Assuring Essential Medical Supplies During a Pandemic: Using Federal Law to Measure Need, Stimulate Production, and Coordinate Distribution

Abstract

It was known before the emergence of COVID-19 that a pandemic would produce harmful shortages of personal protective equipment (PPE) and other essential resources. Training exercises had exposed depleted stockpiles, fragile global supply chains, and confusion about the basic responsibilities of key government agencies. These findings did not lead to corrective action, and when the shortfalls hit in spring 2020, the Trump administration failed to implement a coherent strategy in response. The result has been chaotic and inefficient, with continuing competition for scarce supplies among states, health systems, and smaller entities like nursing homes, prisons, and schools. The Biden administration has not only committed to mounting a successful vaccination campaign, but also to ensuring an adequate supply of essential medical supplies and pharmaceuticals to protect health care workers and enable schools and other venues to reopen safely. Incoming officials have suggested that they will rely on the Defense Production Act (DPA), federal purchasing power, and financial support for innovation to stimulate production, strengthen supply chains, coordinate expertise, and resolve market failures. This is a welcome sign. There is plenty of low-hanging fruit to pick, but systemic challenges cannot be resolved quickly. This Chapter recommends the use of federal legal authority to (1) make large purchase commitments to domestic producers; (2) require ongoing reporting of key PPE and other supply inventory as a condition of CMS reimbursement; and (3) restate the mission of the Strategic National Stockpile (SNS) to serve as both a reservoir of essential supplies for the nation and a coordinating center for tracking inventory in the public and private sectors. We also recommend an independent commission to investigate how to improve domestic production and emergency distribution of PPE, medicines and other essential medical products. This paper was prepared as part of the COVID-19 Policy Playbook: Legal Recommendations for a Safer, More Equitable Future, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association.