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HHS, Fourth Amendment to the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID–19, 85 FR 79190 (Dec. 9, 2020)

Summary

This Federal Register notice of December 9, 2020 (85 FR 79190) from the Department of Health and Human Services is a Notice of Amendment and Republished Declaration: the Secretary issues the Fourth Amendment to his March 10, 2020 Declaration under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19. The amendments apply as of February 4, 2020, except as otherwise specified in Section XII. They add healthcare personnel using telehealth to order or administer Covered Countermeasures for patients in another state as Qualified Persons, and modify the training requirements for certain licensed pharmacists and pharmacy interns to administer routine childhood or COVID-19 vaccinations. They also make explicit that Section VI covers all qualified pandemic and epidemic products and add a third method of distribution.

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Full text

                                            79190                    Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Notices

                                            and/or go to the Dockets Management                     it received in developing this final                  previously approved FDA collections of
                                            Staff, 5630 Fishers Lane, Rm. 1061,                     version of the guidance.                              information. Therefore, clearance by the
                                            Rockville, MD 20852, 240–402–7500.                         FDA received several comments on                   Office of Management and Budget
                                              You may submit comments on any                        the guidance and revised the guidance                 (OMB) under the Paperwork Reduction
                                            guidance at any time (see 21 CFR                        in response to these comments. The                    Act of 1995 (PRA) (44 U.S.C. 3501–
                                            10.115(g)(5)).                                          revisions include (a) adding a note in                3521) is not required for this guidance.
                                              Submit written requests for single                    the section discussing the United States              The previously approved collections of
                                            copies of this guidance to the Division                 Adopted Name (USAN) stating that FDA                  information are subject to review by
                                            of Drug Information, Center for Drug                    will no longer object to the use of two-              OMB under the PRA. The collections of
                                            Evaluation and Research, Food and                       letter USAN stems in names for                        information in 21 CFR part 314 have
                                            Drug Administration, 10001 New                          products that do not share any                        been approved under OMB control
                                            Hampshire Ave., Hillandale Building,                    association with the stem in question;                number 0910–0001, and the collections
                                            4th Floor, Silver Spring, MD 20993–                     (b) streamlining the name simulation                  of information in 21 CFR part 601 have
                                            0002. Send one self-addressed adhesive                  study section based on the feedback                   been approved under OMB control
                                            label to assist that office in processing               received; (c) providing clarifications to             number 0910–0338.
                                            your requests. See the SUPPLEMENTARY                    the section that discusses medical
                                                                                                    abbreviations, modifiers, and                         III. Electronic Access
                                            INFORMATION section for electronic
                                            access to the guidance document.                        computational methods; (d) separating                   Persons with access to the internet
                                            FOR FURTHER INFORMATION CONTACT:
                                                                                                    the content pertaining to                             may obtain the document at https://
                                            Lubna Merchant, Center for Drug                         nonprescription proprietary names and                 www.fda.gov/Drugs/
                                            Evaluation and Research, Food and                       issuing separate guidance to address the              GuidanceCompliance
                                            Drug Administration, 10903 New                          name development process for                          RegulatoryInformation/Guidances/
                                            Hampshire Ave., Bldg. 22, Rm. 4418,                     nonprescription drugs; (e) revising the               default.htm, https://www.fda.gov/
                                            Silver Spring, MD 20993–0002, 301–                      misbranding discussion for greater                    vaccines-blood-biologics/guidance-
                                                                                                    clarity and included information on one               compliance-regulatory-information-
                                            796–5162, or Stephen Ripley, Center for
                                                                                                    possible study methodology that                       biologics/biologics-guidances, or https://
                                            Biologics Evaluation and Research,
                                                                                                    sponsors may consider to test proposed                www.regulations.gov.
                                            Food and Drug Administration, 10903
                                                                                                    names for misbranding concerns; and (f)
                                            New Hampshire Ave., Bldg. 71, Rm.                                                                               Dated: December 4, 2020.
                                                                                                    adding certain definitions and specific
                                            7301, Silver Spring, MD 20993–0002,                                                                           Lauren K. Roth,
                                                                                                    criteria for prescreening proprietary
                                            240–402–7911.                                                                                                 Acting Principal Associate Commissioner for
                                                                                                    name candidates and updating
                                            SUPPLEMENTARY INFORMATION:                              definitions in the glossary and clarified             Policy.
                                            I. Background                                           terminology where needed. FDA also                    [FR Doc. 2020–27058 Filed 12–8–20; 8:45 am]
                                                                                                    revised the document throughout to                    BILLING CODE 4164–01–P
                                               FDA is announcing the availability of                ensure consistency in terminology,
                                            a guidance for industry entitled ‘‘Best                 clarified section headings, and
                                            Practices in Developing Proprietary                     reordered information for clarity where               DEPARTMENT OF HEALTH AND
                                            Names for Human Prescription Drug                       applicable.                                           HUMAN SERVICES
                                            Products.’’ This guidance describes best                   Elsewhere in this issue of the Federal
                                            practices to help minimize proprietary                  Register, FDA is announcing the                       Office of the Secretary
                                            name-related medication errors and                      availability of a draft guidance entitled
                                            otherwise avoid adoption of proprietary                                                                       Fourth Amendment to the Declaration
                                                                                                    ‘‘Best Practices in Developing
                                            names that contribute to violations of                                                                        Under the Public Readiness and
                                                                                                    Proprietary Names for Human
                                            the FD&C Act and its implementing                                                                             Emergency Preparedness Act for
                                                                                                    Nonprescription Drug Products.’’ That
                                            regulations. This guidance also                                                                               Medical Countermeasures Against
                                                                                                    draft guidance is issued in response to
                                            describes the framework FDA uses in                                                                           COVID–19 and Republication of the
                                                                                                    industry stakeholders’ requests to
                                            evaluating proprietary names that                                                                             Declaration
                                                                                                    specifically address the approaches for
                                            sponsors could use before submitting                    naming of human nonprescription drug
                                            names for FDA review if they wish.                                                                            ACTION: Notice of Amendment and
                                                                                                    products. The draft guidance is being                 Republished Declaration.
                                               FDA has long recognized the                          issued to provide greater clarity on the
                                            importance of proprietary name                          considerations applicable to                          SUMMARY: The Secretary issues this
                                            confusion as a potential cause of                       nonprescription drug products.                        amendment pursuant to section 319F–3
                                            medication errors and has addressed                        The guidance announced in this                     of the Public Health Service Act to
                                            this issue repeatedly in recent decades.                notice is being issued consistent with                amend his March 10, 2020 Declaration
                                            Our focus has been to develop and                       FDA’s good guidance practices                         Under the Public Readiness and
                                            communicate to sponsors a systematic,                   regulation (21 CFR 10.115). The                       Emergency Preparedness Act for
                                            standardized, and transparent approach                  guidance represents the current thinking              Medical Countermeasures Against
                                            to proprietary name evaluation within                   of FDA on ‘‘Best Practices in Developing              COVID–19.
                                            the product development, review, and                    Proprietary Names for Human
                                            approval process.                                                                                             DATES: The amendments to the
                                                                                                    Prescription Drug Products.’’ It does not
                                               In the Federal Register of May 29,                                                                         Declaration are applicable as of
                                                                                                    establish any rights for any person and
                                            2014 (79 FR 30852), FDA announced the                                                                         February 4, 2020, except as otherwise
                                                                                                    is not binding on FDA or the public.
                                            availability of a draft guidance entitled                                                                     specified in Section XII.
                                                                                                    You can use an alternative approach if




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                                            ‘‘Best Practices in Developing                          it satisfies the requirements of the                  FOR FURTHER INFORMATION CONTACT:
                                            Proprietary Names for Drugs.’’ The                      applicable statutes and regulations.                  Robert P. Kadlec, MD, MTM&H, MS,
                                            guidance announced in this notice                                                                             Assistant Secretary for Preparedness
                                            finalizes the draft guidance issued in                  II. Paperwork Reduction Act of 1995                   and Response, Office of the Secretary,
                                            May 2014. The Agency has carefully                         While this guidance contains no                    Department of Health and Human
                                            reviewed and considered the comments                    collection of information, it does refer to           Services, 200 Independence Avenue


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                                                                     Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Notices                                                      79191

