Trump Says He'll Declare Opioid Crisis a National Emergency. Here's What That Could Mean
WASHINGTON — President Trump first promised to declare a national emergency to confront the epidemic 68 days ago. Since then, statistics show more than 6,000 Americans have died of opioid overdoses waiting for federal action.
Trump now says he'll formally declare that emergency next week, a two-month delay that he said underscores the "time-consuming work" behind his administration's response to the crisis.
"We are going to be doing that next week," Trump said at a news conference Monday, 67 days after he first promised to sign the emergency declaration. "That is a very, very big statement. It's a very important step. And to get to that step, a lot of work has to be done and it's time-consuming work."
An emergency declaration would be a powerful rhetorical tool in focusing national attention on an epidemic that, according to the Centers for Disease Control and Prevention, claims 91 lives every day.
But the impact of an emergency wouldn't just be symbolic. It would give the Trump administration novel and untested powers: broad authority to waive patient privacy laws, divert funds and give immunity to medical professionals and first responders.
Without a formal proclamation, it's impossible to know which of these powers — some of which could be controversial — Trump intends to use.
Neither Trump nor the White House would explain what's holding up the proclamation, though Trump suggested that he's wading through uncharted waters. "And I want to get that absolutely right," he said Monday.
He's doing it without two key advisers: Health and Human Services Secretary Tom Price was fired last month for taking private jets at taxpayer expense — often traveling to opioid-related events. And Trump on Tuesday withdrew his nomination for "drug czar" after the Washington Post and 60 Minutes reported Rep.
Tom Marino's role in pushing through legislation to make it difficult for the Drug Enforcement Administration to crack down on shipments of opioids from drug companies to black market dealers.
"If you want to be cynical, it’s one thing to declare we are now in a state of emergency. Well, everyone seems to already know that and understand it. So the question is, what specific logjams are removed?" said Mark Parrino, president of the American Association for the Treatment of Opioid Dependence. "As this epidemic goes on and claims more lives, that question takes on even greater weight."
Under federal law, the administration has special powers to combat disease when there's a public health emergency declared by the secretary of Health and Human Services.
Those emergencies are routine. Just since August, the secretary of Health and Human Services has declared 17 different public health emergencies to deal with the effects of Hurricanes Harvey, Irma, Maria and Nate, and for the California wildfires. But none for opioids.
Presidents can put even more muscle behind those public health emergencies by declaring a state of national emergency, giving the president additional powers to waive Medicaid and Medicare regulations and patient privacy regulations.
That's what the President’s Commission on Combating Drug Addiction and the Opioid Crisis recommended in July.
The chairman of that commission, New Jersey Gov. Chris Christie, a Republican, said last week that it's "not good" Trump hasn't declared an emergency yet. “I think the problem is too big to say that if he had declared an emergency two months ago that it would make a significant difference in two months,” he said at a Trenton press conference. “But I would also say you can’t get those two months back."
The pharmaceutical industry has been publicly supportive of the commission. During the most recent meeting, drug company CEOs promoted their products and sought Food and Drug Administration and Medicaid reimbursement rates that would benefit their proposed opioid treatments and alternatives.
The commission will hold its final scheduled meeting Friday.
The White House says the administration is still working out the details of the emergency. "Right now these actions are undergoing a legal review," said White House assistant press secretary Ninio Fetalvo.
But for those on the front lines of the opioid crisis, frustration is mounting.
"I think it’s very reasonable to assume that he's just gone on to other things," said Lawrence Gostin, a Georgetown University law professor who has studied public health emergencies.
To be sure, a national emergency to address a crisis of addiction would be unprecedented. Only once before has a president used the National Emergencies Act to respond to a public health crisis. President Barack Obama did that in 2009 for an outbreak of the swine flu. That emergency quietly expired in 2010 when the pandemic turned out to be milder than anticipated.
An opioid emergency would raise new questions about how to adapt powers Congress designed for one purpose — infectious diseases and biological agents — to the slower-moving crisis of addiction, which has been two decades in the making.
One example: Patient privacy.
Kellyanne Conway, the White House counselor who has emerged as Trump's key adviser on the issue, has been struck by stories of parents who first learned their children had been treated for overdoses only after they've died.
“We’re so sorry, Mr. and Mrs. Jones. We tried to save your son. In fact, we resuscitated him three or four times over the last six or eight months, but this time he was too far gone,” Conway said, recounting what she said was an all-too-typical story.
"And sometimes the privacy laws don’t allow parents of a 19-year-old, in fact, to be notified," she said.
Experts disagree about whether that's the case, but concede there's enough confusion about the issue that many medical professionals err on the side of silence.
"It would be terrific for a declaration of national emergency to declare very clearly in this situation — where someone has overdosed — that health care professionals have every right under the law to communicate with the families," said Paul Samuels of the Legal Action Center, which advocates for the rights of drug addicts. "That would be a major contribution."
An emergency would also allow the Trump administration to tap the Public Health Emergency Fund, a special pool set up by Congress to deal with unanticipated health crises.
That fund has been all but depleted following the Ebola and Zika emergencies of 2015 and 2016. While the Department of Health and Human Services has so far refused to give a public accounting of that fund, congressional aides say they've been told it has a balance of just $30,000.
Even without new funds, an emergency declaration would allow the president to divert existing money. The federal government could tell states to redirect existing federal grant funds — and the employees paidA with them — to the opioid emergency.
Even more significantly, an emergency could allow HHS to waive Medicaid regulations, which currently prohibit reimbursement for residential treatment facilities with more than 16 beds. That waiver could also free up funds for addiction treatment in other institutions like prisons.
And the Department of Health and Human Services could even pay off the student loans of health care workers who provide addiction treatment.
Beyond those specific powers, addiction treatment advocates say presidential action could also help send a powerful signal that could help de-stigmatize the disease and focus national attention where it's needed most.
"This is a bully-pulpit issue. There are many people who voted for him along the Appalachian trail, which has been particularly hard hit by this," Parrino said. "This president has a unique ability to reach out and — no matter what you say about his politics or the fights he picks with people — he has the ability to connect with a large group of the American people."