vaccinations sites will be deployed, how pharmacies will be supported in vaccination efforts, and if and how vaccine prioritization frameworks established by the CDC and localities will be applied.

 

What it means for you.

Like all Executive Orders, these have their limits. The agencies have a lot of homework to complete in the coming weeks and months. A lot. Those reports and actions will inform how the response evolves. The most noted “on the ground” impacts that take effect immediately are the increase in federal government support for state National Guard deployment and the transportation mask mandates.

However, take a peek at the EO Fact Sheet and the National Strategy for the EOs and topics that interest you. The EOs themselves do not go as far as the Administration is messaging right out of the gate – and their narrative in those other documents will to give you a sense for where the Administration would like to take their response over time (using both existing authorities and those requested from Congress).

 

What’s next?

I’ve opined a bit above, but overall, the real activity is going to come out of the agencies named in the Orders in the coming weeks. Keep an especially close eye on activities at CDC and OSHA. The prominence of these agencies is generally bolstered under Democratic Administrations, and with a raging pandemic, we expect this is amplified.

What about last week’s big COVID plan? If you remember your School House Rock, Congress needs to act to provide the funding necessary to support most provisions of the American Rescue Plan. Details about how that may happen are still coming together.

The House may develop and advance a package with some of the provisions in the coming weeks. But the rubber meets the road in the Senate, which will be busy with establishing a power sharing agreement, running an impeachment trial, and advancing Biden’s nominees. Whether there is appetite for a House drafted “skinny” package, or any package at all to move through normal order, is unclear. Democrats may have to use budget reconciliation if there isn’t bipartisan agreement, which will take time and limit the scope of the possible policies that can be advanced.

Speaker Pelosi announced today that the House would not have notes next week and with that change in schedule, there are only 8 weeks left before several important CARES provisions begin expiring at the end in March.  With an impeachment trial pending as the first order of business on the Senate floor, time is beginning to get short for action on a COVID package.

 

Resources

National Strategy for the COVID-19 Response and Pandemic Preparedness (EO text starts on page 118)

American Rescue Plan

Executive Order Fact Sheet