                                            SW, Washington, DC 20201; Telephone:                    cause.3 On August 19, the Secretary                       (c) Adds an additional category of
                                            202–205–2882.                                           amended the Declaration to add                         Qualified Persons under Section V of
                                            SUPPLEMENTARY INFORMATION: The                          additional categories of Qualified                     the Declaration and 42 U.S.C. 247d–
                                            Public Readiness and Emergency                          Persons and to amend the category of                   6d(i)(8)(B), i.e., healthcare personnel
                                            Preparedness (PREP) Act, 42 U.S.C.                      disease, health condition, or threat for               using telehealth to order or administer
                                            247d–6d et. seq., authorizes the                        which he recommends the                                Covered Countermeasures for patients
                                            Secretary of Health and Human Services                  administration or use of Covered                       in a state other than the state where the
                                            (the Secretary) to issue a declaration to               Countermeasures.4                                      healthcare personnel are permitted to
                                            provide liability protections to certain                  The Secretary now further amends the                 practice.7
                                            individuals and entities (Covered                       Declaration pursuant to section 319F–3                    (d) Modifies and clarifies the training
                                            Persons) against any claim of loss                      of the Public Health Service Act. This                 requirements for certain licensed
                                            caused by, arising out of, relating to, or              Fourth Amendment to the Declaration:                   pharmacists and pharmacy interns to
                                            resulting from, the manufacture,                          (a) Clarifies that the Declaration must              administer certain routine childhood or
                                            distribution, administration, or use of                 be construed in accordance with the                    COVID–19 vaccinations.
                                            certain medical countermeasures                         Department of Health and Human
                                                                                                    Services (HHS) Office of the General                      (e) Makes explicit that Section VI
                                            (Covered Countermeasures), except for                                                                          covers all qualified pandemic and
                                            claims involving ‘‘willful misconduct,’’                Counsel (OGC) Advisory Opinions on
                                                                                                    the Public Readiness and Emergency                     epidemic products under the PREP Act.
                                            as defined in the PREP Act. Such
                                            declarations are subject to amendment                   Preparedness Act and the Declaration                      (f) Adds a third method of
                                            as circumstances warrant.                               (Advisory Opinions).5 The Declaration                  distribution under Section VII of the
                                               The PREP Act was enacted on                          incorporates the Advisory Opinions for                 Declaration and 42 U.S.C. 247d–6d(a)(5)
                                            December 30, 2005, as Public Law 109–                   that purpose.                                          that would provide liability protections
                                            148, Division C, Section 2. It amended                    (b) Incorporates authorizations that                 for, among other things, additional
                                            the Public Health Service (PHS) Act,                    the HHS Office of the Assistant                        private-distribution channels.
                                            adding Section 319F–3, which                            Secretary for Health (OASH) has issued                    (g) Makes explicit in Section IX that
                                            addresses liability immunity, and                       as an Authority Having Jurisdiction.6                  there can be situations where not
                                            Section 319F–4, which creates a                                                                                administering a covered countermeasure
                                                                                                      3 85 FR 35100 (June 8, 2020).
                                            compensation program. These sections                                                                           to a particular individual can fall within
                                                                                                      4 85 FR 52136 (Aug. 24, 2020).
                                            are codified at 42 U.S.C. 247d–6d and                      5 See, e.g., Advisory Opinion on the Public
                                                                                                                                                           the PREP Act and this Declaration’s
                                            42 U.S.C. 247d–6e, respectively. Section                Readiness and Emergency Preparedness Act and the
                                                                                                                                                           liability protections.
                                            319F–3 of the PHS Act has been                          March 10, 2020 Declaration under the Act, Apr. 17,        (h) Makes explicit in Section XI that
                                            amended by the Pandemic and All-                        2020, as Modified on May 19, 2020, available at        there are substantial federal legal and
                                            Hazards Preparedness Reauthorization                    https://www.hhs.gov/guidance/sites/default/files/
                                                                                                    hhs-guidance-documents/prep-act-advisory-              policy issues, and substantial federal
                                            Act (PAHPRA), Public Law 113–5,                         opinion-hhs-ogc.pdf (last visited Dec. 1, 2020);       legal and policy interests, in having a
                                            enacted on March 13, 2013, and the                      Advisory Opinion 20–02 on the Public Readiness         unified, whole-of-nation response to the
                                            Coronavirus Aid, Relief, and Economic                   and Emergency Preparedness Act and the                 COVID–19 pandemic among federal,
                                            Security (CARES) Act, Public Law 116–                   Secretary’s Declaration under the Act, May 19,
                                                                                                    2020, available at https://www.hhs.gov/guidance/       state, local, and private-sector entities.
                                            136, enacted on March 27, 2020, to                      sites/default/files/hhs-guidance-documents/            The world is facing an unprecedented
                                            expand Covered Countermeasures under                    advisory-opinion-20-02-hhs-ogc-prep-act.pdf (last      pandemic. To effectively respond, there
                                            the PREP Act.                                           visited Dec. 1, 2020); Advisory Opinion 20–03 on       must be a more consistent pathway for
                                               On January 31, 2020, the Secretary                   the Public Readiness and Emergency Preparedness
                                                                                                    Act and the Secretary’s Declaration under the Act,     Covered Persons to manufacture,
                                            declared a public health emergency                      Oct. 22, 2020, as Modified on Oct. 23, 2020,           distribute, administer or use Covered
                                            pursuant to section 319 of the PHS Act,                 available at https://www.hhs.gov/guidance/sites/       Countermeasures across the nation and
                                            42 U.S.C. 247d, effective January 27,                   default/files/hhs-guidance-documents/AO3.1.2_          the world.
                                            2020, for the entire United States to aid               Updated_FINAL_SIGNED_10.23.20.pdf (last visited
                                                                                                    Dec. 1, 2020); Advisory Opinion 20–04 on the
                                            in the response to the Coronavirus                      Public Readiness and Emergency Preparedness Act        immunity.pdf (last visited Dec. 1, 2020); Guidance
                                            Disease 2019 (COVID–19) outbreak,                       and the Secretary’s Declaration under the Act, Oct.    for PREP Act Coverage for Qualified Pharmacy
                                            which subsequently became a global                      22, 2020, as Modified on Oct. 23, 2020, available      Technicians and State-Authorized Pharmacy
                                            pandemic. Pursuant to section 319 of                    at https://www.hhs.gov/guidance/sites/default/files/   Interns for Childhood Vaccines, COVID–19
                                                                                                    hhs-guidance-documents/AO%204.2_Updated_               Vaccines, and COVID–19 Testing, OASH, Oct. 20,
                                            the PHS Act, the Secretary renewed that                 FINAL_SIGNED_10.23.20.pdf (last visited Dec. 1,        2020, available at https://www.hhs.gov/sites/
                                            declaration on April 21, 2020, July 23,                 2020).                                                 default/files/prep-act-guidance.pdf (last visited
                                            2020, and October 2, 2020. On March                        6 See, e.g., Guidance for Licensed Pharmacists,     Dec. 1, 2020); PREP Act Authorization for
                                            10, 2020, the Secretary issued a                        COVID–19 Testing, and Immunity Under the PREP          Pharmacies Distributing and Administering Certain
                                                                                                    Act, OASH, Apr. 8, 2020, available at https://         Covered Countermeasures, Oct. 29, 2020, available
                                            declaration under the PREP Act for                      www.hhs.gov/guidance/sites/default/files/hhs-          at https://www.hhs.gov/guidance/sites/default/files/
                                            medical countermeasures against                         guidance-documents//authorizing-licensed-              hhs-guidance-documents//prep-act-authorization-
                                            COVID–19.1 On April 10, the Secretary                   pharmacists-to-order-and-administer-covid-19-          pharmacies-administering-covered-
                                            amended the Declaration to extend                       tests.pdf (last visited Dec. 1, 2020); Guidance for    countermeasures.pdf (last visited Dec. 1, 2020)
                                                                                                    PREP Act Coverage for COVID–19 Screening Tests         (collectively, OASH PREP Act Authorizations).
                                            liability protections to Covered                        at Nursing Homes, Assisted-Living Facilities, Long-       7 ‘‘Telehealth, telemedicine, and related terms
                                            Countermeasures authorized under the                    Term-Care Facilities, and other Congregate             generally refer to the exchange of medical
                                            CARES Act.2 On June 4, the Secretary                    Facilities, OASH, Aug. 31, 2020, available at          information from one site to another through
                                            amended the Declaration to clarify that                 https://www.hhs.gov/guidance/sites/default/files/      electronic communication to improve a patient’s
                                                                                                    hhs-guidance-documents//prep-act-coverage-for-         health.’’ Medicare Telemedicine Health Care
                                            Covered Countermeasures under the




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                                                                                                    screening-in-congregate-settings.pdf (last visited     Provider Fact Sheet, Mar. 17, 2020, available at
                                            Declaration include qualified pandemic                  Dec. 1, 2020); Guidance for Licensed Pharmacists       https://www.cms.gov/newsroom/fact-sheets/
                                            and epidemic products that limit the                    and Pharmacy Interns Regarding COVID–19                medicare-telemedicine-health-care-provider-fact-
                                            harm that COVID–19 might otherwise                      Vaccines and Immunity under the PREP Act,              sheet (last visited on Dec. 2, 2020). For the
                                                                                                    OASH, Sept. 3, 2020, available at https://             Declaration and the Fourth Amendment, the term
                                                                                                    www.hhs.gov/guidance/sites/default/files/hhs-          ‘‘telehealth’’ includes telehealth, telemedicine, and
                                              1 85 FR 15198 (Mar. 17, 2020).
                                                                                                    guidance-documents//licensed-pharmacists-and-          related terms as described by the Centers for
                                              2 85 FR 21012 (Apr. 15, 2020).                        pharmacy-interns-regarding-covid-19-vaccines-          Medicare & Medicaid (CMS).



