1 Reforming State Law to Facilitate the Use of Volunteer Health Personnel During Emergencies: The...

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Reforming State Law to Facilitate the Use of Volunteer Health Personnel During Emergencies:

The Uniform Emergency Volunteer Health Practitioner Act (UEVHPA)

Brief Overview

James G. Hodge, Jr., J.D., LL.M. Associate Professor, Johns Hopkins Bloomberg School of PH

Executive Director, Center for Law & the Public’s Health Principal Investigator, HRSA ESAR-VHP Legal and Regulatory Issues Project

Reporter, NCCUSL UEVHPA

The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities

CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights



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Major Resources

• HRSA’s ESAR-VHP Legal and Regulatory Issues Report and Checklist (May 2006)

• Center’s Advanced Tool Kit (February 2007)

• Center’s Hurricanes Katrina and RitaTool Kit (February 2006)

Available at:

www.publichealthlaw.net/Research/Affprojects.htm





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Major Topical Areas

1) Declaration of State of Emergency or Public Health Emergency

2) Regulation of Professionals - Licensing, Credentialing, and Privileging

3) Civil Liability, Immunity, and Indemnification

4) Workers’ Compensation

5) Criminal Liability





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Assessing the Legal Environment in Emergencies

• Laws pervade emergency responses at every level of government:

• They determine what constitutes a public health or other emergency

• They help create the infrastructure through which emergencies are detected, prevented, and

addressed

• They authorize the performance (or nonperformance) of various emergency responses by a host of actors

• They determine the extent of responsibility for potential or actual harms that arise during emergencies





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Emergency Declarations

Before 9/11:

Focus of existing state legal infrastructures on general emergency responses

“All hazards” or “disasters” approach

After 9/11:

Reforms of emergency response laws by many states to address “public health emergencies”

Based in part on the Center’s Model State Emergency Health Powers Act (MSEHPA)





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Once an emergency has

been declared, the legal

landscape changes.





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How the legal landscape changes depends on the type of emergency declared





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Multiple Levels of Emergency Declarations





LocalLocal

StateState

FederalFederal

Emergency

or

Disaster

Public

Health

Emergency

Emergency

or

Disaster

Public

Health

Emergency

“FEMA”

Emergency

“HHS”

Public

Health

Emergency

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Multiple Types of Emergencies - Federal

• Emergency or Disaster – via the federal Robert T. Stafford Disaster Relief and Emergency Assistance Act

• Public Health Emergency – via the Public Health Service Act (as amended by the PH Improvement Act of 2000) and the Pandemic and All-Hazards Preparedness Act [PAHPA] which:

• centralizes preparedness response efforts within DHHS;

• requires new evidence-based objectives for state and local public health partners; and

• focuses on improving medical surge capacities through the use of volunteer health personnel.





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States That Define “Emergency”

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT

PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)

““Emergency” or similar termEmergency” or similar termdefined in state statutesdefined in state statutes





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“Emergency” Defined - Florida

“Emergency" is defined as “any occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, which results or may result in substantial injury or harm to the population or substantial damage to or loss of property.”

F.S.A. § 252.34(3) (2005).





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States That Define “Disaster”

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT


““Disaster” or similar term Disaster” or similar term defined in state statutesdefined in state statutes





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“Disaster” Defined - West Virginia





“Disaster" is defined as "the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including fire, flood, earthquake, wind, snow, storm, chemical or oil spill or other water or soil contamination, epidemic, air contamination, blight, drought, infestation or other public calamity requiring emergency action."

W. Va. Code. § 15-5-2(h) (1990).

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States That Define “Public Health Emergency”

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT


““Public health emergency” Public health emergency” or similar term defined in or similar term defined in state statutesstate statutes





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“Public Health Emergency” Defined - MSEHPA

• “Public health emergency:”

An occurrence or imminent threat of an illness or health condition that (1) is believed to be caused by any of the following:

Bioterrorism

Appearance of a novel or previously controlled or eradicated infectious agent or biological toxin

Natural disaster

Chemical attack or accidental release

Nuclear attack or accident; and





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Model State Emergency Health Powers Act (MSEHPA)

(2) poses a high probability of any of the following harms occurring in a large number of the affected population:

Death

Serious or long-term disability

Widespread exposure to infectious or toxic agent posing significant risk of substantial future harm





