1. 1 Legal Responses in Real-Time During Public Health Emergencies April 3, 2009 James G. Hodge, Jr., J.D., LL.M. Professor, Johns Hopkins Bloomberg School of Public Health; Executive Director, Centers for Law & the Public’s Health: A Collaborative at Johns Hopkins and Georgetown Universities

2. 2 Objectives Legal Environment inEmergencies Legal Triage Volunteer Health Practitioners (VHPs)

3. 3 Assessing the Legal Environment in Emergencies Laws pervade emergency responses at every level of government : They determine what constitutes a public health- or other type 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

4. 4 Assessing the Legal Environment in Emergencies Types of Laws TreatiesConstitutions Statutes RegulationsPolicies Cases Compacts

5. 5 The Convergence of Governments During Emergencies Govern- ment InternationalNational State TribalCounty City Community

6. 6 The Convergence of Partners During Emergencies Partners Public Health Environment Law Enforcement National Security HospitalsNGOs Private Industries Emergency Management

7. 7 The Convergence of Specific Actors During Emergencies Actors Public Health Officials Lab Directors Law Enforcers Federal Agents Health Care Workers Health Administrators VolunteersMilitary

8. 8 Legal Triage During Emergencies Government Partners Actors Laws Legal Triage

9. 9 Legal Triage During Emergencies Legal triage refers to: the efforts of legal actors and others to construct a favorable legal environment through a prioritization of issues and solutions that facilitate public health responses during emergencies.

10. 10 Legal Triage During Emergencies Legal actors must be prepared to: Assess and monitor changing legal norms during emergencies ; Identify legal issues that may facilitate or impede public health responses as they arise; Develop innovative, responsive legal solutions to reported barriers to public health responses; Explain legal conclusions through tailored communications to planners and affected persons; and Revisit the utility, efficacy, and ethicality of legal guidance.

11. 11 Declared States of Emergency Once an emergency has been declared, the legal landscape changes.

12. 12 Emergency Declarations How the legal landscape changes depends on the type of emergency declared

13. 13 Emergency Declarations Before 9/11:  Existing legal infrastructures focused on general emergency or disaster responses  “All hazards” approach After 9/11:  Reforms of emergency laws to address “public health emergencies”  Based in part on the Center’s Model State Emergency Health Powers Act (MSEHPA)

14. 14 Multiple Levels of Emergency Declarations Local State Federal Emergency or Disaster Public Health Emergency or Disaster Public Health Emergency “FEMA” Emergency “HHS” Public Health Emergency

15. 15 States That Define “Emergency” HI AK CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT RI MA ME DC MD NHVT PR - (Puerto Rico) VI - (U.S. Virgin Islands) “Emergency” or similar term defined in state statutes - 39 Data Current as of April 1, 2008

16. 16 “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).

17. 17 States That Define “Disaster” HI AK CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT RI MA ME DC MD NHVT PR - (Puerto Rico) VI - (U.S. Virgin Islands) “Disaster” or similar term defined in state statutes - 42 Data Current as of April 1, 2008

18. 18 “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).

19. 19 States That Define “Public Health Emergency” HI AK CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT RI MA ME DC MD NHVT PR - (Puerto Rico) VI - (U.S. Virgin Islands) “Public health emergency” or similar term defined in state statutes - 26 Data Current as of April 1, 2008

20. 20 “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

21. 21 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

22. 22 The Model State Emergency Health Powers Act (MSEHPA) Government is vested with specific, expedited powers to facilitate emergency responses Individuals are bestowed special protections and entitlements State medical licensure requirements may be waived Responders may be protected from civil liability

23. 23 States That Define “Public Health Emergency” and “Emergency” or “Disaster” HI AK CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT RI MA ME DC MD NHVT PR - (Puerto Rico) VI - (U.S. Virgin Islands) “Emergency”, “disaster”, and “public health emergency” (or similar terms) defined in state Statutes - 27 Data Current as of April 1, 2008

24. 24 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) can lead to overlapping priorities Widely divergent responses and decisions on key issues

25. 25 The Proliferation of Emergency Issues During Legal Triage Altered Standards Allocation of Resources Public Health Powers Authority VHPs Liability Legal Triage

26. 26 Major Legal Issues Affecting Volunteer Health Practitioners (VHPs) 1)Assessing the Legal Environment During Emergencies 2)Licensing, Credentialing, and Privileging 3)Civil Liability, Immunity, and Indemnification 4) Workers’ Compensation 5) Criminal Liability

27. 27 Multiple Levels of Emergency Declarations and Volunteers Local emergency or disaster Local public health emergency State emergency or disaster State public health emergency Federal “FEMA” emergency Federal “DHHS” public health emergency Deployment, uses, authorities, liabilities, and immunities of volunteer health practitioners (VHPs) depend on the type of declared emergency

28. 28 UEVHPA The Uniform Emergency Volunteer Health Practitioners Act of 2007 Developed by the National Conference of Commissioners on Uniform State Laws (NCCUSL) Addresses key issues of registration, licensure portability, civil liability, and workers’ compensation Available at www.uevhpa.orgwww.uevhpa.org

29. 29 UEVHPA Legislative Activity HI AK CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IA MO AR LA VA NC GA FL AL MS IL WV KY TN NY PA IN OH MI DE NJ CT RI MA ME DC MD NHVT PR - (Puerto Rico) VI - (U.S. Virgin Islands) Enacted Introduced in 2007 or 2008 Data Current as of July 1, 2008

30. 30 Additional Resources 30 ESAR-VHP Legal and Regulatory Issues Report & Checklist ESAR-VHP Legal and Regulatory Issues Report Annex: Local Emergency Laws - 2009 (Forthcoming) Center’s Advanced Tool Kit for ESAR-VHP Coordinators Hurricanes Katrina and Rita: Legal Issues Concerning VHPs Compendium – October 2005 Principles and Practice of Legal Triage During Public Health Emergencies. NYU Annual Survey of American Law 2009 All available at the Center’s website: www.publichealthlaw.net

31. 31 Conclusion Questions, comments, suggestions? Thank you!