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                                            79192                    Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Notices

                                              (i) Revises the effective time period of              during this pandemic. According to the                    Telehealth, telemedicine, and related terms
                                            the Declaration in light of the                         Centers for Disease Control and                        generally refer to the exchange of medical
                                            amendments to the Declaration.8                         Prevention (CDC),                                      information from one site to another through
                                              The Secretary republishes the                                                                                electronic communication to improve a
                                                                                                       Telehealth services can facilitate public           patient’s health. Innovative uses of this kind
                                            Declaration, as amended, in full. Unless                health mitigation strategies during this               of technology in the provision of healthcare
                                            otherwise noted, all statutory citations                pandemic by increasing social distancing.              is increasing. And with the emergence of the
                                            are to the U.S. Code.                                   These services can be a safer option for               virus causing the disease COVID–19, there is
                                                                                                    [healthcare personnel (HCP)] and patients by           an urgency to expand the use of technology
                                            Description of This Amendment
                                                                                                    reducing potential infectious exposures.               to help people who need routine care, and
                                            Declaration                                             They can reduce the strain on healthcare               keep vulnerable beneficiaries and
                                                                                                    systems by minimizing the surge of patient             beneficiaries with mild symptoms in their
                                              The Declaration has fifteen sections                  demand on facilities and reduce the use of             homes while maintaining access to the care
                                            describing PREP Act coverage for                        [personal protective equipment (PPE)] by               they need. Limiting community spread of the
                                            medical countermeasures against                         healthcare providers.                                  virus, as well as limiting the exposure to
                                            COVID–19. OGC has issued Advisory                          Maintaining continuity of care to the extent        other patients and staff members will slow
                                            Opinions interpreting the PREP Act and                  possible can avoid additional negative                 viral spread.11
                                            reflecting the Secretary’s interpretation               consequences from delayed preventive,                     Accordingly, CMS and other HHS
                                            of the Declaration.9 The Secretary now                  chronic, or routine care. Remote access to             components has substantially expanded
                                            amends the Declaration to clarify that                  healthcare services may increase
                                                                                                    participation for those who are medically or
                                                                                                                                                           the scope of services paid under
                                            the Declaration must be construed in                                                                           Medicare when furnished using
                                                                                                    socially vulnerable or who do not have ready
                                            accordance with the Advisory Opinions.                  access to providers. Remote access can also            telehealth technologies during this
                                            The Secretary expressly incorporates the                help preserve the patient-provider                     pandemic.
                                            Advisory Opinions for that purpose.                     relationship at times when an in-person visit             Other HHS components have also
                                            Section V. Covered Persons                              is not practical or feasible. Telehealth               taken steps to expand the use of
                                                                                                    services can be used to:                               telehealth during the pandemic.12
                                              Section V of the Declaration describes                   • Screen patients who may have symptoms                Moreover, to expand the use of
                                            Covered Persons, including additional                   of COVID–19 and refer as appropriate                   telehealth during this pandemic, the
                                            qualified persons identified by the                        • Provide low-risk urgent care for non-             Office for Civil Rights (OCR) at HHS is
                                            Secretary, as required under the PREP                   COVID–19 conditions, identify those persons            exercising enforcement discretion and
                                            Act. The Secretary amends Section V to                  who may need additional medical
                                                                                                    consultation or assessment, and refer as
                                                                                                                                                           will not impose penalties for
                                            specify an additional category of                                                                              noncompliance with the regulatory
                                            qualified persons. Specifically,                        appropriate
                                                                                                       • Access primary care providers and                 requirements under the Health
                                            healthcare personnel who are permitted                  specialists, including mental and behavioral           Insurance Portability and
                                            to order and administer a Covered                       health, for chronic health conditions and              Accountability Act (HIPAA) Rules
                                            Countermeasure through telehealth in a                  medication management                                  against covered healthcare providers
                                            state may do so for patients in another                    • Provide coaching and support for                  that serve patients through everyday
                                            state so long as the healthcare personnel               patients managing chronic health conditions,           communications technologies during
                                            comply with the legal requirements of                   including weight management and nutrition              the COVID–19 nationwide public health
                                            the state in which the healthcare                       counseling
                                                                                                       • Participate in physical therapy,
                                                                                                                                                           emergency.13 This exercise of discretion
                                            personnel are permitted to order and
                                            administer the Covered Countermeasure                   occupational therapy, and other modalities as
                                                                                                                                                              11 Medicare Telemedicine Health Care Provider
                                            by means of telehealth.                                 a hybrid approach to in-person care for
                                                                                                                                                           Fact Sheet, Mar. 17, 2020, available at https://
                                              Telehealth is widely recognized as a                  optimal health                                         www.cms.gov/newsroom/fact-sheets/medicare-
                                                                                                       • Monitor clinical signs of certain chronic         telemedicine-health-care-provider-fact-sheet (last
                                            valuable tool to promote public health                  medical conditions (e.g., blood pressure,              visited Dec. 1, 2020).
                                                                                                    blood glucose, other remote assessments)                  12 See, e.g., Trump Administration Drives
                                                                                                       • Engage in case management for patients
                                               8 In addition, the Fourth Amendment makes
                                                                                                                                                           Telehealth Services in Medicaid and Medicare,
                                            certain non-substantive changes. Those should not
                                            be interpreted to change any substantive provisions.
                                                                                                    who have difficulty accessing care (e.g., those        CMS, Oct. 14, 2020, available at https://
                                               9 See, e.g., Advisory Opinion on the Public          who live in very rural settings, older adults,         www.cms.gov/newsroom/press-releases/trump-
                                                                                                    those with limited mobility)                           administration-drives-telehealth-services-medicaid-
                                            Readiness and Emergency Preparedness Act and the                                                               and-medicare (last visited Dec. 1, 2020); Secretary
                                            March 10, 2020 Declaration under the Act, Apr. 17,         • Follow up with patients after
                                                                                                                                                           Azar Announces Historic Expansion of Telehealth
                                            2020, as Modified on May 19, 2020, available at         hospitalization                                        Access to Combat COVID–19, Mar. 17, 2020,
                                            https://www.hhs.gov/guidance/sites/default/files/          • Deliver advance care planning and                 available at https://www.hhs.gov/about/news/2020/
                                            hhs-guidance-documents/prep-act-advisory-               counseling to patients and caregivers to               03/17/secretary-azar-announces-historic-
                                            opinion-hhs-ogc.pdf (last visited Dec. 1, 2020);
                                                                                                    document preferences if a life-threatening             expansion-of-telehealth-access-to-combat-covid-
                                            Advisory Opinion 20–02 on the Public Readiness
                                            and Emergency Preparedness Act and the                  event or medical crisis occurs                         19.html (last visited Nov. 30, 2020); OIG Policy
                                            Secretary’s Declaration under the Act, May 19,             • Provide non-emergent care to residents            Statement Regarding Physicians and Other
                                            2020, available at https://www.hhs.gov/guidance/        in long-term care facilities                           Practitioners That Reduce or Waive Amounts Owed
                                            sites/default/files/hhs-guidance-documents/                • Provide education and training for HCP            by Federal Health Care Program Beneficiaries for
                                            advisory-opinion-20-02-hhs-ogc-prep-act.pdf (last                                                              Telehealth Services During the 2019 Novel
                                                                                                    through peer-to-peer professional medical              Coronavirus (COVID–19) Outbreak, Mar. 17, 2020,
                                            visited Dec. 1, 2020); Advisory Opinion 20–03 on        consultations (inpatient or outpatient) that
                                            the Public Readiness and Emergency Preparedness                                                                available at https://oig.hhs.gov/fraud/docs/
                                                                                                    are not locally available, particularly in rural       alertsandbulletins/2020/policy-telehealth-2020.pdf
                                            Act and the Secretary’s Declaration under the Act,
                                            Oct. 22, 2020, as Modified on Oct. 23, 2020,            areas.10                                               (last visited Nov. 30, 2020).
                                                                                                                                                              13 OCR Announces Notification of Enforcement
                                            available at https://www.hhs.gov/guidance/sites/
                                            default/files/hhs-guidance-documents/AO3.1.2_             Similarly, CMS has stressed the                      Discretion for Telehealth Remote Communications
                                            Updated_FINAL_SIGNED_10.23.20.pdf (last visited         importance of telehealth during this                   During the COVID–19 Nationwide Public Health




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                                            Dec. 1, 2020); Advisory Opinion 20–04 on the            pandemic:                                              Emergency, Mar. 17, 2020, available at https://
                                            Public Readiness and Emergency Preparedness Act                                                                www.hhs.gov/about/news/2020/03/17/ocr-
                                            and the Secretary’s Declaration under the Act, Oct.                                                            announces-notification-of-enforcement-discretion-
                                            22, 2020, as Modified on Oct. 23, 2020, available          10 Using Telehealth to Expand Access to Essential   for-telehealth-remote-communications-during-the-
                                            at https://www.hhs.gov/guidance/sites/default/files/    Health Services during the COVID–19 Pandemic,          covid-19.html (last visited Dec. 1, 2020). The PREP
                                            hhs-guidance-documents/AO%204.2_Updated_                CDC, updated June 10, 2020, available at https://      Act does not provide immunity against federal
                                            FINAL_SIGNED_10.23.20.pdf (last visited Dec. 1,         www.cdc.gov/coronavirus/2019-ncov/hcp/                 enforcement actions brought by the federal
                                            2020).                                                  telehealth.html (last visited Dec. 1, 2020).           government. We refer to this exercise of



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                                                                       Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Notices                                                     79193

