1. 1 Public Health Systems Research Creating the Evidence for Policy February 8, 2006 Legal Issues Concerning Volunteer Health Professionals in Public Health Emergencies James G. Hodge, Jr., J.D., LL.M. Associate Professor, Johns Hopkins Bloomberg School of Public Health; Executive Director, Center for Law & the Public’s Health at Georgetown and Johns Hopkins Universities

2. 2 Principal Objectives Assessing the Legal Environment in Public Health Emergencies Legal Triage During Emergencies Legal Issues Underlying the Deployment and Use of Volunteer Health Professionals (VHPs) Declaration of States of Emergency Licensure Reciprocity Civil Liability and Immunity Protections from Harms

3. 3 Assessing the Legal Environment in Public Health Emergencies Types of Laws TreatiesConstitutions Statutes RegulationsPolicies Cases Compacts

4. 4 Assessing the Legal Environment in Public Health Emergencies L aws pervade emergency responses at every level of government: They dictate the nature of what constitutes a public health or other 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

5. 5 The Convergence of Governments in Public Health Emergencies Govern- ment InternationalNational State TribalCounty City Community

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

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

8. 8 Legal Triage During Public Health Emergencies Government PartnersActors Legal Triage in PHEs – Public health law in real- time

9. 9 State of Emergency Once an emergency has been declared, the legal landscape changes.

10. 10 The Center’s Model State Emergency Health Powers Act (MSEHPA) Government is vested with specific and 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

11. 11 The Use and Deployment of VHPs to Meet Surge Capacities During Emergencies  During Hurricane Katrina, there quickly arose a significant need for additional health personnel to meet patient surge capacities  Volunteer medical personnel responded to this need through multiple routes – federal, state, local, and private sector  Through its Emergency Systems for the Advance Registration of Volunteer Health Professionals (ESAR-VHP) program, HRSA and state partners deployed thousands of pre-vetted VHPs to the Gulf Coast states

12. 12 The Use and Deployment of VHPs – Legal Issues 1)Declaration of States of Emergency 2)Licensing of VHPs 3)Civil Liability, Immunity, and Indemnification 4)Protections from Harms – Workers’ Compensation

13. 13 Emergency Declarations What is the effect of an emergency declarations pertaining to VHPs? VHP deployment, uses, authorities, liabilities, immunities, and protections from harm all vary depending on (1) the type of emergency declared and (2) the level of government making the declaration

14. 14 States That Define “Emergency” Among 30 Phase I & II ESAR-VHP States HI AK CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IO 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

15. 15 States That Define “Disaster” Among 30 Phase I & II ESAR-VHP States HI AK CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IO 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

16. 16 States That Define “Public Health Emergency” Among 30 Phase I & II ESAR-VHP States HI AK CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IO 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

17. 17 States That Define “Public Health Emergency” and “Emergency” or “Disaster” Among 30 Phase I & II ESAR-VHP States HI AK CA OR WA ID MT TX SD WY NV OK KS NE CO NM AZ UT ND SC MN WI IO 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

18. 18 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

19. 19 Regulation of Professionals When can VHPs practice across state lines?  Emergency declarations and other laws provide for portability of licensure, certification, and credentialing for some volunteer medical responders  Some health practitioners have increased portability rights under state-level agreements like the Emergency Management Assistance Compact (EMAC) or other non-emergency reciprocity agreements (e.g., Nurse Licensure Compact)  Additional practitioners may benefit from temporary federal status under multiple legal routes

20. 20 Civil Liability, Immunity, and Indemnification Major questions:  Who may face civil liability?  What types of actions are subject to civil liability?  What are the legal protections from civil liability?

21. 21 Civil Liability Who may face civil liability?  Volunteer health professionals  Health care entities supplying VHPs  Health care entities hosting VHPs

22. 22 Civil Liability Legal theories include:  Negligence/malpractice  Intentional torts  Privacy  Misrepresentation  Discrimination

23. 23 Civil Liability Liability Risks to VHPs and Supplier/Host Entities

24. 24 Liability Protections Mutual Aid Agreements Good Samaritan Acts Federal VPA State VPAs EMAC Immunities JCAHO Standards/ Policies & Practices MOUs Insurance Coverage State EHPA Civil Liability Protections

25. 25 Protection of VHPs from Harms - Workers’ Compensation Key Questions:  Who is an employee for the purposes of workers’ compensation? – not typically VHPs  Who is the employer of volunteers? Their host? Their existing employer? Government? NGOs?  When is a volunteer acting within the scope of her employment? – a key to workers’ comp coverage  When is a volunteer “injured” in the course of emergency responses? Consider disease outbreaks

26. 26 Conclusions Legal preparedness is an essential component to detecting, preventing, and responding to public health emergencies Laws – their development, interpretation, and application – during emergencies have the potential to facilitate (or derail) effective public health responses The key is to create a favorable legal environment before, during, and after legal triage through ongoing communication, planning, and amendments

27. 27 Final Thoughts For more information about these issues or the Center please contact me or visit our website at: www.publichealthlaw.net www.publichealthlaw.net For specific information regarding the Center’s VHP responses on Hurricane Katrina, see our website at: www.publichealthlaw.net/ Research/Katrina www.publichealthlaw.net/ Research/Katrina Thank you!