Although Congress has publicly fretted over the threat of infectious disease pandemics, there have been few legislative attempts in the last two decades to address such health emergencies, leaving lawmakers with a limited set of policy options as they try to contain the Ebola outbreak.
Measures targeting deadly diseases have been largely crafted through the prism of bioterrorism threats, as opposed to naturally occurring outbreaks, such as swine flu and severe acute respiratory syndrome, or SARS.
“After 9/11 and the anthrax scares, there was starting to be a lot of attention and money being pumped into public health emergency preparedness and response, but by 2008, there started to be a downturn,” said Seth Foldy, associate professor of family and community medicine at the Medical College of Wisconsin and former Milwaukee health commissioner. “It bumped up again after H1N1, but then the funding slide began to kick in. There hasn’t been much sustained and strategic attention on the issue.”
Some lawmakers emphasized the importance of combating infectious diseases as far back as 1995, warning that cuts to foreign aid programs would hamper efforts to control and prevent Ebola from spreading in the Democratic Republic of Congo (then known as Zaire).
Congress again became aware of deadly disease threats in 2002 after a SARS outbreak in China, followed by the H1N1 swine influenza pandemic in 2009 that began in Mexico and quickly traveled into the United States.
After both public health emergencies, extra funds were tucked into appropriations bills to stop the diseases from spreading, a pattern repeated this year, when lawmakers included an extra $88 million for Ebola in the current continuing resolution (PL 113-164).
But there were few additional measures to further counter infectious diseases, aside from routine funding for health agencies and programs.
“Money alone is never the whole answer; there also needs to be a complete vision,” Foldy said. “But the last few years we’ve been wandering around without either.”
Aside from bioterrorism and spending measures, only four bills in the House or Senate over the past 20 years have specifically mentioned Ebola, none of which was considered on the floor.
Republican Fred Upton of Michigan introduced one of the measures in 2001, which would have established safer immunization injection practices to prevent the spread of diseases such as Ebola, malaria and HIV/AIDS. The remaining three bills primarily focused on reducing the transmission of diseases through wildlife.
“Today's Ebola crisis has underscored the danger of reactionary policies,” Upton said in a statement to CQ Roll Call. “It is always best to prevent an outbreak from occurring than to be caught flatfooted."
Other potential remedies for controlling infectious diseases have been floated. A 2004 Government Accountability Office report suggested that state and federal electronic disease-monitoring initiatives were incomplete. The same year, a House Oversight and Government Reform subcommittee held a hearing — where Foldy was a witness — that emphasized the role of information-sharing technology in tracking outbreak patterns, protecting against bioterrorism threats and improving patient health in general.
Then-Sen. Joseph R. Biden Jr., D-Del., introduced a bill in 2002 touching on the disease-monitoring issue in the wake of the SARS outbreak, with an eye toward establishing a global surveillance network. It picked up three cosponsors and passed the Senate, but foundered in the House.
Biden’s legislation seemed to foreshadow some of the current complications with controlling Ebola — the Centers for Disease Control and Prevention has said there are likely a number of undetected cases in Africa, due in part to global reporting challenges.
Most of the existing laws that could apply to Ebola, however, primarily deal with infectious diseases posed by bioterrorism threats.
Spending on deadly pathogens and emergency preparedness skyrocketed after the Sept. 11, 2001 terrorist attacks and the 2001 anthrax attacks, thanks to a set of programs created under the Project BioShield Act (PL 108-276) and the Pandemic and All-Hazards Preparedness Act ( PL 109-417 ).
The BioShield legislation originally authorized more than $5 billion over ten years for procuring countermeasures against biological terrorist agents such as anthrax, Ebola and smallpox. An independent agency, the Biomedical Advanced Research and Development Agency, or BARDA, was also established by a separate measure to oversee the production of vaccines and provide guaranteed incentives for companies to develop them without knowing whether there will be a commercial need for the product.
Robert Kadlec, a biodefense consultant who worked closely on the preparedness act as a staffer for Sen. Richard M. Burr, R-N.C., said the goal was to bring big pharmaceutical businesses to the table.
“Before, the only value of an Ebola vaccine was to save the great apes,” he said. “The fact of the matter was that Ebola was not perceived as a threat, other than a terrorist threat.”
Even though the measures were drafted in the context of Ebola being used as a biological weapon, vaccines are already in the works as a result of the programs that can be used even for naturally occurring outbreaks, according to Phyllis Arthur, senior director of vaccines at the Biotechnology Industry Organization.
“A lot of the work (on Ebola vaccines) was already slowly going along, but was suddenly kick-started after the outbreak,” she said. “Had funds been more sustained and routine, many of those products might have been further along.”
Some pharmaceutical industry members have criticized the law for not providing liability protections for companies or offering greater incentives. Others have lamented the fact that despite authorization levels, the amount appropriated to the programs each year is still left to the discretion of lawmakers.
“Having the full funding that is authorized affects the ability of BARDA and the CDC to be flexible in an emergency, and whether or not the stockpile has all the products they could have,” Arthur said.
Many experts agree that the law has gaps, but there have been few proposals to take its place.
Kadlec points out that BARDA was meant to supplement the shortcomings in BioShield, which he says “didn’t bring big pharma to the table and didn't answer the mail.” But, he maintains, even BARDA has limitations due to waning priority and insufficient funding for the agency over the years.
“You can’t take your eye off the ball,” Kadlec said. “Preparedness is a process that takes years to develop, attain and maintain. You can’t just pull it off once [a public health emergency] happens.”
Part of the reason that Congress has not been a prolific source of Ebola-related legislation is that there are many other players involved, including the World Health Organization. Government agencies have their own authorities, while state and local health departments have the greatest power to handle infectious diseases outbreaks.
Moreover, the disjointed nature of the U.S. health care system can make it even more challenging to come up with universal solutions. “Local and state health departments are the central organs,” Foldy said. “If they aren’t working, the rest of the system won’t.”
Another view is that cash-strapped Congress tends to take a more reactive approach to infectious disease outbreaks, which have not caused truly widespread devastation in the United States since the 1918 influenza pandemic. The CDC estimates that there were just eight cases of SARS and no SARS-related deaths in the United States.
In response to the Ebola outbreak this year, Congress has already called for travel restrictions and greater funding for the National Institutes of Health and hospital preparedness program. It remains to be seen whether either proposal will gain traction, particularly if the outbreak quickly dissipates within U.S. borders.
“The reactive nature of this ‘epidemic today, forget tomorrow’ approach keeps knocking us off track,” Foldy said. “You need a multi-year approach for this kind of complicated problem.”