                                            applies to widely available                                U.S.C. 247d–6d(i)(8)(B) includes                      examples are not an exclusive or
                                            communications apps, such as                               healthcare personnel using telehealth to              exhaustive list of persons who are
                                            FaceTime or Skype, when used in good                       order or administer Covered                           qualified persons identified by the
                                            faith for any telehealth treatment or                      Countermeasures for patients in a state               Secretary in Section V.
                                            diagnostic purpose, regardless of                          other than the state where the                           The Secretary also amends Section V
                                            whether the telehealth service is                          healthcare personnel are permitted to                 to make explicit that the requirement in
                                            directly related to COVID–19.14                            practice. When ordering and                           that section for certain qualified persons
                                               Many states have authorized out-of-                     administering Covered Countermeasures                 to have a current certificate in basic
                                            state healthcare personnel to deliver                      through telehealth to patients in a state
                                                                                                                                                             cardiopulmonary resuscitation is
                                            telehealth services to in-state patients,                  where the healthcare personnel are not
                                            either generally or in the context of                                                                            satisfied by, among other things, a
                                                                                                       already permitted to do so, the
                                            COVID–19.15                                                                                                      certification in basic cardiopulmonary
                                                                                                       healthcare personnel must comply with
                                               To help maximize the utility of                                                                               resuscitation by an online program that
                                                                                                       all requirements for ordering and
                                            telehealth, the Secretary declares that                                                                          has received accreditation from the
                                                                                                       administering Covered Countermeasures
                                            the term ‘‘qualified person’’ under 42                     to patients through telehealth in the                 American Nurses Credentialing Center,
                                                                                                       state where the healthcare personnel are              the Accreditation Council for Pharmacy
                                            enforcement discretion as another example of the           licensed or otherwise permitted to                    Education (ACPE), or the Accreditation
                                            Department’s desire to support the expanded use of
                                                                                                       practice. Any state law that prohibits or             Council for Continuing Medical
                                            telehealth during this pandemic.                                                                                 Education.
                                               14 Id.                                                  effectively prohibits such a qualified
                                               15 See, e.g., 2020 Alaska Laws Ch. 10 (S.B. 241)        person from ordering and administering                   The Secretary also amends Section
                                            Sec. 7 (healthcare provider can perform telehealth         Covered Countermeasures through                       V’s training requirements for licensed
                                            if, among other things, ‘‘the health care provider is      telehealth is preempted.16 Nothing in                 pharmacists to order and administer
                                            licensed, permitted, or certified to provide
                                            healthcare services in another jurisdiction and is in
                                                                                                       this Declaration shall preempt state laws             certain childhood or COVID–19
                                            good standing in the jurisdiction that issued the          that permit additional persons to deliver             vaccines. To order and administer
                                            license, permit, or certification’’); CT Exec. Order       telehealth services.                                  vaccines, the licensed pharmacist must
                                            No. 7G, Sec. 5(b), Mar. 19, 2020, available at https://       The Secretary also amends Section V                have completed the immunization
                                            portal.ct.gov/-/media/Office-of-the-Governor/
                                            Executive-Orders/Lamont-Executive-Orders/
                                                                                                       to include several examples of Covered                training that the licensing State requires
                                            Executive-Order-No-7G.pdf (last visited Dec. 1,            Persons who are Qualified Persons,                    in order for pharmacists to administer
                                            2020) (‘‘Subsection (a)(12)’s requirements for the         because they are authorized in                        vaccines. If the State does not specify
                                            licensure, certification or registration of telehealth     accordance with the public health and
                                            providers shall be suspended for such telehealth
                                                                                                                                                             training requirements for the licensed
                                            providers that are Medicaid enrolled providers or
                                                                                                       medical emergency response of the                     pharmacist to order and administer
                                            in-network providers for commercial fully insured          Authority Having Jurisdiction to                      vaccines, the licensed pharmacist must
                                            health insurance providing telehealth services to          prescribe, administer, deliver, distribute            complete a vaccination training program
                                            patients’’); Fl. Emerg. Order, DOH No. 20–002, In          or dispense the Covered
                                            Re: Suspension of Statutes, Rules, and Orders,
                                                                                                                                                             of at least 20 hours that is approved by
                                            Made Necessary by COVID–19, Mar. 16, 2020,
                                                                                                       Countermeasures. Those examples                       the Accreditation Council for Pharmacy
                                            available at http://www.flhealthsource.gov/pdf/            include certain pharmacists, pharmacy                 Education (ACPE) to order and
                                            emergencyorder-20-002.pdf?inf_contact_                     interns, and pharmacy technicians who                 administer vaccines. This training
                                            key=c1be7c474d297aa416752a23d269                           order or administer certain COVID–19
                                            4901680f8914173f9191b1c0223e68310bb1 (last                                                                       program must include hands-on
                                            visited Dec. 1, 2020) (‘‘For purposes of preparing
                                                                                                       tests and certain vaccines.17 These                   injection technique, clinical evaluation
                                            for, responding to, and mitigating any effect of                                                                 of indications and contraindications of
                                                                                                          16 Advisory Opinion 20–02 on the Public
                                            COVID–19, health care professionals not licensed in
                                            this state may provide health care services to a           Readiness and Emergency Preparedness Act and the      vaccines, and the recognition and
                                            patient licensed in this state using telehealth,           Secretary’s Declaration under the Act, May 19,        treatment of emergency reactions to
                                            notwithstanding the requirements of section                2020, available at https://www.hhs.gov/guidance/      vaccines.
                                            456.47(4)(a) through (c), (h), and (i), Florida Statutes   sites/default/files/hhs-guidance-documents/
                                            . . . . This exemption shall apply only to the             advisory-opinion-20-02-hhs-ogc-prep-act.pdf (last        Other than the basic cardiopulmonary
                                            following out of state health care professionals           visited Dec. 1, 2020).                                resuscitation requirement and the
                                            holding a valid, clear, and unrestricted license in           17 See, e.g., Guidance for Licensed Pharmacists,
                                                                                                                                                             practical training program requirement,
                                            another state or territory in the United States who        COVID–19 Testing, and Immunity Under the PREP
                                            are not currently under investigation or prosecution       Act, OASH, Apr. 8, 2020, available at https://
                                                                                                                                                             this Amendment does not change the
                                            in any disciplinary proceeding in any of the states        www.hhs.gov/guidance/sites/default/files/hhs-         requirements for a pharmacist,
                                            in which they hold a license: physicians,                  guidance-documents//authorizing-licensed-             pharmacy intern, or pharmacy
                                            osteopathic physicians, physician assistants, and          pharmacists-to-order-and-administer-covid-19-         technician to be a ‘‘qualified person’’
                                            advanced practice registered nurses.’’); IA Emer.          tests.pdf (last visited Dec. 1, 2020); Guidance for
                                            Dec., Sec. 39 (Nov. 10, 2020), available at https://       PREP Act Coverage for COVID–19 Screening Tests        under 42 U.S.C. 247d–6d(i)(8)(B) who
                                            governor.iowa.gov/sites/default/files/documents/           at Nursing Homes, Assisted-Living Facilities, Long-   can order or administer childhood or
                                            Public%20Health%20Proclamation%20-                         Term-Care Facilities, and other Congregate            COVID–19 vaccines pursuant to the
                                            %202020.11.10.pdf (last visited Dec. 1, 2020)              Facilities, OASH, Aug. 31, 2020, available at         Declaration.
                                            (temporarily suspending any statute or rule defining       https://www.hhs.gov/guidance/sites/default/files/
                                            a doctor or medical staff as ‘‘requiring all doctors       hhs-guidance-documents//prep-act-coverage-for-        Section VI. Covered Countermeasures
                                            and medical staff be licensed to practice in this          screening-in-congregate-settings.pdf (last visited
                                            state, to the extent that individual is licensed to        Dec. 1, 2020); Guidance for Licensed Pharmacists
                                            practice in another state’’); NH Emer. Order # 15          and Pharmacy Interns Regarding COVID–19
                                                                                                                                                               The Secretary amends Section VI to
                                            Pursuant to Exec. Order 2020–4, Sec. 1, Mar. 23,           Vaccines and Immunity under the PREP Act,             make explicit that Section VI covers all
                                            2020, available at https://www.governor.nh.gov/            OASH, Sept. 3, 2020, available at https://            qualified pandemic and epidemic
                                            sites/g/files/ehbemt336/files/documents/                   www.hhs.gov/guidance/sites/default/files/hhs-         products under the PREP Act.
                                            emergency-order-15.pdf (last visited Dec. 1, 2020)         guidance-documents//licensed-pharmacists-and-




jbell on DSKJLSW7X2PROD with NOTICES
                                            (‘‘any out-of-state medical provider whose                 pharmacy-interns-regarding-covid-19-vaccines-
                                            profession is licensed within this State shall be          immunity.pdf (last visited Dec. 1, 2020); Guidance    Dec. 1, 2020); PREP Act Authorization for
                                            allowed to perform any medically necessary service         for PREP Act Coverage for Qualified Pharmacy          Pharmacies Distributing and Administering Certain
                                            as if the medical provider were licensed to perform        Technicians and State-Authorized Pharmacy             Covered Countermeasures, Oct. 29, 2020, available
                                            such service within the state of New Hampshire             Interns for Childhood Vaccines, COVID–19              at https://www.hhs.gov/guidance/sites/default/files/
                                            subject to,’’ among other things, the medical              Vaccines, and COVID–19 Testing, OASH, Oct. 20,        hhs-guidance-documents//prep-act-authorization-
                                            provider being ‘‘licensed and in good standing in          2020, available at https://www.hhs.gov/sites/         pharmacies-administering-covered-
                                            another United States jurisdiction’’).                     default/files/prep-act-guidance.pdf (last visited     countermeasures.pdf (last visited Dec. 1, 2020).



