Standards of Care During a Mass Casualty Event: Interstate and Neighboring Community Cooperation and Coordination, The Role of Uniform State Legislation Institute of Medicine Regional Workshop April 14, 2009 Raymond P. Pepe K&L Gates LLP

Barriers to Implementing Alternative Standards of Care Lack of Authority to Promulgate Alternative Standards Civil Immunity Standards May Not Recognize Alternative Standards and Apply to All Affected Practitioners Scope of Practice Limitations May Impede Effective Responses

Barriers to Implementing Alternative Standards of Care State Laws May Impede Access to Electronic Healthcare Records Insurance Coverage May Not Apply Licensing Restrictions May Impede the Movement of Practitioners Needed to Create Surge Capacity Differences in State Laws and Rules May Impede Coordination

Uniform Emergency Volunteer Health Practitioners Act Helps Remove Some of the Barriers to Implementing Alternative Standards of Care Provides a Model for Promoting Interstate Cooperation Avoids the Need for Federal Preemption

What is NCCUSL? The National Conference of Commissioners on Uniform State Laws is: The National Conference of Commissioners on Uniform State Laws is:  The oldest state governmental organization in existence. Since 1892 it has fulfilled a primary role in the U.S. for the improvement of state law  An organization of legal professionals  An organization of state officials devoted to improvement of state law

NCCUSL’s Value  NCCUSL’s work reduces pressure for federal preemption due to inconsistent state law  NCCUSL has helped preserve the federal system crafted in Philadelphia over 200 years ago  Uniform Acts enable PA to take advantage of judicial precedent established in multiple states interpreting the same legal provisions

Membership  The current membership consists of 315 lawyers, who fall generally into four categories: Private Practitioners Private Practitioners Governmental Lawyers - 44 Governmental Lawyers - 44 Judges - 28 Judges - 28 Educators - 50 Educators - 50  There are 32 legislators in NCCUSL, many of whom are also private practitioners or educators.

Appointment Each State determines the mode of appointment. Each State determines the mode of appointment. Representative of State Legislative Reference Bureaus and Law Reform Commissions serve as ex officio members. Representative of State Legislative Reference Bureaus and Law Reform Commissions serve as ex officio members.

The Work of Commissioners Commissioners represent their States, without compensation, by: Commissioners represent their States, without compensation, by:  Serving on NCCUSL study, drafting and other committees  Representing their State at the NCCUSL Annual Meeting  Carrying Uniform and Model Acts back to their States and working to assist the Legislature in its consideration.

Widely Enacted Uniform Acts Promulgated by the ULC Anatomical Gift Act (36 states) Anatomical Gift Act (36 states) Arbitration Act (49 states) Arbitration Act (49 states) Athletic Agents Act (38 states) Athletic Agents Act (38 states) Child Custody Jurisdiction and Enforcement Act (48 states) Child Custody Jurisdiction and Enforcement Act (48 states) Commercial Code (all states) Commercial Code (all states) Conservation Easements (24 states) Conservation Easements (24 states) Determination of Death Act (43 states) Determination of Death Act (43 states) Electronic Transactions Act (48 states) Electronic Transactions Act (48 states) Enforcement of Foreign Judgments (47 states) Enforcement of Foreign Judgments (47 states) Environmental Covenants (28 states) Environmental Covenants (28 states) Federal Lien Registration Act (36 states) Federal Lien Registration Act (36 states) Fraudulent Transfers Act (44 states) Fraudulent Transfers Act (44 states)

Widely Enacted Uniform Acts Promulgated by the ULC Interstate Family Support Act (all states) Management of Institutional Funds Act (48 states) Partnership Act (39 states) Principle and Interest Act (43 states) Prudent Investor Act (46 states) Real Property Electronic Recording Act (20 states) TOD Securities Registration Act (49 states) Trade Secrets Act (46 states) Transfer to Minors Act (49 states) Trust Code (21 states)

NCCUSL Funding 73% of the NCCUSL Budget, $3.2 million, comes from state contributions. 73% of the NCCUSL Budget, $3.2 million, comes from state contributions. –Every state, plus Puerto Rico, the District of Columbia, and the US Virgin Islands, is assessed an amount based on population. The American Bar Association makes an annual contribution of $20, and The American Bar Association makes an annual contribution of $20, and The remainder comes from foundation or federal grants. The remainder comes from foundation or federal grants.

Drafting Uniform and Model Acts – Step 1 A proposal is submitted to the Scope and Program Committee, which reviews all proposals. A proposal is submitted to the Scope and Program Committee, which reviews all proposals. The Committee may recommend to the NCCUSL Executive Committee a drafting project or further study. The Committee may recommend to the NCCUSL Executive Committee a drafting project or further study.

Step 1 cont’d The Executive Committee may accept the recommendation of Scope & Program. The Executive Committee may accept the recommendation of Scope & Program. If so, the President is authorized to appoint a drafting or study committee. If so, the President is authorized to appoint a drafting or study committee.

