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LIABILITY CONSIDERATIONS FOR VOLUNTEERS Randi Wind Milsap General Counsel, WI Dept of Military Affairs

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Presentation on theme: "LIABILITY CONSIDERATIONS FOR VOLUNTEERS Randi Wind Milsap General Counsel, WI Dept of Military Affairs"— Presentation transcript:

1 LIABILITY CONSIDERATIONS FOR VOLUNTEERS Randi Wind Milsap General Counsel, WI Dept of Military Affairs

2 RISKY BUSINESS?

3 TYPES OF VOLUNTEERS STATE AGENCY VOLUNTEER STATE AGENCY VOLUNTEER LOCAL UNIT OF GOVERNMENT VOLUNTEER LOCAL UNIT OF GOVERNMENT VOLUNTEER FEDERAL VOLUNTEER FEDERAL VOLUNTEER PROVIDER OF EQUIPMENT OR SERVICES VOLUNTEER PROVIDER OF EQUIPMENT OR SERVICES VOLUNTEER “GOOD SAMARITAN” “GOOD SAMARITAN”

4 STATE GOVERNMENT VOLUNTEER LABOR MAY NOT BE COMPENSATED LABOR MAY NOT BE COMPENSATED ALLOWS FOR REIMBURSEMENT OF: ALLOWS FOR REIMBURSEMENT OF: –TRAVEL, LODGING & MEALS MUST REGISTER OR PRE-REGISTER IN WRITING MUST REGISTER OR PRE-REGISTER IN WRITING GOOD FAITH ACTS OR OMISSIONS COVERED GOOD FAITH ACTS OR OMISSIONS COVERED

5 STATE GOVERNMENT VOLUNTEER (con’t.) WORKERS COMP. COVERED AS STATE EMPLOYEE COVERED AS STATE EMPLOYEE INCLUDES TRAINING ACTIVITIES INCLUDES TRAINING ACTIVITIES NO CAP IN AMOUNT PAID NO CAP IN AMOUNT PAID LIABILITY COVERED AS STATE EMPLOYEE FOR ANY CLAIM RELATED TO ASSISTANCE PROVIDED COVERED AS STATE EMPLOYEE FOR ANY CLAIM RELATED TO ASSISTANCE PROVIDED RECKLESS, WANTON, OR INTENTIONAL ACTS/OMISSIONS NOT COVERED RECKLESS, WANTON, OR INTENTIONAL ACTS/OMISSIONS NOT COVERED

6 LOCAL UNIT OF GOVERNMENT VOLUNTEER LABOR MAY NOT BE COMPENSATED LABOR MAY NOT BE COMPENSATED ALLOWS FOR REIMBURSEMENT OF: ALLOWS FOR REIMBURSEMENT OF: –TRAVEL, LODGING & MEALS MUST REGISTER OR PRE-REGISTER IN WRITING MUST REGISTER OR PRE-REGISTER IN WRITING GOOD FAITH ACTS OR OMISSIONS COVERED GOOD FAITH ACTS OR OMISSIONS COVERED

7 LOCAL GOV’T VOLUNTEER WORKERS COMP. COVERED AS EMPLOYEE OF UNIT OF GOV’T FOR WHICH REGISTERED IN WRITING COVERED AS EMPLOYEE OF UNIT OF GOV’T FOR WHICH REGISTERED IN WRITING INCLUDES TRAINING ACTIVITIES INCLUDES TRAINING ACTIVITIES REIMBURSED FOR EXCESS OF $1 PER CAPITA PER EVENT REIMBURSED FOR EXCESS OF $1 PER CAPITA PER EVENT LIABILITY COVERED AS EMPLOYEE OF UNIT OF GOV’T FOR ANY CLAIM RELATED TO ASSISTANCE PROVIDED COVERED AS EMPLOYEE OF UNIT OF GOV’T FOR ANY CLAIM RELATED TO ASSISTANCE PROVIDED RECKLESS, WANTON, OR INTENTIONAL ACTS/OMISSIONS NOT COVERED RECKLESS, WANTON, OR INTENTIONAL ACTS/OMISSIONS NOT COVERED

8 HOW DO I REGISTER IN WRITING? VOLUNTEER SIGN-IN SHEETS VOLUNTEER SIGN-IN SHEETS –MINIMAL CRITERIA PRE-REGISTRATION PRE-REGISTRATION HAM RADIO LOGS HAM RADIO LOGS DISPATCH LOGS DISPATCH LOGS

