1 Interjurisdictional Legal Responses During Public Health Emergencies and Altered Standards of Care 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 Objectives Legal Environment inEmergencies Legal Triage Altered/Situational Standards of Care

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 Assessing the Legal Environment in Emergencies

5 The Convergence of Governments During Emergencies

6 The Convergence of Partners During Emergencies

7 The Convergence of Specific Actors During Emergencies

8 Legal Triage During Emergencies Legal Triage

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

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

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 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 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 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

17 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

18 “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

19 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

20 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

21 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 - 26 Data Current as of April 1, 2008

22 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

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

24 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 Deployment, uses, authorities, liabilities, and immunities of various actors depend on the declared emergency

25 Standards of Care - Defined  “Standards of care” in the medical context refer generally to the type and level of medical care required in specific circumstances via professional norms, accreditation, or other requirements.  “Legal standards of care” refer to the amount of skill that a medical practitioner should exercise in particular circumstances based on reasonable and common practice in medical care.

26 Standards of Care - Defined  Breaches of legal standards of care may lead to liability if:  The actor has a duty to provide care;  Breach is intentional or negligent;  Harm is proximately caused by the breach; and  Breach results in damages.

27 APHA Survey on Volunteer Health Practitioner Legal Issues Civil Liability – As a potential volunteer, how important to you is your immunity from civil lawsuits whether to volunteer during emergencies? 5.5% 25% 35.6% 33.8% Data as of October 5, %

28 Risks of Civil Liability Liability Risks to HCWs, Volunteers, and Hospitals

29 Umbrella of Liability Coverage Mutual Aid Agreements Good Samaritan Acts Federal VPA State VPA EMAC Indemnification JCAHO Standards/ Policies & Practices MOUs UEVHPA State EHPA Civil Liability Protections

30 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, standards of care, and workers’ compensation for VHPs Available at

31 Standards of Care – Take Home Messages 31 The line of liability is intrinsically tied to changing standards of care during emergencies which may vary across jurisdictions Predicting/determining where the line is drawn in advance is key, but flexibility is part of emergency preparedness and must be taken into account

32 Additional Resources 32 ESAR-VHP Legal and Regulatory Issues Report & Checklist ESAR-VHP Legal and Regulatory Issues Report Annex: Local Emergency Laws (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: Thank you!