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                                            79194                    Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Notices

                                            Section VII. Limitations on Distribution                to the FDA licensure, approval,                       a Covered Person for death or serious
                                               The Secretary may specify that                       clearance, or authorization (or pursuant              physical injury proximately caused by
                                            liability protections are in effect only for            to an Investigational New Drug                        willful misconduct by such Covered
                                            Covered Countermeasures obtained                        Application or Investigational Device                 Person. In all other cases, an injured
                                            through a particular means of                           Exemption), or the NIOSH approval.                    party’s exclusive remedy is an
                                                                                                      This third distribution channel may                 administrative remedy under section
                                            distribution. The Declaration previously
                                                                                                    extend PREP Act coverage when there is                319F–4 of the PHS Act. Through the
                                            stated that liability immunity is afforded
                                                                                                    no federal agreement or authorization in              PREP Act, Congress delegated to me the
                                            to Covered Persons only for
                                                                                                    accordance with the public health and                 authority to strike the appropriate
                                            Recommended Activities related to (a)
                                                                                                    medical response of the Authority                     Federal-state balance with respect to
                                            present or future federal contracts,
                                                                                                    Having Jurisdiction to prescribe,                     particular Covered Countermeasures
                                            cooperative agreements, grants, other
                                                                                                    administer, deliver, distribute or                    through PREP Act declarations.
                                            transactions, interagency agreements, or                dispense the Covered Countermeasures
                                            memoranda of understanding or other                     following a declaration of an emergency.              Section XII. Effective Time Period
                                            federal agreements; or (b) activities                   For example, a manufacturer,                             The Secretary amends Section XII to
                                            authorized in accordance with the                       distributor, program planner, or                      provide that liability protections for all
                                            public health and medical response of                   qualified person engages in                           Covered Countermeasures administered
                                            the Authority Having Jurisdiction to                    manufacturing, testing, development,                  and used in accordance with the public
                                            prescribe, administer, deliver,                         distribution, administration, or use of a             health and medical response of the
                                            distribute, or dispense the Covered                     COVID–19 test pursuant to an FDA                      Authority Having Jurisdiction, as
                                            Countermeasures following a                             Emergency Use Authorization for that                  identified in Section VII(b) of this
                                            declaration of an emergency.                            COVID–19 test. If the Covered Person                  Declaration, begins with a ‘‘Declaration
                                               COVID–19 is an unprecedented global                  satisfies all other requirements of the               of Emergency,’’ as defined in Section VII
                                            challenge that requires a whole-of-                     PREP Act and Declaration, there will be               (except that, with respect to qualified
                                            nation response that utilizes federal-,                 PREP Act coverage even if there is no                 persons who order or administer a
                                            state-, and local- distribution channels                federal agreement to cover those                      routine childhood vaccination that ACIP
                                            as well as private-distribution channels.               activities and those activities are not               recommends to persons ages three
                                            Given the broad scale of this pandemic,                 part of the authorized activity of an                 through 18 according to ACIP’s standard
                                            the Secretary amends the Declaration to                 Authority Having Jurisdiction.                        immunization schedule, PREP Act
                                            extend PREP Act coverage to additional                                                                        coverage began on August 24, 2020),
                                            private-distribution channels, as set                   Section IX. Administration of Covered
                                                                                                    Countermeasures                                       and lasts through (a) the final day the
                                            forth below.                                                                                                  Declaration of Emergency is in effect, or
                                               The amended Section VII adds that                       The Secretary amends Section IX to                 (b) October 1, 2024, whichever occurs
                                            PREP Act liability protections also                     make explicit that there can be                       first. This change is to conform the text
                                            extend to Covered Persons for                           situations where not administering a                  of the Declaration to the Third
                                            Recommended Activities that are                         covered countermeasure to a particular                Amendment.18
                                            related to any Covered Countermeasure                   individual can fall within the PREP Act                  The Secretary also amends Section XII
                                            that is:                                                and this Declaration’s liability                      to provide that liability protections for
                                               (a) Licensed, approved, cleared, or                  protections.                                          all Covered Countermeasures identified
                                            authorized by the Food and Drug                                                                               in Section VII(c) of this Declaration
                                            Administration (FDA) (or that is                        Section XI. Geographic Area
                                                                                                                                                          begins on the date of this amended
                                            permitted to be used under an                              The Secretary makes explicit in
                                                                                                                                                          Declaration and lasts through (a) the
                                            Investigational New Drug Application or                 Section XI that there are substantial
                                                                                                                                                          final day the Declaration of Emergency
                                            an Investigational Device Exemption)                    federal legal and policy issues, and
                                                                                                                                                          is in effect, or (b) October 1, 2024,
                                            under the Federal Food, Drug, and                       substantial federal legal and policy
                                                                                                                                                          whichever occurs first. Because the
                                            Cosmetic (FD&C) Act or Public Health                    interests within the meaning of Grable
                                                                                                                                                          Secretary is adding Section VII(c) to the
                                            Service (PHS) Act to treat, diagnose,                   & Sons Metal Products, Inc. v. Darue
                                                                                                                                                          Declaration in this Amendment, Section
                                            cure, prevent, mitigate or limit the harm               Eng’g. & Mf’g., 545 U.S. 308 (2005), in
                                                                                                                                                          XII provides that Section VII(c) is
                                            from COVID–19, or the transmission of                   having a unified, whole-of-nation
                                                                                                                                                          effective as of the date this amended
                                            SARS–CoV–2 or a virus mutating                          response to the COVID–19 pandemic
                                                                                                                                                          Declaration is published.
                                            therefrom; or                                           among federal, state, local, and private-
                                               (b) a respiratory protective device                  sector entities. The world is facing an               Additional Amendments
                                            approved by the National Institute for                  unprecedented global pandemic. To                       The Secretary also makes other, non-
                                            Occupational Safety and Health                          effectively respond, there must be a                  substantive amendments.
                                            (NIOSH) under 42 CFR part 84, or any                    more consistent pathway for Covered
                                            successor regulations, that the Secretary               Persons to manufacture, distribute,                   Declaration, as Amended, for Public
                                            determines to be a priority for use                     administer or use Covered                             Readiness and Emergency
                                            during a public health emergency                        Countermeasures across the nation and                 Preparedness Act Coverage for Medical
                                            declared under section 319 of the PHS                   the world. Thus, there are substantial                Countermeasures Against COVID–19
                                            Act to prevent, mitigate, or limit the                  federal legal and policy issues, and                    To the extent any term previously in
                                            harm from, COVID–19, or the                             substantial federal legal and policy                  the Declaration, including its
                                            transmission of SARS–CoV–2 or a virus                   interests within the meaning of Grable                amendments, is inconsistent with any
                                            mutating therefrom.                                     & Sons Metal Products, Inc. v. Darue                  provision of this Republished




jbell on DSKJLSW7X2PROD with NOTICES
                                               To qualify for this third distribution               Eng’g. & Mf’g., 545 U.S. 308 (2005), in               Declaration, the terms of this
                                            channel (but not necessarily to qualify                 having a uniform interpretation of the                Republished Declaration are controlling.
                                            for the other distribution channels), a                 PREP Act. Under the PREP Act, the sole                This Declaration must be construed in
                                            Covered Person must manufacture, test,                  exception to the immunity from suit and               accordance with the Advisory Opinions
                                            develop, distribute, administer, or use                 liability of covered persons is an
                                            the Covered Countermeasure pursuant                     exclusive Federal cause of action against               18 See 85 FR 52136 (Aug. 24, 2020).




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                                                                     Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Notices                                                      79195

