Usa.hospital.preparedness.2013.apr

For A Copy of For A Copy of Presentation Presentation and the Textand the Text

►See “ARRTC,” a download on See “ARRTC,” a download on Slideshare Slideshare 7 <slideshare.net>7 <slideshare.net>

►See also my See also my FacebookFacebook Page Page

1John R. Wible, 2012

ARRTC – 2013ARRTC – 2013Judgment – Judgment –

Proofing and Proofing and ContractsContracts

John R. Wible, J.D.John R. Wible, J.D.

General Counsel (Retired)General Counsel (Retired)

Alabama Department of Public Alabama Department of Public HealthHealth

John R. Wible, 2013John R. Wible, 2013 22

Disaster Comes in Many Disaster Comes in Many FormsForms


It Could Be AnywhereIt Could Be Anywhere

John R. Wible, 2013 4

Complete Evacuation of NYU Langone Medical Center, 10/30/12

New York Patients New York Patients TransferredTransferred


Patient transferred from NYU Langon 10/30/12

But, Even Before Then . . .But, Even Before Then . . .


DCH DCH Could Could Have Been Hit-Have Been Hit-What If ?????What If ?????


Government Authority to Government Authority to Act in Emergencies: ModelAct in Emergencies: Model

► Legal Legal authorityauthority is at is at its peak at the its peak at the emergency’s peakemergency’s peak

► As crisis comes under As crisis comes under control, legal authority control, legal authority is subject to greater is subject to greater legal constraintslegal constraints

► And attention shifts toAnd attention shifts to responsibility for responsibility for costs and costs and damages/lossesdamages/losses


-The Eye of the Storm--The Eye of the Storm-What Really Happens in a What Really Happens in a

DisasterDisaster


Disaster/PlanningDisaster/Planning

►Disaster -Any emergency that disrupts Disaster -Any emergency that disrupts normal community function causing normal community function causing concern for the safety of its citizens.concern for the safety of its citizens.

►Planning - Prime function to minimize the Planning - Prime function to minimize the resulting loss of property, injuries, resulting loss of property, injuries, suffering and death that accompanies a suffering and death that accompanies a disaster.disaster.

►Goal - to minimize resulting injuries, Goal - to minimize resulting injuries, suffering, and provide continued quality suffering, and provide continued quality care to those patients in the hospitalcare to those patients in the hospital 10John R. Wible, 2013

So, what really happens?So, what really happens?

► How do people’s relationships change? ► Do people think and react differently?► Are the consequences the same as if you

had reacted “in the sunshine?”► The “Outback Steakhouse Question,” are

there really “no rules?”► How can you “rank” people in order or

precedence to receive vaccine, ventilators or treatment according to ethical principles?

► Can you invoke “altered standards of care?► What are the rights of staff to desert?


Effects on Victims Effects on Victims and and StaffStaff

Psychological, physiological and physiological Symptoms:

► Irritability or anger, blaming or denial, mood swings, fear of recurrence, hyperactivity, feeling stunned, helpless, numb, or overwhelmed;

► Loss of appetite and energy, headaches, chest pain, and fatigue;

► Isolation, withdrawal, diarrhea, stomach pain, nausea;

► Increase in alcohol or drug consumption; ► Nightmares and inability to sleep; ► Concentration and memory problems; ► Sadness, depression and grief; All leading to BAD CHOICES


What if Power is Lost?What if Power is Lost?

Also lost are:Also lost are:►Sewage / water systemsSewage / water systems►Lights/Cooling and heating elements Lights/Cooling and heating elements ►Elevators and automatic doorsElevators and automatic doors► Internal and external communicationsInternal and external communications►Ability to track ID and patientsAbility to track ID and patients


Other Contemplated Other Contemplated LossesLosses►Food, water and utensil supplyFood, water and utensil supply

►Shortages of meds, disposables and DMEShortages of meds, disposables and DME You should anticipate the most critical Personal Hygiene / Sanitary Supplies PPE needed Food, meds and water w/evacueesw/evacuees

►Staff and Security lossesStaff and Security losses►Handling waste: medical and otherHandling waste: medical and other►Transportation and fuelTransportation and fuel


Don’t Be Bait for LiabilityDon’t Be Bait for Liability

►Federal IssuesFederal Issues►Criminal IssuesCriminal Issues►Administrative IssuesAdministrative Issues►Civil IssuesCivil Issues

