1 Public Health Systems Research Creating the Evidence for Policy February 8, 2006 Legal Issues Concerning Volunteer Health Professionals in Public Health

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Public Health Systems ResearchPublic Health Systems ResearchCreating the Evidence for Policy Creating the Evidence for Policy

February 8, 2006

Legal Issues Concerning Volunteer Health Professionalsin 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

The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities

CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights



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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





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Assessing the Legal Environment in Public Health Emergencies

Compacts

Cases

Policies Regulations

Statutes

Constitutions

Treaties

Types of Laws





4

Assessing the Legal Environment in Public Health Emergencies

• Laws 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

The Convergence of Governments in Public Health Emergencies

Community

City

County Tribal

State

National

International

Govern-ment





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The Convergence of Partners in Public Health Emergencies

Emergency Management

Private Industries

NGOs

Hospitals

National Security

Law Enforcement

Environment

Public Health

Partners





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The Convergence of Specific Actors in Public Health Emergencies

Military

Volunteers

HealthAdministrators

Health CareWorkers

Federal Agents

Law Enforcers

Lab Directors

Public HealthOfficials

Actors





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Legal Triage During Public Health Emergencies

Government

PartnersActors

Legal Triage in PHEs – Public health law in real-time





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State of Emergency

Once an emergency has

been declared, the legal

landscape changes.





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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





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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





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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





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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





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States That Define “Emergency”Among 30 Phase I & II ESAR-VHP States

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IOIO

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT

PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)

““Emergency” or similar termEmergency” or similar termdefined in state statutesdefined in state statutes





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States That Define “Disaster”Among 30 Phase I & II ESAR-VHP States

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IOIO

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT


““Disaster” or similar term Disaster” or similar term defined in state statutesdefined in state statutes





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States That Define “Public Health Emergency”Among 30 Phase I & II ESAR-VHP States

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IOIO

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT


““Public health emergency” Public health emergency” or similar term defined in or similar term defined in state statutesstate statutes





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States That Define “Public Health Emergency” and “Emergency” or “Disaster”Among 30 Phase I & II ESAR-VHP States

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IOIO

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT


““Emergency”, “disaster”, andEmergency”, “disaster”, and““public health emergency” (or public health emergency” (or similar terms) defined in state similar terms) defined in state statutesstatutes





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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

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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





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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?





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Civil Liability

• Who may face civil liability?

Volunteer health professionals

Health care entities supplying VHPs

Health care entities hosting VHPs





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Civil Liability

• Legal theories include:

Negligence/malpractice

Intentional torts

Privacy

Misrepresentation

Discrimination





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Civil Liability

Liability Risks to VHPs and Supplier/Host Entities





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Liability Protections

Mutual Aid Agreements

Good Samaritan

Acts

Federal VPA

State VPAs

EMACImmunities

JCAHO Standards/Policies & Practices

MOUs

Insurance Coverage

State EHPA

Civil Liability Protections





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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





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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





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Final Thoughts

• For more information about these issues or the Center please contact me or visit our website at: www.publichealthlaw.net

• For specific information regarding the Center’s VHP responses on Hurricane Katrina, see our website at: www.publichealthlaw.net/ Research/Katrina

• Thank you!





Documents

1 Public Health Systems Research Creating the Evidence for Policy February 8, 2006 Legal Issues Concerning Volunteer Health Professionals in Public Health