                                            of the Office of the General Counsel                    distribution, administration, and use of                  (b) any person authorized to
                                            (Advisory Opinions). I incorporate those                the Covered Countermeasures.                           prescribe, administer, or dispense the
                                            Advisory Opinions as part of this                                                                              Covered Countermeasures or who is
                                                                                                    IV. Liability Protections
                                            Declaration.19 This Declaration is a                                                                           otherwise authorized to perform an
                                            ‘‘requirement’’ under the PREP Act.                     42 U.S.C. 247d–6d(a), 247d–6d(b)(1)                    activity under an Emergency Use
                                                                                                      Liability protections as prescribed in               Authorization in accordance with
                                            I. Determination of Public Health                                                                              Section 564 of the FD&C Act;
                                            Emergency                                               the PREP Act and conditions stated in
                                                                                                                                                              (c) any person authorized to prescribe,
                                                                                                    this Declaration are in effect for the
                                            42 U.S.C. 247d–6d(b)(1)                                                                                        administer, or dispense Covered
                                                                                                    Recommended Activities described in
                                                                                                                                                           Countermeasures in accordance with
                                              I have determined that the spread of                  Section III.
                                                                                                                                                           Section 564A of the FD&C Act;
                                            SARS–CoV–2 or a virus mutating                          V. Covered Persons                                        (d) a State-licensed pharmacist who
                                            therefrom and the resulting disease                                                                            orders and administers, and pharmacy
                                            COVID–19 constitutes a public health                    42 U.S.C. 247d–6d(i)(2), (3), (4), (6),                interns who administer (if the pharmacy
                                            emergency. I further determine that use                 (8)(A) and (B)                                         intern acts under the supervision of
                                            of any respiratory protective device                       Covered Persons who are afforded                    such pharmacist and the pharmacy
                                            approved by NIOSH under 42 CFR part                     liability protections under this                       intern is licensed or registered by his or
                                            84, or any successor regulations, is a                  Declaration are ‘‘manufacturers,’’                     her State board of pharmacy), 21 (1)
                                            priority for use during the public health               ‘‘distributors,’’ ‘‘program planners,’’ and            vaccines that the Advisory Committee
                                            emergency that I declared on January                    ‘‘qualified persons,’’ as those terms are              on Immunization Practices (ACIP)
                                            31, 2020 under section 319 of the PHS                   defined in the PREP Act; their officials,              recommends to persons ages three
                                            Act for the entire United States to aid in              agents, and employees; and the United                  through 18 according to ACIP’s standard
                                            the response of the nation’s healthcare                 States.                                                immunization schedule or (2) FDA-
                                            community to the COVID–19 outbreak.                        In addition, I have determined that                 authorized or FDA-licensed COVID–19
                                            II. Factors Considered                                  the following additional persons are                   vaccines to persons ages three or older.
                                                                                                    qualified persons:                                     Such State-licensed pharmacists and the
                                            42 U.S.C. 247d–6d(b)(6)                                    (a) Any person authorized in                        State-licensed or registered interns
                                               I have considered the desirability of                accordance with the public health and                  under their supervision are qualified
                                            encouraging the design, development,                    medical emergency response of the                      persons only if the following
                                            clinical testing, or investigation,                     Authority Having Jurisdiction, as                      requirements are met:
                                            manufacture, labeling, distribution,                    described in Section VII below, to                        i. The vaccine must be authorized,
                                            formulation, packaging, marketing,                      prescribe, administer, deliver, distribute             approved, or licensed by the FDA;
                                            promotion, sale, purchase, donation,                    or dispense the Covered                                   ii. In the case of a COVID–19 vaccine,
                                            dispensing, prescribing, administration,                Countermeasures, and their officials,                  the vaccination must be ordered and
                                            licensing, and use of the Covered                       agents, employees, contractors and                     administered according to ACIP’s
                                            Countermeasures.                                        volunteers, following a Declaration of                 COVID–19 vaccine recommendation(s).
                                                                                                    Emergency, as that term is defined in                     iii. In the case of a childhood vaccine,
                                            III. Recommended Activities                             Section VII of this Declaration; 20                    the vaccination must be ordered and
                                                                                                                                                           administered according to ACIP’s
                                            42 U.S.C. 247d–6d(b)(1)                                    20 See, e.g., Guidance for Licensed Pharmacists,    standard immunization schedule;
                                              I recommend, under the conditions                     COVID–19 Testing, and Immunity Under the PREP             iv. The licensed pharmacist must
                                            stated in this Declaration, the                         Act, OASH, Apr. 8, 2020, available at https://         have completed the immunization
                                                                                                    www.hhs.gov/guidance/sites/default/files/hhs-
                                            manufacture, testing, development,                      guidance-documents//authorizing-licensed-
                                                                                                                                                           training that the licensing State requires
                                                                                                    pharmacists-to-order-and-administer-covid-19-          in order for pharmacists to order and
                                               19 See, e.g., Advisory Opinion on the Public         tests.pdf (last visited Dec. 1, 2020); Guidance for    administer vaccines. If the State does
                                            Readiness and Emergency Preparedness Act and the        PREP Act Coverage for COVID–19 Screening Tests         not specify training requirements for the
                                            March 10, 2020 Declaration under the Act, Apr. 17,      at Nursing Homes, Assisted-Living Facilities, Long-
                                            2020, as Modified on May 19, 2020, available at         Term-Care Facilities, and other Congregate
                                                                                                                                                           licensed pharmacist to order and
                                            https://www.hhs.gov/guidance/sites/default/files/       Facilities, OASH, Aug. 31, 2020, available at          administer vaccines, the licensed
                                            hhs-guidance-documents/prep-act-advisory-               https://www.hhs.gov/guidance/sites/default/files/      pharmacist must complete a vaccination
                                            opinion-hhs-ogc.pdf (last visited Dec. 1, 2020);        hhs-guidance-documents//prep-act-coverage-for-         training program of at least 20 hours
                                            Advisory Opinion 20–02 on the Public Readiness          screening-in-congregate-settings.pdf (last visited
                                            and Emergency Preparedness Act and the                  Dec. 1, 2020); Guidance for Licensed Pharmacists
                                                                                                                                                           that is approved by the Accreditation
                                            Secretary’s Declaration under the Act, May 19,          and Pharmacy Interns Regarding COVID–19
                                            2020, available at https://www.hhs.gov/guidance/        Vaccines and Immunity under the PREP Act,              the Declaration, the foregoing are the only persons
                                            sites/default/files/hhs-guidance-documents/             OASH, Sept. 3, 2020, available at https://             authorized in accordance with the public health
                                            advisory-opinion-20-02-hhs-ogc-prep-act.pdf (last       www.hhs.gov/guidance/sites/default/files/hhs-          and medical emergency response of the Authority
                                            visited Dec. 1, 2020); Advisory Opinion 20–03 on        guidance-documents//licensed-pharmacists-and-          Having Jurisdiction.
                                            the Public Readiness and Emergency Preparedness         pharmacy-interns-regarding-covid-19-vaccines-             21 Some states do not require pharmacy interns to

                                            Act and the Secretary’s Declaration under the Act,      immunity.pdf (last visited Dec. 1, 2020); Guidance     be licensed or registered by the state board of
                                            Oct. 22, 2020, as Modified on Oct. 23, 2020,            for PREP Act Coverage for Qualified Pharmacy           pharmacy. As used herein, ‘‘State-licensed or
                                            available at https://www.hhs.gov/guidance/sites/        Technicians and State-Authorized Pharmacy              registered intern’’ (or equivalent phrases) refers to
                                            default/files/hhs-guidance-documents/AO3.1.2_           Interns for Childhood Vaccines, COVID–19               pharmacy interns authorized by the state or board
                                            Updated_FINAL_SIGNED_10.23.20.pdf (last visited         Vaccines, and COVID–19 Testing, OASH, Oct. 20,         of pharmacy in the state in which the practical
                                            Dec. 1, 2020); Advisory Opinion 20–04 on the            2020, available at https://www.hhs.gov/sites/          pharmacy internship occurs. The authorization can,
                                            Public Readiness and Emergency Preparedness Act         default/files/prep-act-guidance.pdf (last visited      but need not, take the form of a license from, or
                                            and the Secretary’s Declaration under the Act, Oct.     Dec. 1, 2020); PREP Act Authorization for              registration with, the State board of pharmacy. See




jbell on DSKJLSW7X2PROD with NOTICES
                                            22, 2020, as Modified on Oct. 23, 2020, available       Pharmacies Distributing and Administering Certain      Guidance for PREP Act Coverage for Qualified
                                            at https://www.hhs.gov/guidance/sites/default/files/    Covered Countermeasures, Oct. 29, 2020, available      Pharmacy Technicians and State-Authorized
                                            hhs-guidance-documents/AO%204.2_Updated_                at https://www.hhs.gov/guidance/sites/default/files/   Pharmacy Interns for Childhood Vaccines, COVID–
                                            FINAL_SIGNED_10.23.20.pdf (last visited Dec. 1,         hhs-guidance-documents//prep-act-authorization-        19 Vaccines, and COVID–19 Testing, OASH, Oct.
                                            2020). This is not to suggest that other PREP Act       pharmacies-administering-covered-                      20, 2020 at 2, available at https://www.hhs.gov/
                                            declarations should be construed in a manner            countermeasures.pdf (last visited Dec. 1, 2020)        guidance/sites/default/files/hhs-guidance-
                                            contrary to the interpretation provided in the          (collectively, OASH PREP Act Authorizations).          documents//prep-act-guidance.pdf (last visited Dec.
                                            Advisory Opinions.                                      Nothing herein shall suggest that, for purposes of     1, 2020).



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                                            79196                     Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Notices

