5. Emergency and Disaster Areas

The definition of a “short-term hardship event” includes the circumstance of an individual residing in a county or equivalent unit of local government in which there exists an emergency or disaster that has been declared by the President under the NEA or the Stafford Act. We implement these parts of the short-term hardship exception at § 435.555(d)(2).

The National Emergencies Act (NEA) (Pub. L. 94-412), codified at 50 U.S.C. 1621 et seq., authorizes the President to proclaim a national emergency. Such a Presidential Declaration must be immediately transmitted to Congress and published in the Federal Register . Various provisions of Federal law authorize special presidential powers when a national emergency has been proclaimed by the President. Unlike declared disasters, national emergencies are generally not declared for discrete areas of the country and are at times declared for situations that, while affecting the United States, are external to its borders. For example, recent emergency declarations have been declared for the “southern border” and “northern border,” in which neither specific States nor discrete areas of the States are identified, [ 91 ] while, a separate 2022 emergency is still in effect regarding United States nationals held hostage abroad. [ 92 ] Additionally, such emergencies typically do not contain a specific calendar end date. [ 93 ] Emergencies or disaster declared by the President pursuant to the NEA, however, are included in section 1902(xx)(3)(B)(ii)(II)(aa) of the Act.

Using the example of the emergencies declared under the NEA for the “southern border” and “northern border,” we have considered that one possible interpretation of section 1902(xx)(3)(B)(ii)(II)(aa) of the Act would be that all States that border Canada and Mexico are, in their entireties, subject to a national emergency (given that the declarations pertaining to them did not specify discrete localities in those States), and that any such State that adopts the short-term hardship exception will have its entire applicable individual population excepted from community engagement unless and until such disaster is declared over. ( printed page 33385)

We are concerned, however, that this interpretation would in effect nullify the community engagement requirement for an indefinite period of time in such States, and would be inconsistent with the concept of a short-term hardship. Section 1902(xx)(3)(B)(ii)(II) of the Act lists three short-term hardship circumstances that, generally, relate to emergencies, disasters, and comparatively high unemployment. Because applicable individuals in States that elect the short-term hardship option are deemed to be in compliance with community engagement when residing in one of the areas described in section 1902(xx)(3)(B)(ii)(II) of the Act, we believe it is reasonable to interpret section 1902(xx)(3)(B)(ii)(II) of the Act as describing circumstances that affect an individual's ability to demonstrate community engagement.

This interpretation is also supported by the example of other emergencies declared pursuant to the NEA. For example, in “Declaring a National Energy Emergency,” Executive Order 14156 , Section 1, January 20, 2025, 90 FR 8433 (January 29, 2025), it is declared that “[t]he energy and critical minerals (“energy”) identification, leasing, development, production, transportation, refining, and generation capacity of the United States are all far too inadequate to meet our Nation's needs,” and that the problems giving rise to this issue are “most pronounced in our Nation's Northeast and West Coast.” For purposes of the short-term hardship exception, it is unclear whether this means that these areas may be properly classified as areas in which “there exists an emergency,” as required by section 1902(xx)(3)(B)(ii)(II)(aa) of the Act, or if this national emergency is based on a sum total of energy-related problems throughout the country in which the Northeast and West Coast weigh heaviest but which are not themselves experiencing an emergency.

For these reasons, we therefore believe that it is appropriate to further define the scope of a short-term hardship exception in NEA-related circumstances. Consistent with our authority to specify standards for the procedures established by States for short-term hardship under section 1902(xx)(3)(B)(i) of the Act, we specify at § 435.555(d)(2)(i) that a short-term hardship based on an NEA-declared emergency exists when the emergency affects the ability of applicable individuals to demonstrate community engagement in a particular county (or equivalent unit of local government), multiple counties, or statewide. Information that will be relevant to determining whether this is the case would be the barriers to demonstrating community engagement that the NEA-declared emergency presents, how businesses are impacted by the NEA-declared emergency, and other information tending to show an adverse impact on the ability of applicable individuals to demonstrate community engagement. To ensure compliance with this definition, we are also requiring at § 435.555(d)(2)(iii) that a State notify CMS timely of its plan to effectuate a short-term hardship exception based on an emergency declared pursuant to the National Emergencies Act, and are providing at § 435.555(d)(2)(iv) that CMS will review States' use and implementation of these exceptions.

