1 VHP Legal and Regulatory Issues in Real-time during the Gulf Coast Hurricane Emergencies James G. Hodge, Jr., J.D., LL.M. Lance A. Gable, J.D., M.P.H. Principal Investigator, HRSA ESAR-VHP Legal Project Director, HRSA ESAR-VHP Legaland Regulatory Issues Project Associate Professor, Johns Hopkins Bloomberg School of PH Executive Director, Center for Law & the PublicsSenior Fellow, Center for Law & the Publics Health at Georgetown and Johns Hopkins Health at Georgetown and Johns Hopkins UniversitiesUniversities

2 Principal Objectives Assessing the Legal Environment During Emergencies The Centers Real-time Responses to Hurricanes Katrina, Rita, and Wilma Specific Issues for Workshop Discussion Legal authority to deploy VHPs Multiple levels of emergency declarations EMAC limitations Federalizing VHPs Questions, Comments, Thought for Discussion

3 Assessing the Legal Environment in Emergencies Govern- ment InternationalNationalStateTribalCountyCityCommunity

4 Assessing the Legal Environment in Emergencies Types of Laws TreatiesConstitutionsStatutesRegulationsPoliciesCasesCompacts

5 Assessing the Legal Environment in Emergencies Partners Public Health Environment Law Enforcement National Security HospitalsNGOs Private Industries Emergency Management

6 Assessing the Legal Environment in Emergencies Actors Public Health Officials Lab Directors Police Officers Federal Agents Health Care Workers Health Administrators VolunteersMilitary

7 Assessing the Legal Environment in Emergencies Government PartnersActors Emergency- based Legal Triage

8 Assessing the Legal Environment – Hurricane Katrina Invocation of Federal and State Emergency Declarations Interjurisdictional Coordination Among Federal, State, and Local Governments Capacity to Utilize Volunteer Health Personnel and Others Actual and Anticipated Harms to Displaced Persons and Those Assisting Them Potential for Litigation & Policy Reform

9 Assessing the Legal Environment in Disasters – Hurricane Katrina Emergencies Licensing LiabilityProtections from Harms

10 Centers Real-Time Responses to Legal Issues During the Hurricane-related Emergencies Extensive consultation with VHPs en route and on location in AL, LA, MS, TX, and other states Additional consultation with prospective senders and hosts of VHPs Production of memos and articles re: specific legal issues Tracking of federal and state legal responses Circulation of new editions of HRSAs Legal and Regulatory Issues Report (9/05) and the Centers Advanced Tool Kit (8/05) Resources available at Research/Affprojects.htmwww.publichealthlaw.net/

11 Specific Issues for Workshop Discussion Legal Authority to Deploy VHPs Multiple Levels of Emergency Declarations EMAC Limitations Concerning Private Sector VHPs Federalizing VHPs through DHHS

12 Legal Authority to Deploy VHPs The VHP SU DO KU

13 Legal Authority to Deploy VHPs Question? How Are These VHP Gaps Filled?

14 Legal Authority to Deploy VHPs 1LS9FP4 29PL58 92PL S4856F F8269S PL67SP PS5LS9 Question? Who Fills the Gaps? Feds [F], States [S], Locals [L], Private Sector [P]

15 Legal Authority to Deploy VHPs Federal agents DHHS or other full-time employees Federalized agents Military personnel State or local agents State or local full-time employees via EMAC Temporary state agents National Guard, Medical Reserve Corps Private Sector Hospitals or other care providers Charitable organizations ESAR-VHP

16 Multiple Levels of Emergency Declarations Federal, state, and many local governments have the ability to declare a state of general emergency ordisaster. The powers and processes that arise from such declarations vary. Federal and many state governments (as well as some locals) may also declare public health emergencies. Emergency powers, legal protections, and operational definitions may be inconsistent in dual declaration states.

17 Emergency Declarations Once an emergency has been declared, the legal landscape changes.

18 Emergency Declarations Government is vested with specific powers to facilitate emergency responses Individuals are bestowed special protections State licensure requirements may be waived Responders may be protected from civil liability

19 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 VHP deployment, uses, authorities, liabilities, immunities, protections from harm vary (and those with the answers) depend on the declared emergency

20 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 HHS public health emergency

21 EMAC: Volunteer Health Professionals Emergency Management Assistance Compact (EMAC) Mutual Aid Agreement Passed into law by 49 states Formalized emergency request framework Broad immunity for responders – considered agents of requesting state

22 EMAC Limitations Concerning Private Sector VHPs : Filling the Pool State Officers and Employees Private Sector Local Employees

23 EMAC: Volunteer Health Professionals How EMAC is designed to work: Pool of responders are needed to fill surge capacity needs These needs are only partially filled using the available VHPs who are state officers or employees

24 EMAC Response: Hurricane Katrina State approaches to fill the pool: Memoranda of Understanding with local governments or private volunteers (OH) Temporary hiring or appointment to state positions (MD) Automatic incorporation of local government employees into the state government (VA)

25 EMAC Responses in Future Emergencies Potential state approaches to fill the pool: Expansion of temporary hiring procedures under state laws to systematize these processes Amendment of EMAC to include coverage for a broader array of VHPs

26 EMAC Responses in Future Emergencies Limitations on future efforts to fill the pool: Existing EMAC structure may deter some potential volunteers Sending states may not wish to take on the burdens of taking on extra responders Amendment of EMAC legislation may be politically challenging

27 Federalization of VHPs: Opening the Door The federal government has authority to federalize VHPs during a declared general or public health emergency Federal Government

28 Federalization of VHPs: Opening the Door Three approaches may be used under federal law to incorporate volunteers: Intermittent disaster response personnel Temporary HHS volunteers Schedule A of the Excepted Service Federal Government

29 Federalization of VHPs: Opening the Door Federalized VHPs qualify for a variety of legal protections for the duration of their participation in the emergency response Legal Protections: Immunity from Civil Liability (FTCA) Workers Compensation Coverage (FECA) Reemployment Rights

30 Federalizing VHPs: Issues When may states use federal volunteers? Who is in control of federal VHPs? How do federal VHPs, EMAC VHPs, and state, local, and private sector health professionals work together? Who is in charge?

31 Questions, Comments, Thoughts Opportunity for Discussion For more information, contact us or visit our website: James G. Hodge, Jr., Executive Director Lance Gable, Senior Fellow