9 FEDERAL GOVERNMENT VOLUNTEER FEDERAL VOLUNTEER PROTECTION ACT OF 1997 (VPA) FEDERAL VOLUNTEER PROTECTION ACT OF 1997 (VPA) –CIVIL IMMUNITY FOR VOLUNTEERS SERVING NONPROFIT ORGANIZATIONS OR GOVERNMENT ENTITIES FOR ACTS AND OMISSIONS

10 VPA VOLUNTEER COVERAGE PROTECTS VOLUNTEER WHO: PROTECTS VOLUNTEER WHO: –PERFORMS OR DIRECTS SERVICES –VOLUNTEERS FOR NONPROFIT OR GOVERNMENTAL ORGANIZATIONS –RECEIVES NO COMPENSATION OR ANYTHING VALUING MORE THAN $50/MO OR $600/YR REASONABLE REIMBURSEMENT FOR EXPENSES ARE ALLOWED REASONABLE REIMBURSEMENT FOR EXPENSES ARE ALLOWED

11 VPA COVERAGE CONDITIONS VOLUNTEER ACTING WITHIN SCOPE OF RESPONSIBILITIES AT TIME OF ACT/OMISSION VOLUNTEER ACTING WITHIN SCOPE OF RESPONSIBILITIES AT TIME OF ACT/OMISSION VOLUNTEER PROPERLY LICENSED, CERTIFIED OR AUTHORIZED TO ACT VOLUNTEER PROPERLY LICENSED, CERTIFIED OR AUTHORIZED TO ACT NO WILLFUL, CRIMINAL OR RECKLESS MISCONDUCT NO WILLFUL, CRIMINAL OR RECKLESS MISCONDUCT HARM NOT CAUSED BY OPERATING A VEHICLE WHERE STATE REQUIRES LICENSURE HARM NOT CAUSED BY OPERATING A VEHICLE WHERE STATE REQUIRES LICENSURE

12 INTERACTION BETWEEN STATE AND FEDERAL LAW FEDERAL LAW PREEMPTS STATE LAW TO THE EXTENT LAW IS INCONSISTENT FEDERAL LAW PREEMPTS STATE LAW TO THE EXTENT LAW IS INCONSISTENT DOES NOT PREEMPT STATE LAW WHERE STATE PROVIDES ADDITIONAL PROTECTION TO VOLUNTEERS DOES NOT PREEMPT STATE LAW WHERE STATE PROVIDES ADDITIONAL PROTECTION TO VOLUNTEERS

13 BOTTOM LINE: STATE AND FEDERAL VOLUNTEER PROTECTION LAW DOES NOT MEAN THAT VOLUNTEERS CANNOT BE SUED STATE AND FEDERAL VOLUNTEER PROTECTION LAW DOES NOT MEAN THAT VOLUNTEERS CANNOT BE SUED VOLUNTEERS ARE LIABLE FOR CRIMINAL ACTIONS VOLUNTEERS ARE LIABLE FOR CRIMINAL ACTIONS

14 PROVIDERS OF EQUIPMENT OR SERVICES VOLUNTEER CIVIL LIABILITY IMMUNITY FOR DEATH OR INJURY TO PERSONS OR PROPERTY DAMAGE CIVIL LIABILITY IMMUNITY FOR DEATH OR INJURY TO PERSONS OR PROPERTY DAMAGE APPLIES TO ACTS OR OMISSIONS APPLIES TO ACTS OR OMISSIONS ALSO COVERS EQUIPMENT, MATERIALS, FACILITIES & LABOR FURNISHED ALSO COVERS EQUIPMENT, MATERIALS, FACILITIES & LABOR FURNISHED DOES NOT COVER RECKLESS, WANTON, OR INTENTIONAL MISCONDUCT DOES NOT COVER RECKLESS, WANTON, OR INTENTIONAL MISCONDUCT NO INDEMNIFICATION NO INDEMNIFICATION

15 PROVIDERS OF EQUIPMENT OR SERVICES VOLUNTEER CIVIL IMMUNITY CONTINGENT ON: CIVIL IMMUNITY CONTINGENT ON: –ACTIONS TAKEN UNDER DIRECTION OF GOVERNOR GOVERNOR ADJUTANT GENERAL ADJUTANT GENERAL GOVERNING BODY, CHIEF OR ACTING CHIEF EXEC. OFFICER OR HEAD OF EM OF COUNTY, TOWN, MUNICIPALITY OR TRIBE GOVERNING BODY, CHIEF OR ACTING CHIEF EXEC. OFFICER OR HEAD OF EM OF COUNTY, TOWN, MUNICIPALITY OR TRIBE DHS (IF LEAD AGENCY) DHS (IF LEAD AGENCY) A LOCAL HEALTH DEPT AS AGENT OF DHS A LOCAL HEALTH DEPT AS AGENT OF DHS