                                            Council for Pharmacy Education (ACPE)                   importance of a well-child visit with a                  (a) Any antiviral, any drug, any
                                            to order and administer vaccines. Such                  pediatrician or other licensed primary                biologic, any diagnostic, any other
                                            a training program must include hands-                  care provider and refer patients as                   device, any respiratory protective
                                            on injection technique, clinical                        appropriate.                                          device, or any vaccine manufactured,
                                            evaluation of indications and                              x. The licensed pharmacist and the                 used, designed, developed, modified,
                                            contraindications of vaccines, and the                  licensed or registered pharmacy intern                licensed, or procured:
                                            recognition and treatment of emergency                  must comply with any applicable                          i. To diagnose, mitigate, prevent, treat,
                                            reactions to vaccines;                                  requirements (or conditions of use) as                or cure COVID–19, or the transmission
                                               v. The licensed or registered                        set forth in the Centers for Disease                  of SARS–CoV–2 or a virus mutating
                                            pharmacy intern must complete a                         Control and Prevention (CDC) COVID–                   therefrom; or
                                            practical training program that is                      19 vaccination provider agreement and                    ii. to limit the harm that COVID–19,
                                            approved by the ACPE. This training                     any other federal requirements that                   or the transmission of SARS–CoV–2 or
                                            program must include hands-on                           apply to the administration of COVID–                 a virus mutating therefrom, might
                                            injection technique, clinical evaluation                19 vaccine(s).                                        otherwise cause;
                                            of indications and contraindications of                    (e) Healthcare personnel using                        (b) a product manufactured, used,
                                            vaccines, and the recognition and                       telehealth to order or administer                     designed, developed, modified,
                                            treatment of emergency reactions to                     Covered Countermeasures for patients                  licensed, or procured to diagnose,
                                            vaccines;                                               in a state other than the state where the             mitigate, prevent, treat, or cure a serious
                                               vi. The licensed pharmacist and                      healthcare personnel are licensed or                  or life-threatening disease or condition
                                            licensed or registered pharmacy intern                  otherwise permitted to practice. When                 caused by a product described in
                                            must have a current certificate in basic                ordering and administering Covered                    paragraph (a) above;
                                            cardiopulmonary resuscitation; 22                       Countermeasures by means of telehealth                   (c) a product or technology intended
                                               vii. The licensed pharmacist must                    to patients in a state where the                      to enhance the use or effect of a product
                                            complete a minimum of two hours of                      healthcare personnel are not already                  described in paragraph (a) or (b) above;
                                            ACPE-approved, immunization-related                     permitted to practice, the healthcare                 or
                                            continuing pharmacy education during                    personnel must comply with all                           (d) any device used in the
                                            each State licensing period;                            requirements for ordering and                         administration of any such product, and
                                               viii. The licensed pharmacist must                   administering Covered Countermeasures                 all components and constituent
                                            comply with recordkeeping and                           to patients by means of telehealth in the             materials of any such product.
                                            reporting requirements of the                           state where the healthcare personnel are                 To be a Covered Countermeasure
                                            jurisdiction in which he or she                         permitted to practice. Any state law that             under the Declaration, a product must
                                            administers vaccines, including                         prohibits or effectively prohibits such a             also meet 42 U.S.C. 247d–6d(i)(1)’s
                                            informing the patient’s primary-care                    qualified person from ordering and                    definition of ‘‘Covered
                                            provider when available, submitting the                 administering Covered Countermeasures                 Countermeasure.’’
                                            required immunization information to                    by means of telehealth is preempted.23                VII. Limitations on Distribution
                                            the State or local immunization                         Nothing in this Declaration shall
                                            information system (vaccine registry),                  preempt state laws that permit                        42 U.S.C. 247d–6d(a)(5) and (b)(2)(E)
                                            complying with requirements with                        additional persons to deliver telehealth                 I have determined that liability
                                            respect to reporting adverse events, and                services.                                             protections are afforded to Covered
                                            complying with requirements whereby                        Nothing in this Declaration shall be               Persons only for Recommended
                                            the person administering a vaccine must                 construed to affect the National Vaccine              Activities involving:
                                            review the vaccine registry or other                    Injury Compensation Program,                             (a) Covered Countermeasures that are
                                            vaccination records prior to                            including an injured party’s ability to               related to present or future federal
                                            administering a vaccine; and                            obtain compensation under that                        contracts, cooperative agreements,
                                               ix. The licensed pharmacist must                     program. Covered Countermeasures that                 grants, other transactions, interagency
                                            inform his or her childhood-vaccination                 are subject to the National Vaccine                   agreements, memoranda of
                                            patients and the adult caregiver                        Injury Compensation Program                           understanding, or other federal
                                            accompanying the child of the                           authorized under 42 U.S.C. 300aa–10 et                agreements;
                                                                                                    seq. are covered under this Declaration                  (b) Covered Countermeasures that are
                                               22 This requirement is satisfied by, among other
                                                                                                    for the purposes of liability immunity                related to activities authorized in
                                            things, a certification in basic cardiopulmonary
                                            resuscitation by an online program that has
                                                                                                    and injury compensation only to the                   accordance with the public health and
                                            received accreditation from the American Nurses         extent that injury compensation is not                medical response of the Authority
                                            Credentialing Center, the ACPE, or the                  provided under that Program. All other                Having Jurisdiction to prescribe,
                                            Accreditation Council for Continuing Medical            terms and conditions of the Declaration
                                            Education. The phrase ‘‘current certificate in basic
                                                                                                                                                          administer, deliver, distribute or
                                            cardiopulmonary resuscitation,’’ when used in the
                                                                                                    apply to such Covered                                 dispense the Covered Countermeasures
                                            September 3, 2020 or October 20, 2020 OASH              Countermeasures.                                      following a Declaration of Emergency;
                                            authorizations, shall be interpreted the same way.                                                            or
                                            See Guidance for Licensed Pharmacists and               VI. Covered Countermeasures
                                            Pharmacy Interns Regarding COVID–19 Vaccines
                                                                                                                                                             (c) Covered Countermeasures that are:
                                            and Immunity under the PREP Act, OASH, Sept. 3,
                                                                                                    42 U.S.C. 247d–6b(c)(1)(B), 42 U.S.C.                    i. Licensed, approved, cleared, or
                                            2020, available at https://www.hhs.gov/guidance/        247d–6d(i)(1) and (7)                                 authorized by the FDA (or that are
                                            sites/default/files/hhs-guidance-documents//                                                                  permitted to be used under an
                                            licensed-pharmacists-and-pharmacy-interns-
                                                                                                      Covered Countermeasures are:
                                                                                                                                                          Investigational New Drug Application or




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                                            regarding-covid-19-vaccines-immunity.pdf (last
                                            visited Dec. 1, 2020); Guidance for PREP Act              23 See, e.g., Advisory Opinion 20–02 on the         an Investigational Device Exemption)
                                            Coverage for Qualified Pharmacy Technicians and         Public Readiness and Emergency Preparedness Act       under the FD&C Act or PHS Act to treat,
                                            State-Authorized Pharmacy Interns for Childhood         and the Secretary’s Declaration under the Act, May    diagnose, cure, prevent, mitigate, or
                                            Vaccines, COVID–19 Vaccines, and COVID–19               19, 2020, available at https://www.hhs.gov/
                                            Testing, OASH, Oct. 20, 2020, available at https://     guidance/sites/default/files/hhs-guidance-
                                                                                                                                                          limit the harm from COVID–19, or the
                                            www.hhs.gov/sites/default/files/prep-act-               documents/advisory-opinion-20-02-hhs-ogc-prep-        transmission of SARS–CoV–2 or a virus
                                            guidance.pdf (last visited Dec. 1, 2020).               act.pdf (last visited Dec. 1, 2020).                  mutating therefrom; or


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                                                                     Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Notices                                            79197

                                               ii. a respiratory protective device                  threats that may have been caused by                     Liability protections are afforded to
                                            approved by NIOSH under 42 CFR part                     COVID–19, SARS–CoV–2, or a virus                      manufacturers and distributors without
                                            84, or any successor regulations, that the              mutating therefrom, including the                     regard to whether the countermeasure is
                                            Secretary determines to be a priority for               decrease in the rate of childhood                     used by or administered to this
                                            use during a public health emergency                    immunizations, which will lead to an                  population; liability protections are
                                            declared under section 319 of the PHS                   increase in the rate of infectious                    afforded to program planners and
                                            Act to prevent, mitigate, or limit the                  diseases.                                             qualified persons when the
                                            harm from COVID–19, or the                              IX. Administration of Covered                         countermeasure is used by or
                                            transmission of SARS–CoV–2 or a virus                   Countermeasures                                       administered to this population, or the
                                            mutating therefrom.                                                                                           program planner or qualified person
                                               To qualify for this third distribution               42 U.S.C. 247d–6d(a)(2)(B)                            reasonably could have believed the
                                            channel, a Covered Person must                             Administration of the Covered                      recipient was in this population.
                                            manufacture, test, develop, distribute,                 Countermeasure means physical                         XI. Geographic Area
                                            administer, or use the Covered                          provision of the countermeasures to
                                            Countermeasure pursuant to the FDA                      recipients, or activities and decisions               42 U.S.C. 247d–6d(a)(4), 247d–
                                            licensure, approval, clearance, or                      directly relating to public and private               6d(b)(2)(D)
                                            authorization (or pursuant to an                        delivery, distribution and dispensing of                 Liability protections are afforded for
                                            Investigational New Drug Application or                 the countermeasures to recipients,                    the administration or use of a Covered
                                            Investigational Device Exemption), or                   management and operation of                           Countermeasure without geographic
                                            the NIOSH approval.                                     countermeasure programs, or                           limitation.
                                               As used in this Declaration, the terms               management and operation of locations                    Liability protections are afforded to
                                            ‘‘Authority Having Jurisdiction’’ and                   for the purpose of distributing and                   manufacturers and distributors without
                                            ‘‘Declaration of Emergency’’ have the                   dispensing countermeasures.                           regard to whether the Covered
                                            following meanings:                                        Where there are limited Covered                    Countermeasure is used by or
                                               (a) The Authority Having Jurisdiction                Countermeasures, not administering a                  administered in any designated
                                            means the public agency or its delegate                 Covered Countermeasure to one                         geographic area; liability protections are
                                            that has legal responsibility and                       individual in order to administer it to               afforded to program planners and
                                            authority for responding to an incident,                another individual can constitute                     qualified persons when the
                                            based on political or geographical (e.g.,               ‘‘relating to . . . the administration to             countermeasure is used by or
                                            city, county, tribal, state, or federal                 . . . an individual’’ under 42 U.S.C.                 administered in any designated
                                            boundary lines) or functional (e.g., law                247d–6d. For example, consider a                      geographic area, or the program planner
                                            enforcement, public health) range or                    situation where there is only one dose 24             or qualified person reasonably could
                                            sphere of authority.                                    of a COVID–19 vaccine, and a person in                have believed the recipient was in that
                                               (b) A Declaration of Emergency means                 a vulnerable population and a person in               geographic area.
                                            any declaration by any authorized local,                a less vulnerable population both                        COVID–19 is a global challenge that
                                            regional, state, or federal official of an              request it from a healthcare                          requires a whole-of-nation response.
                                            emergency specific to events that                       professional. In that situation, the                  There are substantial federal legal and
                                            indicate an immediate need to                           healthcare professional administers the               policy issues, and substantial federal
                                            administer and use the Covered                          one dose to the person who is more                    legal and policy interests within the
                                            Countermeasures, with the exception of                  vulnerable to COVID–19. In that                       meaning of Grable & Sons Metal
                                            a federal declaration in support of an                  circumstance, the failure to administer               Products, Inc. v. Darue Eng’g. & Mf’g.,
                                            Emergency Use Authorization under                       the COVID–19 vaccine to the person in                 545 U.S. 308 (2005), in having a unified,
                                            Section 564 of the FD&C Act unless                      a less-vulnerable population ‘‘relat[es]              whole-of-nation response to the COVID–
                                            such declaration specifies otherwise.                   to . . . the administration to’’ the                  19 pandemic among federal, state, local,
                                               I have also determined that, for                     person in a vulnerable population. The                and private-sector entities. The world is
                                            governmental program planners only,                     person in the vulnerable population was               facing an unprecedented pandemic. To
                                            liability protections are afforded only to              able to receive the vaccine only because              effectively respond, there must be a
                                            the extent such program planners obtain                 it was not administered to the person in              more consistent pathway for Covered
                                            Covered Countermeasures through                         the less-vulnerable population.                       Persons to manufacture, distribute,
                                            voluntary means, such as (a) donation;                  Prioritization or purposeful allocation of            administer or use Covered
                                            (b) commercial sale; (c) deployment of                  a Covered Countermeasure, particularly                Countermeasures across the nation and
                                            Covered Countermeasures from federal                    if done in accordance with a public                   the world. Thus, there are substantial
                                            stockpiles; or (d) deployment of                        health authority’s directive, can fall                federal legal and policy issues, and
                                            donated, purchased, or otherwise                        within the PREP Act and this                          substantial federal legal and policy
                                            voluntarily obtained Covered                            Declaration’s liability protections.                  interests within the meaning of Grable
                                            Countermeasures from state, local, or                                                                         & Sons Metal Products, Inc. v. Darue
                                            private stockpiles.                                     X. Population
                                                                                                                                                          Eng’g. & Mf’g., 545 U.S. 308 (2005), in
                                            VIII. Category of Disease, Health                       42 U.S.C. 247d–6d(a)(4), 247d–                        having a uniform interpretation of the
                                            Condition, or Threat                                    6d(b)(2)(C)                                           PREP Act. Under the PREP Act, the sole
                                                                                                      The populations of individuals to                   exception to the immunity from suit and
                                            42 U.S.C. 247d–6d(b)(2)(A)                                                                                    liability of covered persons under the
                                                                                                    whom the liability protections of this
                                               The category of disease, health                      Declaration extend include any                        PREP Act is an exclusive Federal cause




