Biden can call in the ‘heavy hammer’ to ramp up PPE supplies

The president-elect has said he wants to use the full capacities of the Defense Production Act, which allows the president to control the distribution of materials.

AP Photo/Paul Sancya
Nov. 19, 2020, 8 p.m.

With COVID-19 numbers soaring and hospitals filling up, health care workers are pressuring President-elect Biden to take drastic actions to ensure they get the protective equipment they need.

Getting enough crucial personal protective equipment—like masks, gloves, and gowns—when the COVID-19 pandemic hit U.S. shores in the spring was an incredible challenge, forcing hospitals and governors to find creative solutions to acquire supplies.

While industry groups representing PPE manufacturers say they are in a better position to meet demand, nurses’ groups told National Journal that ensuring workers have enough equipment is still a challenge.

A recent National Nurses United survey of more than 15,000 nurses found that at least 80 percent reported that they were reusing equipment meant for just a single use. Around 20 percent said hospitals were limiting the use of N95 masks. The survey was taken between Oct. 16 and Nov. 9.

“We need to protect nurses,” said Gerard Brogan, a registered nurse and director of nursing practice at National Nurses United. “Not that we’re special human beings, but we cannot afford to lose any more nurses and doctors either through contracting COVID themselves or just being burned out, frankly.”

To improve the situation, they are placing some of their hope on Biden’s pledge to “fully use” a Cold War-era law that provides the president a range of authorities to help bolster supplies at home.

“This is pretty much a war and we should treat it as such,” said Brogan. National Nurses United had praised Biden’s plan to use the law to ramp up production of masks, face shields, and other equipment in a statement this month.

The statute is the Defense Production Act, which the Trump administration has used in a variety of ways to beef up supplies of PPE and other hospital equipment in the past few months. Analysis by George Mason University’s Center for Government Contracting found several examples where the law was used to procure more ventilators, testing materials, and N95 masks.

For the masks specifically, the Trump administration used authorities under the statute that allow the government to invest in industries through loans, grants, and purchases to increase the production of certain items, according to the analysis.

But Biden thinks the Trump administration has not done enough with the Defense Production Act to ensure that there is a sufficient supply of PPE and wants to use the authorities to their “fullest extent.” This could mean the White House stepping in to control the distribution of materials and services, a power that falls under Title I of the act.

Biden "would be much more willing to invoke the allocation authority of Title I to oversee the overall COVID response or something like that to replace the Coronavirus Task Force, that’s what it sounds like,” said John McGinn, executive director of George Mason University’s Center for Government Contracting and former principal deputy director in the Defense Department’s Office of Manufacturing and Industrial Base Policy from 2015 to 2018.

The Biden transition team did not respond to specific questions about his plans for using the statute, but the president-elect’s campaign website says he would use the DPA to direct U.S. companies to ramp up production of needed materials.

After speaking with governors on Thursday afternoon about what they need during the pandemic, Biden said he wants to use the DPA to “dictate companies build and do [the] following things: we need much more testing, we need much more masking, we need gloves.”

Biden also wrote a post in March on tools that the Trump administration should use under the Defense Production Act, including another Title I authority to require companies to prioritize the production of essential supplies above other contracts or orders. Biden did not mention using the authority to control the distribution of materials, services, and facilities.

McGinn described the allocation authority as a “heavy hammer” and said it allows the president to take charge over a specific sector. This authority had not been used since the end of the Cold War, according to a Congressional Research Service report from March.

Industry representatives for companies that help produce medical supplies, including N95 masks, told National Journal that they feel they are in a better position than last spring to respond to the pandemic.

Challenges with accessing equipment may be a failure of the distribution system rather than a lack of supplies, said David Rousse, president of the Association of the Nonwoven Fabrics Industry, which represents companies that produce materials for PPE, face masks, and disinfecting wipes.

“You always hear stories where there’s been a run at a hospital or [a nurse] has to wear the same mask for two or three days in a row, it could be just a temporary glitch,” said Rousse. “Our view is that those outages should be temporary and relatively rare because somewhere in the pipeline exists the material.”

Rousse said that while the Defense Production Act could be helpful, he is hopeful that other actions could be taken before the federal government decides to take charge of a manufacturing process.

“No private enterprise wants to have their assets commandeered by the federal government,” he said. “That just takes control away from the private enterprise and that’s just not something that these private investors want to see happen. Rather, these private investors and the companies are very interested in supporting the noble initiatives to get PPE into the right places.”

Ingrida Lusis, American Nurses Association vice president for policy and governmental affairs, said there could be an impression there is enough PPE available because many nurses are reusing equipment.

“Our question is, is the supply there because of this emergency authorization that you can use the equipment more than once, or is the supply really there?” she said. “Do they have that hearty supply that they should have to go back to normal use?”

Lusis said the group wants the Defense Production Act to be used to its “full capacity so that we do have the protective equipment we need so that we can go back to the single use, which is the best for our frontline providers.”

The American Association of Critical-Care Nurses conducted a survey between Oct. 27 and Nov. 11 of 550 nurses and found that around 28 percent said they were short of N95 respirators while 3 percent reported being out. Around 64 percent of respondents said they had to reuse an N95 mask, with some nurses reusing the masks for five to seven days and others using the mask for eight days or more.

American Association of Critical-Care Nurses President Elizabeth Bridges said the “contingency” use of personal protective equipment cannot become “the norm.” The Centers for Disease Control and Prevention outlined contingency-use plans for PPE, including allowing N95 masks to be used beyond the designated shelf-life and allowing for extended use

Although Bridges said she did not have a specific request to Biden on the use of the Defense Production Act, she said there needs to be a national-level plan from the new administration to ensure that hospitals have adequate access to PPE.

“We need from the federal government that coordinated effort to ensure that we’re getting PPE right now to hospitals that maybe don’t have that … How do you have an equitable distribution of PPE to hospitals, I think is No. 1,” she said.

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