Section 1902(xx)(3)(B)(ii)(II)(aa) also includes a reference to emergencies and disasters declared by the President pursuant to the Stafford Act. The Stafford Act (Pub. L. 100-707), codified at 42 U.S.C. 5122 , is intended to “provide an orderly and continuing means of assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the suffering and damage which result from . . . disasters.” The assistance is triggered by a presidential declaration and applies in cases of hurricanes, tornados, earthquakes, floods, fires, and other circumstances.

Presidential declarations made under the Stafford Act are published in the Federal Register . Ordinarily, the declaration identifies the State in which the emergency or disaster has occurred, the particular areas adversely affected by the event, and the “incident period” during which the disaster-causing event occurred. Typically, the duration of the incident period has expired at the time of the declaration, sometimes by several months (for example, “Presidential Declaration of a Major Disaster for Public Assistance Only for the State of Alaska,” 89 FR 91866 , November 20, 2024 (relating to landslides), identifying the incident date as August 25, 2024, and the presidential declaration November 13, 2024). The declaration itself then initiates the authority for assistance intended to alleviate damages and losses sustained as a result of the disaster or emergency.

The declarations, however, do not expire, nor do the statutory or regulatory authorities for the assistance dictate an established duration. “For example, Federal Emergency Management Agency (FEMA) may designate a hurricane's incident period as the sequence of 5 days during which winds and flooding caused injuries and damages. FEMA may then provide assistance (often over the course of months or years) to cover the costs of losses, damages, and injuries sustained during those 5 days.” [ 94 ] This means that at the time of a Stafford Act declaration, the incident giving rise to the declaration may be over, and the assistance thus authorized by the declaration will be indefinite. Because section 1902(xx)(3)(B)(ii)(II)(aa) of the Act requires that applicable individuals be deemed to have met community engagement in a month in which “there exists an emergency or disaster declared by the President under . . . [the Stafford Act],” we have considered when such an emergency or disaster “exists” for purposes of the Stafford Act-related exception and address this topic at § 435.555(d)(2)(iv).

We have determined that at a minimum, applicable individuals residing in the designated area identified in a Stafford Act declaration must be deemed to have demonstrated community engagement for the month (or months) during which the identified incident period occurred. For example, if the President issues a Stafford Act declaration on May 1st and identifies March 25th through March 30th as the incident period, applicable individuals residing in the area in which the disaster or emergency occurred must be deemed to have met community engagement for at least the month of March (in States that have elected the option for a short-term hardship exception).

For purposes of the months following the end of the month in which the incident period occurred (in the prior example, the months of April and beyond), we note that section 1902(xx)(3)(B)(ii)(II)(aa) of the Act does not limit the duration of the exception for a Stafford Act disaster to its incident period. Thus, we would consider it reasonable for a State to extend the exception, given that the effects of a disaster invariably extend in time beyond the discrete time period in which a disaster actually occurred.

We therefore grant States the option to seek CMS approval for an exception period beyond the incident period, based on submission of information showing that barriers to demonstrating the community engagement requirement in § 435.552 in the relevant area persist. In these circumstances, we anticipate that States will regularly communicate with CMS. The information we would expect of States that would support the continued applicability of the exception due to ongoing barriers to demonstrating ( printed page 33386) the community engagement requirement in § 435.552 in the relevant area might, for example, relate to the extent to which businesses have not reopened, transportation has been hampered, or temporary housing or relocation of individuals in the community has become necessary. Other information could also be relevant to support a State's request. We implement the short-term hardship event for emergencies and disasters declared by the President pursuant to the Stafford Act definition at § 435.555(d)(2)(iv).