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                                            condition, or threat for which I                        individual who uses or is administered                of action against a covered person for
                                            recommend the administration or use of                  the Covered Countermeasures in                        death or serious physical injury
                                            the Covered Countermeasures is not                      accordance with this Declaration.                     proximately caused by willful
                                            only COVID–19 caused by SARS–CoV–                                                                             misconduct by such covered person. In
                                            2, or a virus mutating therefrom, but                     24 For simplicity, this example assumes a patient   all other cases, an injured party’s
                                            also other diseases, health conditions, or              only requires one dose of the vaccine.                exclusive remedy is an administrative


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                                            79198                    Federal Register / Vol. 85, No. 237 / Wednesday, December 9, 2020 / Notices

                                            remedy under section 319F–4 of the                      manufacturer, and for Covered Persons                 related to countermeasures against
                                            PHS Act. Through the PREP Act,                          to take such other actions as are                     marburgvirus and/or Marburg disease.
                                            Congress delegated to me the authority                  appropriate to limit the administration               DATES: The Declaration is effective as of
                                            to strike the appropriate Federal-state                 or use of the Covered Countermeasures.                November 25, 2020.
                                            balance with respect to particular                        Covered Countermeasures obtained                    FOR FURTHER INFORMATION CONTACT:
                                            Covered Countermeasures through PREP                    for the SNS during the effective period               Robert P. Kadlec, MD, MTM&H, MS,
                                            Act declarations.25                                     of this Declaration are covered through               Assistant Secretary for Preparedness
                                            XII. Effective Time Period                              the date of administration or use                     and Response, Office of the Secretary,
                                                                                                    pursuant to a distribution or release                 Department of Health and Human
                                            42 U.S.C. 247d–6d(b)(2)(B)                              from the SNS.                                         Services, 200 Independence Avenue
                                               Liability protections for any                        XIV. Countermeasures Injury                           SW, Washington, DC 20201; Telephone:
                                            respiratory protective device approved                  Compensation Program                                  202–205–2882.
                                            by NIOSH under 42 CFR part 84, or any                                                                         SUPPLEMENTARY INFORMATION: The
                                            successor regulations, through the                      42 U.S.C 247d–6e                                      Public Readiness and Emergency
                                            means of distribution identified in                       The PREP Act authorizes the                         Preparedness Act (PREP Act) authorizes
                                            Section VII(a) of this Declaration, begin               Countermeasures Injury Compensation                   the Secretary of Health and Human
                                            on March 27, 2020 and extend through                    Program (CICP) to provide benefits to                 Services (the Secretary) to issue a
                                            October 1, 2024.                                        certain individuals or estates of                     Declaration to provide liability
                                               Liability protections for all other                                                                        immunity to certain individuals and
                                                                                                    individuals who sustain a covered
                                            Covered Countermeasures identified in                                                                         entities (Covered Persons) against any
                                                                                                    serious physical injury as the direct
                                            Section VI of this Declaration, through                                                                       claim of loss caused by, arising out of,
                                                                                                    result of the administration or use of the
                                            means of distribution identified in                                                                           relating to, or resulting from the
                                            Section VII(a) of this Declaration, begin               Covered Countermeasures, and benefits
                                                                                                    to certain survivors of individuals who               manufacture, distribution,
                                            on February 4, 2020 and extend through                                                                        administration, or use of medical
                                            October 1, 2024.                                        die as a direct result of the
                                                                                                    administration or use of the Covered                  countermeasures (Covered
                                               Liability protections for all Covered                                                                      Countermeasures), except for claims
                                            Countermeasures administered and                        Countermeasures. The causal
                                                                                                    connection between the countermeasure                 involving ‘‘willful misconduct’’ as
                                            used in accordance with the public                                                                            defined in the PREP Act. This
                                            health and medical response of the                      and the serious physical injury must be
                                                                                                    supported by compelling, reliable, valid,             Declaration is subject to amendment as
                                            Authority Having Jurisdiction, as
                                                                                                    medical and scientific evidence in order              circumstances warrant.
                                            identified in Section VII(b) of this                                                                            The PREP Act was enacted on
                                            Declaration, begin with a Declaration of                for the individual to be considered for
                                                                                                    compensation. The CICP is                             December 30, 2005, as Public Law 109–
                                            Emergency as that term is defined in                                                                          148, Division C, Section 2. It amended
                                            Section VII (except that, with respect to               administered by the Health Resources
                                                                                                    and Services Administration, within the               the Public Health Service (PHS) Act,
                                            qualified persons who order or                                                                                adding Section 319F–3, which
                                            administer a routine childhood                          Department of Health and Human
                                                                                                    Services. Information about the CICP is               addresses liability immunity, and
                                            vaccination that ACIP recommends to                                                                           Section 319F–4, which creates a
                                            persons ages three through 18 according                 available at the toll-free number 1–855–
                                                                                                    266–2427 or http://www.hrsa.gov/cicp/.                compensation program. These sections
                                            to ACIP’s standard immunization                                                                               are codified at 42 U.S.C. 247d–6d and
                                            schedule, liability protections began on                XV. Amendments                                        42 U.S.C. 247d–6e, respectively.
                                            August 24, 2020), and last through (a)                                                                          The Pandemic and All-Hazards
                                            the final day the Declaration of                        42 U.S.C. 247d–6d(b)(4)
                                                                                                                                                          Preparedness Reauthorization Act
                                            Emergency is in effect, or (b) October 1,                 Amendments to this Declaration will                 (PAHPRA), Public Law 113–5, was
                                            2024, whichever occurs first.                           be published in the Federal Register, as              enacted on March 13, 2013. Among
                                               Liability protections for all Covered                warranted.                                            other things, PAHPRA added sections
                                            Countermeasures identified in Section                                                                         564A and 564B to the Federal Food,
                                            VII(c) of this Declaration begin on the                   Authority: 42 U.S.C. 247d–6d.
                                                                                                                                                          Drug, and Cosmetic (FD&C) Act to
                                            date of this amended Declaration and                      Dated: December 3, 2020.
                                                                                                                                                          provide new authorities for the
                                            last through (a) the final day the                      Alex M. Azar II,
                                                                                                                                                          emergency use of approved products in
                                            Declaration of Emergency is in effect, or               Secretary of Health and Human Services.               emergencies and products held for
                                            (b) October 1, 2024, whichever occurs                   [FR Doc. 2020–26977 Filed 12–8–20; 8:45 am]           emergency use. PAHPRA accordingly
                                            first.                                                  BILLING CODE 4150–37–P                                amended the definitions of ‘‘Covered
                                            XIII. Additional Time Period of                                                                               Countermeasures’’ and ‘‘qualified
                                            Coverage                                                                                                      pandemic and epidemic products’’ in
                                                                                                    DEPARTMENT OF HEALTH AND                              Section 319F–3 of the Public Health
                                            42 U.S.C. 247d–6d(b)(3)(B) and (C)                      HUMAN SERVICES                                        Service Act (PREP Act provisions), so
                                              I have determined that an additional                                                                        that products made available under
                                            12 months of liability protection is                    Office of the Secretary
                                                                                                                                                          these new FD&C Act authorities could
                                            reasonable to allow for the                                                                                   be covered under PREP Act
                                                                                                    Notice of Declaration Under the Public
                                            manufacturer(s) to arrange for                                                                                Declarations. PAHPRA also extended
                                                                                                    Readiness and Emergency
                                            disposition of the Covered                                                                                    the definition of qualified pandemic and
                                                                                                    Preparedness Act for
                                            Countermeasure, including return of the                                                                       epidemic products that may be covered
                                                                                                    Countermeasures Against




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                                            Covered Countermeasures to the                                                                                under a PREP Act Declaration to include
                                                                                                    Marburgvirus and/or Marburg Disease
                                                                                                                                                          products or technologies intended to
                                              25 42 U.S.C. 247d–6d(b)(7) provides that ‘‘[n]o
                                                                                                    SUMMARY: The Secretary is issuing this                enhance the use or effect of a drug,
                                            court of the United States, or of any State, shall
                                            have subject matter jurisdiction to review, whether
                                                                                                    Declaration pursuant to section 319F–3                biological product, or device used
                                            by mandamus or otherwise, any action by the             of the Public Health Service Act to                   against the pandemic or epidemic or
                                            Secretary under this subsection.’’                      provide limited immunity for activities               against adverse events from these


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