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The U.S. Federal District Court for Mid-Florida (Tampa) just threw out the CDC’s regulation requiring people to wear masks on public transportation. The court’s 59 page decision (see the Health Freedom Defense Fund v. Biden decision) found that CDC exceeded their statutory authority and didn’t follow the proper administrative procedures under the Administrative Procedures Act when they established the regulation.

The transportation mask requirement was definitely a needed public health intervention. We’re lucky that the lawsuit was filed late in the pandemic and that this decision came down after cases and hospitalizations had dropped precipitously. It’s likely that the CDC/Biden will appeal the decision to the appellate court system, so it’s possible that a higher court will keep the mask requirement in place pending hearing the appeal…  but they also might not take the case and if they do, they might let the lower court ruling stand during the process.

We should know the answers to those questions soon…  but in the meantime, it looks like masks will no longer be required on jets and other forms of public transport like subways and busses etc.

Meanwhile, in a separate but similar case, Arizona joined 20 other states filing a similar lawsuit in the same federal district court challenging the CDC’s 2021 emergency regulation requiring people over the age of two to wear masks on public transportation, airplanes, trains, and transport hubs like airports and train stations. [See the CDC Rules: 86 FR 8025 – Requirement for Persons To Wear Masks While on Conveyances and at Transportation Hubs 86 Fed. Reg. 8,025.].

Editorial Note: It’s curious that the plaintiffs in both cases chose to file in the same Tampa district court. It’s almost like they were shopping for a favorable judge, dontcha think?

The crux of the arguments in both cases is that CDC exceeded their statutory authority under the Public Health Service Act [42 U.S.C. § 264(a)]. Plaintiffs believe that law doesn’t authorize CDC to establish their emergency rule requiring masks in those environments. The suit also argues that CDC didn’t use proper administrative procedures when they established the rule (failing to consider lesser alternatives and not following the APA’s notice and comment requirements).

Once these two cases are fully adjudicated, we’ll get more clear information from the courts about the extent of the CDC’s authority to quickly establish rules during public health emergencies and whether there is latitude for the agency to take some shortcuts while establishing regulations during public health emergencies.

Note: According to Jennifer L. Piatt, JD, Deputy Director of the Network – Western Region Office, “…the US Supreme Court has already started to give us a sense of how broadly it views the CDC’s authority to act in times of crisis. In Alabama Association of Realtors v. HHS, the Supreme Court indicated that CDC did not have the authority to issue a nationwide eviction moratorium under the Public Health Service Act, 42 U.S.C. § 264(a). This is the same section at issue in this new case on transportation masking requirements. Alabama Realtors has thus already demonstrated that the Court is willing to limit CDC’s authority under this section of the Public Health Service Act (PHSA), and it’s possible that the Court’s language in that decision may illuminate or drive some of the lower courts’ interpretations in this case.”

Resource Note: When you have questions about public health law that come up in the course of your work, a terrific resource is the Network for Public Health Law. They are a terrific, free, resource that can help you think through your legal questions by researching laws and case law to help you make decisions. It’s not legal advice, but a terrific resource. Here’s a place to start when you have questions: How We Can Help – Network for Public Health Law.

Here’s What it Does & Why It’s Important

U.S. Department of Health & Human Services Secretary Becerra just extended the federal public health emergency for another 90 days [See renewal declaration here], bringing the new expiration date to mid-July. It’s likely that the federal public health emergency will end at that time.

Many policy changes are tied to the federal public health emergency like flexibilities to waive or modify certain requirements in a range of areas, including in the Medicare, Medicaid, and CHIP (KidsCare) programs, mandates for private health insurance, authorization of medical countermeasures, telehealth, providing liability immunity to providers who administer services, and authorizing the FDA to do emergency use authorizations, among other things:

The public health emergency was initially declared by HHS Secretary Azar in late January 2020 under Section 319 of the Public Health Service Act. A PHE lasts for 90 days and must be renewed to continue. It has been renewed several times, most recently today. The new expiration date is July 16, 2022.

The Kaiser Family Foundation out together this good summary of what changes are coming when the federal declaration ends: What Happens When COVID-19 Emergency Declarations End? Implications for Coverage, Costs, and Access

Here are the sub-categories:

• Coverage, costs, and payment for COVID-19 testing, treatments, and vaccines
• Medicaid (AHCCCS) coverage and federal match rates
• Telehealth
• Other Medicaid (AHCCCS) and CHIP (KidsCare) flexibilities
• Other Medicare payment and coverage flexibilities
• Other private insurance coverage flexibilities
• Access to medical countermeasures (vaccines, tests, and treatments) through FDA emergency use authorization (EUA)
• Liability immunity to administer medical countermeasures

The thing I’m most immediately concerned about is that once the federal emergency ends on July 16, AHCCCS will begin its redetermination processes (redetermination has been suspended during the federal PH emergency since AHCCCS accepted the 6.2% enhancement in the federal share of Medicaid in AZ). AHCCCS estimates that as many as 500,000 members have moved in the last 2 years and didn’t update their address.

Once the federal emergency ends, they’ll send out notices to members and those that don’t reply in 10 days will get kicked off (at least I think it’s 10 days). If the letter goes to their old address they’ll obviously get kicked off.

There needs to be a full-court-press by AHCCCS, their contracted Managed Care Organizations, nonprofits and others to get the word out between now and July to make sure folks that have moved in the last year update their addresses at www.healthearizonaplus.gov or 1-855-432-7587.