16 PROVIDERS OF EQUIPMENT OR SERVICES VOLUNTEER AND ACTIONS TAKEN ARE IN RESPONSE TO: AND ACTIONS TAKEN ARE IN RESPONSE TO: –ENEMY ACTION, OR –A DISASTER, OR –FEDERALLY DECLARED STATE OF EMERGENCY, OR –STATE OF EMERGENCY DECLARED BY GOVERNOR

17 GOOD SAMARITAN LAW § (1) Wis. Stats. CIVIL LIABILITY IMMUNITY CIVIL LIABILITY IMMUNITY APPLIES TO PERSON WHO RENDERS “EMERGENCY CARE” AT SCENE OF EMERGENCY IN GOOD FAITH APPLIES TO PERSON WHO RENDERS “EMERGENCY CARE” AT SCENE OF EMERGENCY IN GOOD FAITH APPLIES TO ACTS OR OMISSIONS APPLIES TO ACTS OR OMISSIONS DOES NOT COVER RECKLESS, WANTON OR INTENTIONAL CONDUCT DOES NOT COVER RECKLESS, WANTON OR INTENTIONAL CONDUCT

18 “GOOD SAM” LIMITATIONS DOES NOT APPLY TO EMPLOYEES TRAINED IN HEALTHCARE OR HEALTH CARE PROFESSIONALS IF: DOES NOT APPLY TO EMPLOYEES TRAINED IN HEALTHCARE OR HEALTH CARE PROFESSIONALS IF: –EMERGENCY CARE RENDERED FOR COMPENSATION AND WITHIN SCOPE OF USUAL AND CUSTOMARY EMPLOYMENT –PROFESSIONAL “BENEFIT”

19 “GOOD SAM” EMERGENCY CARE RULING MUELLER v. McMILLIAN WARNER INSURANCE CO. MUELLER v. McMILLIAN WARNER INSURANCE CO. REFERS TO INITIAL EVALUATION AND TREATMENT OF AN INJURED PERSON UNTIL CARE CAN BE TRANSFERRED TO MEDICAL PROFESSIONALS REFERS TO INITIAL EVALUATION AND TREATMENT OF AN INJURED PERSON UNTIL CARE CAN BE TRANSFERRED TO MEDICAL PROFESSIONALS

20 HOW DOES HIPAA APPLY TO A VOLUNTEER?

21 HIPAA ARE YOU A “COVERED ENTITY” UNDER HIPAA? ARE YOU A “COVERED ENTITY” UNDER HIPAA? –NO, UNLESS YOU ARE REPRESENTING OR ACTING AS AN EMPLOYEE OF A HOSPITAL, HEALTH CARE CLEARINGHOUSE OR A HEALTH CARE WRONGFUL DISCLOSURE OF INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION WRONGFUL DISCLOSURE OF INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION –IF YOU KNOWINGLY USE OR CAUSE TO BE USED INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION YOU CAN BE PUNISHED BY FINES UP TO $250,000 AND UP TO 10 YEARS IN PRISON –BE CAREFUL WHAT YOU SAY REGARDING HEALTH INFORMATION!

22 OTHER CONSIDERATIONS

23 DEPLOYMENT ISSUES HOW ARE VOLUNTEERS ACTIVATED OR DEPLOYED? HOW ARE VOLUNTEERS ACTIVATED OR DEPLOYED? SELF-DEPLOYMENT? SELF-DEPLOYMENT? –NOTIFICATION BACK-UP OR BUDDY SYSTEM? BACK-UP OR BUDDY SYSTEM?

24 TRANSPORTATION ISSUES DO YOUR VOLUNTEERS TRANSPORT PATIENTS/VICTIMS? DO YOUR VOLUNTEERS TRANSPORT PATIENTS/VICTIMS? DO YOUR VOLUNTEERS DELIVER SUPPLIES? DO YOUR VOLUNTEERS DELIVER SUPPLIES? INSURANCE COVERAGE? INSURANCE COVERAGE? PERSONAL? ORGANIZATION? PERSONAL? ORGANIZATION? DO VOLUNTEERS DRIVE IN HAZARDOUS CONDITIONS? DO VOLUNTEERS DRIVE IN HAZARDOUS CONDITIONS?