TortsTorts ContractsContracts


Federal Law Causes of Federal Law Causes of ActionAction

►1963 Civil Rights Act violations1963 Civil Rights Act violations ADA, ADEAADA, ADEA Section 504, Rehabilitation ActSection 504, Rehabilitation Act

►HIPAAHIPAA►EMTALAEMTALA►FMLA FMLA ►FLSA (wage and hour)FLSA (wage and hour)►OSHAOSHA►FDAFDA


The Health Portability and Accountability Act (HIPPA)

(Amended by HITEC)

The Health Portability and Accountability Act (HIPPA)

(Amended by HITEC)


The “Golden Rule of The “Golden Rule of Documentation”Documentation”

If it ain’t wrote down it didn’t If it ain’t wrote down it didn’t happen! happen!

The way it is wrote down is The way it is wrote down is the way it happened the way it happened

regardless of the way it regardless of the way it happened!happened! 18John R. Wible, 2013

Confidentiality- Confidentiality- Access to RecordsAccess to Records

►General rule – (Privacy Rule) All patient General rule – (Privacy Rule) All patient information is strictly confidential. You must information is strictly confidential. You must maintain patient information confidential maintain patient information confidential outside the necessary situationoutside the necessary situation

►However – exceptions in emergency However – exceptions in emergency situationssituations 45 CFR 164.512 – emergency personnel and LE45 CFR 164.512 – emergency personnel and LE


Imperatives for Protecting Imperatives for Protecting PHIPHI

► Improvements in health care and Improvements in health care and community health require responsible community health require responsible sharing of sharing of somesome PHI PHI

► In the absence of privacy protections, In the absence of privacy protections, patients and others may avoid some patients and others may avoid some clinical, public health and research clinical, public health and research interventions to their detrimentinterventions to their detriment

► Individual privacy protections must Individual privacy protections must balance with legitimate community uses of balance with legitimate community uses of PHI, i.e., health research and public healthPHI, i.e., health research and public health


Methods to Avoid Liability -Methods to Avoid Liability -DCHDCH

►Have only one or two voices to media Have only one or two voices to media and the public, IE., thousands of callsand the public, IE., thousands of calls

►Train employees to route pts. to triage Train employees to route pts. to triage regardless of ingressregardless of ingress

►Use AIMS system or your own system for Use AIMS system or your own system for pt. tracking (names only) external to pt. tracking (names only) external to your EMR tied to central clearing houseyour EMR tied to central clearing house

►Follow up pts later with your EMRFollow up pts later with your EMR►Document, document, documentDocument, document, document


Disaster Applicability Disaster Applicability DHHS Says:DHHS Says:

►Responding agencies will need to get PHI to respond to emergencies

►Therefore a covered entity can disclose PHI to emergency authorities in such an event.

►Attempt to have prepared systems that minimize non-emergency disclosures

►See 45 CFR 164.512(b) public health activities


EMTALAEMTALA►Section 1867, Social Security ActSection 1867, Social Security Act►Must triage and stabilize then treat or transferMust triage and stabilize then treat or transfer►What if you are in a disaster?What if you are in a disaster?

DHC found the Statewide Trauma System to be DHC found the Statewide Trauma System to be very helpfulvery helpful

Plan to set up emergency triage sub-stationsPlan to set up emergency triage sub-stations Have transfer agreements – where and howHave transfer agreements – where and how

►Ambulances – is there prohibitive (exclusive) ordinance?Ambulances – is there prohibitive (exclusive) ordinance?►ADPH bus kitsADPH bus kits

► If in a true disaster, unlikely HHS will pursueIf in a true disaster, unlikely HHS will pursue

John R. Wible, 201323

WHERE DOES EMTALA WHERE DOES EMTALA APPLY?APPLY?

Prov. #444

DED Prov. #444

Sample

Main Hosp.Prov#444

DED

Women’s Ctr.

Off campus fac. No DED.

EMTALA does not apply

Outpatients

250 yds

CAMPUS

“I have a med. cond.” EMTALA APPLIES

“I have EMC” EMTALA applies


DED = Dedicated Emerg. Dept.