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Public Health Emergency Declaration

Government is vested with specific powers to facilitate emergency responses

Individuals are bestowed special protections

State licensure requirements may be waived

Responders may be protected from civil liability





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States That Define “Public Health Emergency” and “Emergency” or “Disaster”

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT


[“Emergency” or “disaster”] [“Emergency” or “disaster”] and “public health emergency” and “public health emergency” defined in state statutesdefined in state statutes





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Dilemmas of Dual Declarations

• Triggering of distinct powers and responsibilities

• Assignments of powers to different governmental agencies (e.g., public health agency vs. emergency management agency) lead to overlapping priorities

• Widely divergent responses and decisions on key issues





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Multiple Levels of Emergency Declarations





Local emergency or disaster

Local public health emergency

State emergency or disaster

State public health emergency

Federal “FEMA” emergency

Federal “DHHS” public health emergency

VHP deployment, uses, authorities, liabilities, immunities, protections from harm vary (and those with

the answers) depend on the declared emergency

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Regulation of Volunteer Professionals

Essential question of licensure portability:

When can volunteer health professionals practice across state lines?





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Regulation of Professionals

• When can volunteer health professionals practice across state lines?

Emergency Declarations and other laws often provide for portability of licensure, certification, and credentialing for some volunteer responders.

Some volunteers may have increased portability under state-level agreements like EMAC

Other non-emergency reciprocity agreements may apply





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Civil Liability

• Major questions:

What is civil liability?

Who may face civil liability?

What types of actions are subject to civil liability?

What legal protections from civil liability are in place?





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APHA Survey on Volunteer Health Practitioner Legal Issues

Civil Lawsuits – As a potential volunteer, how important to you is your immunity from civil lawsuits whether to volunteer during emergencies?

0%

10%

20%

30%

40%

50%

Not Important SomewhatImportant

Important Essential

5.5%

25%

35.6% 33.8%





Data as of October 5, 2006

69.4%

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Civil Liability

• What is civil liability?

Civil liability is the potential responsibility that a person or institution may owe for their actions, or failures to act, that result in injuries or losses to others.





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Civil Liability

• Who may face civil liability?

Volunteers

Health care entities that provide volunteers

Health care entities that accept volunteers

Persons or entities responsible for registration systems





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Civil Liability

• Legal theories:

Negligence

Intentional torts

Privacy

Misrepresentation

Discrimination





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Civil Liability

Liability Risks to Volunteers, Hospitals, and Others





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Umbrella of Liability Coverage

Mutual Aid Agreements

Good Samaritan

Acts

Federal VPA

State VPA

EMACIndemnification

JCAHO Standards/Policies & Practices

MOUs

Insurance Coverage

State EHPA

Civil Liability Protections





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Civil Liability - Volunteers

• Emergency statutes:

Center’s Model State Emergency Health Powers Act (MSEHPA)

Out-of-state emergency health care providers “shall not be held liable for any civil damages as a result of medical care or treatment related to the response to the public health emergency”





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APHA Survey on Volunteer Health Practitioner Legal Issues

Protection from Harm – As a potential volunteer, how important to you is your protection from harms (e.g. physical or mental injuries) incurred while performing services consistent with the scope of your volunteer position though benefits akin to worker’s compensation?

0%

10%

20%

30%

40%

50%

Not Important SomewhatImportant

Important Essential

4.8%

21%

44.7%

29.4%





Data as of October 5, 2006

74.1%

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Protection of VHPs from Harms - Workers’ Compensation

• Key Questions:

Who is an employee for the purposes of workers’ compensation? – not typically VHPs

Who is the employer of volunteers? Their host? Their existing employer? Government? NGOs?

When is a volunteer acting within the scope of her employment? – a key to workers’ comp coverage

When is a volunteer “injured” in the course of emergency responses? Consider disease outbreaks





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Criminal Liability

• Volunteer criminal responsibility varies under federal or state laws

• Statutory provisions that protect individuals from civil liability do not typically protect persons from criminal liability

• Employer may face vicarious criminal liability for criminal acts of employees/volunteers, though this risk is minimal





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Conclusion

• For more information about the Center or its ESAR-VHP Legal and Regulatory Issues project, please contact me or visit our website at:

www.publichealthlaw.net/Research/Affprojects.htm

• James G. Hodge, Jr., P.I. - [email protected]

• Thank you





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