Standards “the subject... shall be such that uniformity of law among States will produce significant benefits to the public through improvements in the law... or will avoid significant disadvantages likely to arise from diversity of state law…” “the subject... shall be such that uniformity of law among States will produce significant benefits to the public through improvements in the law... or will avoid significant disadvantages likely to arise from diversity of state law…”

Step 2: The Drafting Committee Drafting committee members are appointed by the NCCUSL President from among the commissioners. Drafting committee members are appointed by the NCCUSL President from among the commissioners. A reporter is usually recruited for the drafting committee. Generally a scholar with credentials in that area of law is recruited. A reporter is usually recruited for the drafting committee. Generally a scholar with credentials in that area of law is recruited. The American Bar Association appoints advisors by agreement between the ABA and NCCUSL. The American Bar Association appoints advisors by agreement between the ABA and NCCUSL.

Step 3: Committee Work Drafting Committees meet over long weekends. Issues are identified, policies debated, and drafts critiqued. Drafting Committees meet over long weekends. Issues are identified, policies debated, and drafts critiqued. Meetings are open to anyone who wants to participate. Committees actively seek to identify and invite all interests to participate. Meetings are open to anyone who wants to participate. Committees actively seek to identify and invite all interests to participate. Typically a drafting committee works a minimum of two years before an act is put to a final vote of the whole NCCUSL. Typically a drafting committee works a minimum of two years before an act is put to a final vote of the whole NCCUSL.

Committee Work cont’d Notices of meetings and drafts are sent to anyone on request. Notices of meetings and drafts are sent to anyone on request. Those who do not desire to participate in meetings are invited to provide written commentary. Those who do not desire to participate in meetings are invited to provide written commentary. The NCCUSL website maintains calendars and allows committees to establish bulletin boards and listserves. The NCCUSL website maintains calendars and allows committees to establish bulletin boards and listserves.

Committee Work cont’d The Chair of each committee is in charge of the meeting. The Chair of each committee is in charge of the meeting. Final Committee decisions are made by committee members, but advisors and observers actively participate. Final Committee decisions are made by committee members, but advisors and observers actively participate. Written comments solicited and considered. Written comments solicited and considered.

Step 4: Annual Meeting Consideration of Acts 7 intensive days in July/August 7 intensive days in July/August Every drafting committee must read and defend its act before the entire body of uniform law commissioners during at least two annual meetings. Every drafting committee must read and defend its act before the entire body of uniform law commissioners during at least two annual meetings. Once the body of commissioners is satisfied, the act is put to a vote by states for final promulgation. Once the body of commissioners is satisfied, the act is put to a vote by states for final promulgation.

Exceptional Meetings “ I have seen many deliberative bodies before and since, but in none were the discussions of the same high quality.” William H. Rehnquist Chief Justice of the United States Supreme Court NCCUSL Commissioner from

Final Disposal No uniform or model act becomes law until a state legislature enacts it and a state governor signs it. The Uniform Law Commissioners may propose, but the state legislatures must dispose.No uniform or model act becomes law until a state legislature enacts it and a state governor signs it. The Uniform Law Commissioners may propose, but the state legislatures must dispose. Uniform Law Commissioners do not draft legislation for Congress, and generally oppose efforts to federalize subject areas in which uniform and model acts are drafted.Uniform Law Commissioners do not draft legislation for Congress, and generally oppose efforts to federalize subject areas in which uniform and model acts are drafted.

New Acts Being Developed or Considered Business Ownership Reporting Collaborative Law Collateral Consequences of Convictions Division of Income for Tax Purposes Electronic Recording of Custodial Interrogations Insurable Interests Held by Trusts Marital and Premarital Agreements

Acts Being Developed or Considered Intestate Succession for Children of Assisted Reproduction Misuse of Genetic Information Model State Administrative Procedures Notarial Acts Presidential Electors Regulation of Charities Real Property Transfer on Death Statutory Trusts Tenancy in Common Partition Harmonization of Business Entities

NCCUSL Website is the NCCUSL website. It contains: organizational information; organizational information; current drafting committees; current drafting committees; press releases; press releases; legislative information and enactment status of selected acts, updated regularly; legislative information and enactment status of selected acts, updated regularly; drafts of current projects and texts of most final uniform acts, which can be downloaded. drafts of current projects and texts of most final uniform acts, which can be downloaded.

Uniform Emergency Volunteer Health Practitioners Act Robust System for Interstate Recognition of Health Practitioner Licenses (supplements EMAC) Extends Civil Immunity and Workers Compensation Benefits to Emergency Volunteers Defines Permissible Interstate Scope of Practice

Uniform Emergency Volunteer Health Practitioners Act Permits Modifications to Scope of Practice Enhances State Emergency Management Authority Controls Spontaneous Volunteerism Creates Interstate System for Disciplinary Enforcement

Contact Information Raymond P. Pepe PA Commissioner K&L Gates LLP 17 North 2 nd Street Harrisburg, PA John A. Sebert Executive Director Suite N. Wabash Ave Chicago, IL