Evacuation Plan – Have Evacuation Plan – Have OneOne

And Stick to ItAnd Stick to It►Does it violate EMTALA?Does it violate EMTALA?►Plan w/ other facilities to take pts.Plan w/ other facilities to take pts.►Plan w/city, county and schools to use Plan w/city, county and schools to use

vehicles and (importantly) driversvehicles and (importantly) drivers N.O. didn’t evacuate in part because N.O. didn’t evacuate in part because

though they had busses, they didn’t have though they had busses, they didn’t have drivers who had deserteddrivers who had deserted

►Tenet-Memorial Hospital (N.O) settled Tenet-Memorial Hospital (N.O) settled suit involving evacuation plansuit involving evacuation plan


OSHA in a Disaster – Plan!OSHA in a Disaster – Plan!►Have pre-emergency drills implementing plan,Have pre-emergency drills implementing plan,

practice sessions using the ICS Systempractice sessions using the ICS System►Establish lines of authority and Establish lines of authority and

communication between incident site and communication between incident site and hospital personnel hospital personnel

►Designate disaster team including ED MDs, Designate disaster team including ED MDs, nurses, aides and support personnel w/PPEnurses, aides and support personnel w/PPE

►Designate alternate sites Designate alternate sites ►Post-emergency critique of the hospital's Post-emergency critique of the hospital's

emergency response – OSHA Pub. 3152 (1997)emergency response – OSHA Pub. 3152 (1997)John R. Wible, 2013 26

Fair Labor Standards ActFair Labor Standards Act►Plan should include use of reserves and Plan should include use of reserves and

time off where possibletime off where possible►Time off may be given later orTime off may be given later or►Overtime pay required for non-exempt Overtime pay required for non-exempt

employeesemployees► If you have a Gov.’s Proclamation, a If you have a Gov.’s Proclamation, a

Stafford Act declaration and are Stafford Act declaration and are executing your approved disaster plan, executing your approved disaster plan, it is it is possiblepossible that you that you may may be be designated a state entity and eligible for designated a state entity and eligible for 80% reimbursement80% reimbursementJohn R. Wible, 2013 27

Pure Food, Drug & Cosmetic Pure Food, Drug & Cosmetic ActAct

►Be careful about transferring Be careful about transferring legend drugs to unlicensed legend drugs to unlicensed aid stations w/o pharmacy or pharmacistaid stations w/o pharmacy or pharmacist

►Plan a work around of this. Work with Plan a work around of this. Work with city to have pre-established aid stations city to have pre-established aid stations w/pharmacist coveragew/pharmacist coverage

►Pharmacists can be obtained and Pharmacists can be obtained and dispatched through ADPH volunteer dispatched through ADPH volunteer networknetwork


Licensure Issues Licensure Issues – Bed Capacity– Bed Capacity

►Code of Ala.1975Code of Ala.1975 Chapter 21 of Title 22 Chapter 21 of Title 22 requires you to be designated with requires you to be designated with maximum bed capacitymaximum bed capacity

►This may be exceeded in emergency by This may be exceeded in emergency by contacting ADPH Bureau of Health contacting ADPH Bureau of Health Provider Standards for a temporary Provider Standards for a temporary waiverwaiver

►Probably can be done through AIMSProbably can be done through AIMS►This will This will notnot be your biggest problem be your biggest problem


The Joint Commission The Joint Commission (TJC)(TJC)

On Nov. 24, 2008, TJC imposed requirements On Nov. 24, 2008, TJC imposed requirements related to emergency managementrelated to emergency management

►The hospital has Emergency Operations PlanThe hospital has Emergency Operations Plan►The hospital engages in planning activities The hospital engages in planning activities

prior to developing its written EOPprior to developing its written EOP►The hospital prepares for how it will: The hospital prepares for how it will:

communicate, manage resources, provide communicate, manage resources, provide security, staff, and grant privileges to other security, staff, and grant privileges to other practitioners during emergencies practitioners during emergencies


Criminal ComplaintsCriminal Complaints

TrespassTrespass Assaults and Assaults and

BatteriesBatteries Theft of property Theft of property ConversionConversion Offenses involving Offenses involving

sexual misconductsexual misconduct31John R. Wible, 2013

It can happen – just ask Dr. Pou in N.O.

Civil Liability, Lawsuits, Civil Liability, Lawsuits, Defenses and Defenses and ImmunitiesImmunities

TortsContractsDefensesImmunitiesInsuranceLoss Prevention


TortsTorts►An actionable wrong

under the law Negligent torts Intentional torts Strict liability -Probably

not a concern here

►Recoverable in a civil action against you

►Filed in Circuit Court►The plaintiff wants

money damages

Not This

This


Types of TortsTypes of Torts►Malpractice and professional liability►General tort liability – negligence for an act

or omission Economic loss Non-economic loss

►Gross neg., wanton misconduct, bad faith►Vicarious liability and Respondeat superior►Negligent recruitment/training/supervision►Premises Liability (slip and fall, glass in

beans)


NegligenceNegligenceThe failure to act or perform

in a particular situation as any other reasonable prudent dispatcher with similar training would act under the same or similar circumstances.