25 TRAINING ISSUES ARE YOUR VOLUNTEERS TRAINED TO PERFORM SPECIALIZED TASKS? ARE YOUR VOLUNTEERS TRAINED TO PERFORM SPECIALIZED TASKS? DO YOU SUSPECT THAT YOUR VOLUNTEERS ARE PERFORMING TASKS FOR WHICH THEY ARE NOT TRAINED? DO YOU SUSPECT THAT YOUR VOLUNTEERS ARE PERFORMING TASKS FOR WHICH THEY ARE NOT TRAINED? DO YOU HAVE SAFETY BRIEFINGS? DO YOU HAVE SAFETY BRIEFINGS? AGE LIMITATIONS? AGE LIMITATIONS?

26 RISK MANAGEMENT BEST PRACTICES HELPS REDUCE LIABILITY HELPS REDUCE LIABILITY WHAT DO YOU PROVIDE? WHAT DO YOU PROVIDE? –SPECIALIZED TRAINING –SPECIAL EQUIPMENT –SPECIAL GEAR AND CLOTHING ARE LISTS OF VOLUNTEERS MAINTAINED AND KEPT CURRENT? ARE LISTS OF VOLUNTEERS MAINTAINED AND KEPT CURRENT?

27 RISK ASSESSMENTS DO YOU PRE-QUALIFY VOLUNTEERS? DO YOU PRE-QUALIFY VOLUNTEERS? VOLUNTEER REGISTRATION FORMS? VOLUNTEER REGISTRATION FORMS? –ID SKILLS? –ID SPECIAL TRAINING OR LICENSES HELD? IMMUNIZATION INFORMATION? IMMUNIZATION INFORMATION? RELEASE OF LIABILITY STATEMENTS? RELEASE OF LIABILITY STATEMENTS? –PERSONAL AND FOR PROPERTY OWNERS

28 BACKGROUND CHECKS AN IMPORTANT CONSIDERATION AN IMPORTANT CONSIDERATION DEVELOP A WRITTEN POLICY DEVELOP A WRITTEN POLICY PREPARED IN ADVANCE PREPARED IN ADVANCE REDUCES EXPOSURE TO HARMING THE VULNERABLE REDUCES EXPOSURE TO HARMING THE VULNERABLE BUILDS CREDIBILITY OF YOUR ORGANIZATION BUILDS CREDIBILITY OF YOUR ORGANIZATION SEXUAL OFFENDER REGISTRIES? SEXUAL OFFENDER REGISTRIES?

29 CREDENTIALING DOES YOUR ORGANIZATION OR THE SERVICE PROVIDED REQUIRE THAT VOLUNTEERS MAINTAIN A LICENSE OR CERTIFICATION? DOES YOUR ORGANIZATION OR THE SERVICE PROVIDED REQUIRE THAT VOLUNTEERS MAINTAIN A LICENSE OR CERTIFICATION? WHO ENSURES THAT LICENSE OR CERTIFICATION ARE CURRENT? WHO ENSURES THAT LICENSE OR CERTIFICATION ARE CURRENT? WHO IS CUSTODIAN OF THOSE RECORDS? WHO IS CUSTODIAN OF THOSE RECORDS?

30 INSURANCE POLICIES SHOULD YOUR ORGANIZATION MAINTAIN LIABILITY INSURANCE? SHOULD YOUR ORGANIZATION MAINTAIN LIABILITY INSURANCE? –FOR VOLUNTEER INJURIES? –FOR DAMAGES CAUSED BY VOLUNTEERS? DO YOU MAINTAIN INSURANCE COVERAGE ON YOUR VEHICLES AND SPECIAL EQUIPMENT? DO YOU MAINTAIN INSURANCE COVERAGE ON YOUR VEHICLES AND SPECIAL EQUIPMENT?

31 MISCELLANEOUS CONSIDERATIONS VICARIOUS LIABILITY TO MUNICIPALITIES VICARIOUS LIABILITY TO MUNICIPALITIES WI OPEN RECORDS LAW WI OPEN RECORDS LAW INJURIES TO VOLUNTEERS INJURIES TO VOLUNTEERS –TIMELY NOTIFICATION OF “EMPLOYER”

32 HOW CAN YOU REDUCE LIABILITY? EXERCISE SOUND REASONABLE JUDGMENT EXERCISE SOUND REASONABLE JUDGMENT ACT IN GOOD FAITH ACT IN GOOD FAITH MAKE DECISIONS WITH APPRECIATION OF LIABILITY CONSIDERATIONS MAKE DECISIONS WITH APPRECIATION OF LIABILITY CONSIDERATIONS

33 QUESTIONS OR COMMENTS? THANK YOU FOR YOUR TIME AND ATTENTION!! THANK YOU FOR YOUR TIME AND ATTENTION!!


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