35John R. Wible, 2013 35

Negligent Torts ExaminedNegligent Torts Examined►Negligent torts arise from the failure to

use reasonable care under the circumstances, causing recoverable damages.

►The “reasonable man” test” is applied►Bad results aren’t enough►Professional liability – failure to use the

degree of skill and care expected of a person in the profession


Proving NegligenceProving Negligence►“Intent to cause harm” is not

required►Four things are required to be

proved Duty Breach of the duty Injury or damage Proximate cause


““Punnies” Awarded for:Punnies” Awarded for:►Gross negligence - reckless disregard of

the consequences to the safety or property of another

►Willful acts - intentional, conscious and directed toward achieving a purpose Wanton acts - grossly negligent to the

extent of being recklessly unconcerned with the safety of people or property

Reckless behavior–similar to gross negligence


Exceeding the Scope of Exceeding the Scope of PracticePractice

The range of professional activities that a licensed professional is permitted to perform under a state licensing statute, further defined by the professional’s experience and training

►Licensing statutes►Training and ability


Standard of CareStandard of Care

►Establishing – can be set by statute or by governmental rule or by the court

►Measures of determining the standard Behavior is compared with others with

similar training and experience Compared w/ locally accepted standards Compared to statutes or administrative rules Compared with professional standards

published nationally

►I have a plan to alter the std. in emergency 40

John R. Wible, 2013

Breach of the Standard of Breach of the Standard of CareCare

►The standard of care for a professional is the “reasonable person” negligence doctrine in a professional services context.

►Standard liability issues center around whether the person has maintained the “standard of care.” See Code of Ala.1975 §6-5-548 . See also Humana Medical Corporation v.

Traffanstedt, 597 So. 2d 667 (Ala. 1992)41

John R. Wible, 2013

A “Dam” Breach

Medical MalpracticeMedical Malpractice

►Malpractice: professional misconduct or demonstration of an unreasonable lack of skill with the result of injury, loss, or damage to the patient

►Med-Mal is subject to a special statute Code of Ala. 1975 §§ 6-5-480, et seq. Code of Ala. 1975 §§ 6-2-38 and 6-5-410

►Hospitals are covered as well

John R. Wible, 201342

Corporate or Group Corporate or Group LiabilityLiability

Corporate NegligenceVicarious liability

/Respondeat superiorNegligent

recruitment/training /supervision

Premises liability


Premises Premises Liability–“Shelterees”Liability–“Shelterees”

►Plan for “sheltrees” – uninjured persons from Plan for “sheltrees” – uninjured persons from neighborhood or brought by LEneighborhood or brought by LE

►Some unattended pediatrics, some geriatric Some unattended pediatrics, some geriatric w/attendant & inherent problemsw/attendant & inherent problems

►Plan for minimum of 8 hours until ARC can Plan for minimum of 8 hours until ARC can open shelters, then plan for transport thereopen shelters, then plan for transport there

►Plan for sheteree animals , bites & ETC.Plan for sheteree animals , bites & ETC.►Prevent thefts – get supp. lights and securityPrevent thefts – get supp. lights and security


Negligent Hiring, Training, Negligent Hiring, Training, Supervision or RetentionSupervision or Retention

►Direct liability of an employer for acts or omissions of employees based on the employer’s failure to use reasonable care in Selecting workers Training them Supervising their work, and Terminating their services when necessary

►“No good deed goes unpunished”


Respondeat SuperiorRespondeat Superior

The master is responsible for the acts or omissions of his/her servant committed “within the scope and line of duty”

Not on “frolic and detour” Hospital is responsible for the

acts of personnel in the line of dutyThough not “independent contractors”

Doctor is responsible for the nurse under his/her control


Failure to PlanFailure to Plan Three possibilities for negligence liability:

Absence of a planInadequate planFailure to follow plan

Reasonable care: probability of an event, gravity of potential injury, and burden in adequate precaution –See Lacoste v. Pendleton Methodist Hospital.

Supreme Court of Louisiana. 2006 Forseeability - U.S. v. Carroll Towing Company Punitive Damages – wanton and willful misconduct


48

Who are the Potential Plaintiffs?Who are the Potential Plaintiffs?

And who will represent them?And who will represent them?

John R. Wible, 2013

JUDGMENT PROOFING JUDGMENT PROOFING AND DEFENSESAND DEFENSES


Two Very Important Ques.Two Very Important Ques.

►Can you make the hard calls?►How much risk are you willing to plan

to take?


Making Hard Calls - Principles

►To tell the truth, the whole truth and nothing but the truth No Delta Principle The Principle of the Plumbline Free at Last!

►“We’ll Sing in the Sunshine”►Casper the Friendly Ghost►It’s not about me►The “Nike Principle.”


Planning -“Bryant’s Rule” Planning -“Bryant’s Rule” Patton’s CorollaryPatton’s Corollary

►Have a Plan►Work your Plan►Plan for the Unexpected►“Plans must be simple and

flexible. . .made by the people who are going to execute them.”

Coach Bryant

Gen. Patton52John R. Wible, 2013

Plan “Beyond Your Plan “Beyond Your Wildest Dreams”Wildest Dreams”

►Plan must be beyond your “wildest dreams.” -Janet Teer, General Counsel DCH System

►Expand your concept of “disaster” Not 10-100 pts in ED but 800-1500 anywhere

►Get a team on the planning process w/deadlines

►Plan in accord with TJC►Reviewed by local EMA


Triage PlanningTriage Planning

►Get a Plan. See “Bryant’s Rule”►Get a Triage Review Committee

Plan Oversee Evaluate post-event

►Engage the public in the discussion►An experienced triage officer


Modern Disaster TriageModern Disaster Triage

►In disasters there is a switch from standard medical ethics with the primary focus on Individual autonomy to an ethics of public health with a primary focus on the health of the community

►The overarching goal is to minimize morbidity and mortality during the pandemic (according to CDC)

►Will it be most good or greatest need?55John R. Wible, 2013

Specific Template for Specific Template for Disaster Planning-Vent. Disaster Planning-Vent.

Triage ESF 8Triage ESF 8►ADPH develops a template for disaster

planning and resource allocation, the Ventilator Triage

►We recommend you adopt it as your plan

►It may give state agency immunity. See http://www.adph.org/CEP/assets/VENTTRIAGE.pdf


Statute of LimitationsStatute of Limitations►Set time period for injured party to file

lawsuit►Torts -Generally 2 years

Includes wrongful death, PI, and A & B Trespass – 6 years

►Contracts – Generally 6 years Could include personal injury under

contract See more later


S/L – Med MalS/L – Med Mal►2 years from reasonable discovery►No more than 4 years from occurrence►Minors – 4 years after discovery or 8th

birthday►Award

Actual out of pocket expenses “Non-economic loss” – capped at $400,000 Punitive damage cap of $250.000

unconstitutional.

►Requires expert of the same discipline 58John R. Wible, 2013

Damage Caps for HCAsDamage Caps for HCAs

►Code of Ala.1975 § 22-21-318(2) caps damages against a “health care authority” at $100,000

►Does not apply to a for-profit hospital►Does not apply to a purely county or

municipal owned hospital


Malpractice Malpractice InsuranceInsurance

►Covers any [costs & damages the physician/ employer/ employee must pay if (s)he sued for malpractice and loses [to policy limits]

►All licensed and certified medical professionals should carry malpractice insurance or have hospital provided

►Can be an expensive type of insurance for some disciplines

►Hospital carries general liability and D & OJohn R. Wible, 2013 60

Types of Med-Mal Types of Med-Mal InsuranceInsurance

►Claims-made insurance - covers insured party for claims made only during the time period policy was in effect

►Occurrence insurance - covers the insured party for all injuries and incidents that occurred while policy was in effect regardless of when claim is made

►Limits – Usually $1-3 Million including defense costs


Hospital InsuranceHospital Insurance► In addition to med-malIn addition to med-mal►Should cover premises liability – Agree w/ co. & Should cover premises liability – Agree w/ co. &

know what is (in)(ex)cluded. Ask questionsknow what is (in)(ex)cluded. Ask questions►““Soft market,” you may be able to negotiate Soft market,” you may be able to negotiate

add’l coverages w/ Pro Assurance, Coastal or add’l coverages w/ Pro Assurance, Coastal or McNearyMcNeary

►Consider coverage for HHS/CMS civil penaltiesConsider coverage for HHS/CMS civil penalties►Have high $ “umbrella” gen’l liability coverageHave high $ “umbrella” gen’l liability coverage►May have to be re-insuredMay have to be re-insured


Goals -Altered Goals -Altered Standards of CareStandards of Care

►Maximize the number of lives saved. ►Changes necessary to allocate resources ►Basis for allocation - fair and clinically

sound ►Process for decisions - transparent and

fair ►Protocols flexible and “scalable”►Staff concerns addressed pre-event

Goal!


Focus Change - Altered Focus Change - Altered StandardsStandards

►Critical : Focus Changes from doing to best for each patient to maximizing the most lives saved

►The system becomes the pt.►Affect current patients already in hospital ►The scope of practice changes►Equipment, meds and supplies rationed►Record-keeping changes


Emergency ManagementEmergency ManagementUnder Code of Ala.1975, § 31-9-2: Governor proclaims an “emergency” defined

as: Enemy attack, sabotage or “other hostile action;”Fire, flood and “other natural causes.”

Definition is broad enough to cover public health incidents or naturally occurring events like hurricanes and tornadoes.

Amendments add “Public Health Emergency”


Governor Proclaimed Governor Proclaimed EmergencyEmergency

►Activation of State EOP►Tab A (Pandemic Influenza) to Incident

Annex A (Biological Incident Annex) A►ADPH is responsible for ESF #8 Public

Health and Medical Services


Governor’s PowersGovernor’s Powers

In addition to those earlier listed, §31-9-6 also provides authority to:

Make orders, rules and regulations; To utilize all state employees; To utilize any state or local officers or

agencies, granting state officer immunity to such, including volunteers.


Personal Liability Personal Liability ProtectionsProtections

Code of Ala, 1975 Code of Ala, 1975 §§31-9-16 provides 31-9-16 provides that:that:

►Except for willful misconduct, gross negligence or bad faith, any “emergency management worker” (EMW)is granted state officer immunity.

►Requirements for licenses to practice do NOT apply

►“Emergency worker” is anyone helping out whether paid or not

►The business or corp. is also an EMW 68John R. Wible, 2013

Property ProtectionsProperty Protections

§ 31-9-17 provides similar liability protections apply to those permitting the state to use their real property


VolunteersVolunteers

►Privileging Professional Staff►Consider using ADPH volunteer registry to

have volunteers pre-vetted and qualified►Also, such volunteers may be “state

agents” and thus subject to immunity. Further state agents do not transfer liability to the agency

►The “guy who shows up with a chainsaw” should be routed to the Red Cross.


The Volunteer Service ActThe Volunteer Service Act

§ 6-5-336. Volunteers Defined.

A person performing services for:• a nonprofit organization• a nonprofit corporation• a hospital• a governmental entity• without compensation“Minuteman”


The Volunteer Service ActThe Volunteer Service ActThe volunteer is immune from civil

liability ►in any action on the basis of any act or

omission►resulting in damage or injury if:

acting in good faith and within the scope of duties;

for a covered organization; and damage or injury was not caused by:

willful misconduct; or wanton misconduct by the volunteer

►Does NOT immunize the organization, however 72John R. Wible, 2013

CONTRACTSCONTRACTS


What is a ContractWhat is a Contract

Simply, an exchange of mutual promises.

►Written or oral►To do legal acts


Types of InstrumentsTypes of Instruments

►Contracts►Grants►Benefit ►Agreements►Amendments►Purchase Orders


Elements of a contractElements of a contract

►Offer, ►Acceptance, ►Consideration ►Detrimental Reliance►“Boiler plate”►“In writing”


(Sorry, I thought it said, “Elephants of a contract”|

Contract Suggestion - Contract Suggestion - DCHDCH

► Just in time contracts – work with contractor, Just in time contracts – work with contractor, IE., Cardinal, to establish pre-packaged kits, IE., Cardinal, to establish pre-packaged kits, like “push-pak,” for main and alternate siteslike “push-pak,” for main and alternate sites

►Make sure supplier contracts and contractors Make sure supplier contracts and contractors have connections to get your supplies, like have connections to get your supplies, like generators, in a hurry and can handle volumegenerators, in a hurry and can handle volume

►Make sure it’s in writing or at least followed Make sure it’s in writing or at least followed up with a letter stating your understanding of up with a letter stating your understanding of the verbal agreement. (See slide 17.)the verbal agreement. (See slide 17.)


AmendmentsAmendments

►Same formalities as the instrument which it amends

►Same process as the instrument which it amends


MUTUAL AID MUTUAL AID AGREEMENTSAGREEMENTS

►What is Mutual Aid?►Types of Mutual Agreements►State Emergency Mutual Aid Compacts

(EMAC)►EMAC in the Broader Sense►Cost Reimbursement Issues►Characteristics of Private Agreements


Mutual Aid: Key Mutual Aid: Key CharacteristicsCharacteristics► Generally by written agreement

► Agreements cover: Activation Procedures Liability, employment and compensation Federal reimbursement where

appropriate► “Voluntary”’ response

Do not “guarantee” assistance provided ► Indicates mere “desire” to respond

when requested, if able ► Specifies terms/conditions/procedures80John R. Wible, 2013

Mutual Aid: Key Mutual Aid: Key CharacteristicsCharacteristics

► Compensated vs. donated Most current mutual aid agreements

do not provide for compensation or direct reimbursement for small-scale incidents

In most mutual aid agreements are applicable to major responses, requesting jurisdiction reimburses the costs of the responding jurisdiction


IntraIntrastate Mutual Aidstate Mutual Aid

The National Emergency Management The National Emergency Management Association has developed a Model Association has developed a Model Intrastate Mutual Aid Agreement to assist Intrastate Mutual Aid Agreement to assist states in reviewing their existing legislation.states in reviewing their existing legislation. http://emacweb.org/docs/NEMAhttp://emacweb.org/docs/NEMA

%20Proposed%20Intrastate%20Model-%20Proposed%20Intrastate%20Model-Final.pdfFinal.pdf


The MOU- Alabama The MOU- Alabama ProspectiveProspective

► Alabama Hospital Mutual Aid MOU (59 sigs)- See http://www.adph.org/CEP/assets/Mutual_Aid_Compact_including_Exhibits_final.doc

► MOUs define rights and responsibilities only► Parties: ADPH, hospitals, other providers,

responder communities, other regional parties► Disaster – proclaimed, declared or not► Limitations – players and resources► The need: identifying & providing resources,

personnel and & care and moving patients 83John R. Wible, 2013

The MOU - PurposeThe MOU - Purpose

► Purpose - to identify interested parties and their resources to support the coordination of local, state, and multi-state resources to respond to an emergency or disaster

► MOU is supplementary to participant’s EOP, procedures and protocols

► MOU supplements States’ EOPs, statutes and regulations


MOU – Not ObligatoryMOU – Not Obligatory

► No party is legally obligated to accept patients or send staff, supplies or resources when to do so would compromise its local service mission

► However, participants agree to try to assist and to advise of availability of resources through Incident Management Systems

► The purpose is to coordinate sending and receiving of patients, staff, equipment, staff and resources through the EOCs


MOU – Normal EMA ChainMOU – Normal EMA Chain

► Participants follow usual system of going through the local EMA including EMAC

► EMA should be tasked to escalate requests if necessary and as high necessary

► Each participant identifies a knowledgeable Point of Contact with authority to commit

► Participants will coordinate non-employee medical staff who agree to volunteer


MOU Reimbursement, MOU Reimbursement, Non-Exclusivity, Non-Exclusivity,

WithdrawalWithdrawal►No reimbursement is guaranteed but

network will facilitate reimbursement if any from federal sources if not otherwise able to bill Medicare, Medicaid or third party payor

►Participants are given opportunity to train►The MOU is not exclusive►Any participant may withdraw on 30 days

notice otherwise parties in “for the duration”


MOU - LiabilityMOU - Liability

► Participants assume no liability merely by becoming a signatory to the MOU

► However, participants may be liable for acts and omissions of their staff in performance under the MOU or governmental orders

► Also, in following their pre-approved plan, in case of Declaration by Governor, there may be certain immunities for staff


Transportation/EMS Transportation/EMS ContractsContracts

► Out of state ambulances are forbidden to make point to point runs within the state.

► Otherwise, state EMS rules allow full use of ambulances

from out of state into the state► Rules could be waived► Would there be enough ambulances in a

disaster if all hospitals contract w/ same EMS ambulance Co?

► What other vehicles could be used? Common carriers School & municipal buses


Transfer Agreement Transfer Agreement IssuesIssues

►Got appropriate transfer agreements?►Could they go out of state perhaps?►To what types of facilities?►Do you have agreements with carriers?►Are there backups for everything? ►Could your EMAC Agreements incorporate

cooperation on “transfer agreement” language and use of resources?

►Security & supplies of personnel and patients?

►Records be transferred electronically (EMR)??

•


Private Agreements Private Agreements – Should Address– Should Address

► Voluntary nature, not a legally binding contract; rather it outlines a general policy of cooperation and coordination

► Communications including: liaison officers, EOCs, and joint public information centers (JPIC)

► Forced evacuation – distributes patients equally

► Cooperation with NDMS activation

► Mutual compatibility of and adherence to JCAHC and community disaster plans

► Applicability to all disasters regardless of size or proclamation

Reporting of bed capacity.(In Alabama use AIMS )Auxiliary locations Contribution and sharing of staff and who is retains responsibility for staff issuesStaff credentials & privilegesVolunteers’ issuesPayment & reimbursementInterchangeability of parts and suppliesHold harmless clausesSignatures and capacity


Contractual LiabilityContractual Liability

►Failure to achieve a promised result

►Failure to use a standard of care to which you have committed

►Failure to render promised services

►Liability assumed in a contract with a response partner (indemnification and hold harmless clauses in contracts)


Avoiding/Reducing Avoiding/Reducing LiabilityLiability

►Risk management is approached on Risk management is approached on two levelstwo levels Agency level andAgency level and Individual levelIndividual level

►Avoiding liability means not being Avoiding liability means not being held liable in court (it does not held liable in court (it does not mean “can’t be sued”)mean “can’t be sued”)


Internal Practices to ReduceInternal Practices to ReduceLiability RiskLiability Risk

►Credentialing and assignment to Credentialing and assignment to appropriate dutiesappropriate duties

►Criminal background checksCriminal background checks►Verifying necessary licenses Verifying necessary licenses

(professional, driving, watercraft)(professional, driving, watercraft)►Clear activation and deactivation Clear activation and deactivation

proceduresprocedures►Employee orientation, training and Employee orientation, training and

exercisesexercises►Employee identification badgesEmployee identification badges


Internal Practices to Internal Practices to ReduceReduce

Liability Risk (2)Liability Risk (2)►Written partnership agreements Written partnership agreements

stating roles & responsibilitiesstating roles & responsibilities►Written engagement/utilization records Written engagement/utilization records ►Procedures for keeping patient Procedures for keeping patient

treatment notestreatment notes►Rules of conduct and grounds for Rules of conduct and grounds for

dismissaldismissal►Communications proceduresCommunications procedures►Post-incident debriefingPost-incident debriefing


Practical Advice – Liability, Practical Advice – Liability, Out of State ProvidersOut of State Providers

►Disaster Privileges Photo ID, copy of current license, proof of

liability insurance, DMAT or MRC ID, (or personal knowledge by staff member)

Assign provider to area qualified to work Abbreviated orientation program for

emergency personnel ►Brief on state-specific liability issues:

Lic., Good Samaritan, and Med-Mal Laws►Consider using ADPH volunteer system to

vet96John R. Wible, 2013

See AlsoSee Also

►Hospitals and Community, Emergency Hospitals and Community, Emergency Response - What You Need to Know,Response - What You Need to Know,Emergency Response Safety Series, Emergency Response Safety Series, U.S. Department of Labor – OSHA U.S. Department of Labor – OSHA #3152 (1997)#3152 (1997)

►TJC Standards on Hospital Emergency TJC Standards on Hospital Emergency Planning: CAMH/HospitalsPlanning: CAMH/Hospitals


More Resources - TJCMore Resources - TJC

Healthcare at the CrossroadsHealthcare at the Crossroads TJC TJC http://www.google.com/url?http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cdsa=t&rct=j&q=&esrc=s&source=web&cd=2&sqi=2&ved=0CCsQFjAB&url=http=2&sqi=2&ved=0CCsQFjAB&url=http%3A%2F%2Fwww.jointcommission.org%3A%2F%2Fwww.jointcommission.org%2Fassets%2Fassets%2F1%2F18%2Femergency_preparednes%2F1%2F18%2Femergency_preparedness.pdf&ei=Fig9T7CXMIOltwfjur20BQ&usg=s.pdf&ei=Fig9T7CXMIOltwfjur20BQ&usg=AFQjCNH4MW08aTuQbRTDAwjj9i4oK6pwtAFQjCNH4MW08aTuQbRTDAwjj9i4oK6pwtg&sig2=-KywQYc3ldurvHxWQ-WZ3Qg&sig2=-KywQYc3ldurvHxWQ-WZ3Q


Example Hospital TJC PlanExample Hospital TJC Plan

An example plan is found at: An example plan is found at: http://www.uhb.org/pnp/dsplan.htmhttp://www.uhb.org/pnp/dsplan.htm. . This is from the State University of This is from the State University of New York Hospital System.New York Hospital System.


Finished – At Last!Finished – At Last!


Usa.hospital.preparedness.2013.apr

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