ARRTC – 2012 Judgment – Proofing and ContractsARRTC – 2012 Judgment – Proofing and ContractsSpring, 2012Spring, 2012

John R. Wible, J.D., General Counsel (Retired)John R. Wible, J.D., General Counsel (Retired)Alabama Department of Public HealthAlabama Department of Public Health

Extended OutlineExtended Outline

IntroductionIntroductionTUSCALOOSA, AL (RNN) – April 27, 2011. TUSCALOOSA, AL (RNN) – April 27, 2011. A horrific storm system that killed more than 300 people in seven states A horrific storm system that killed more than 300 people in seven states across the South is one of the worst the country has experienced in more across the South is one of the worst the country has experienced in more than four decades.than four decades.In the 24-hour period that ended at 8 a.m. CT Thursday, 163 tornadoes had In the 24-hour period that ended at 8 a.m. CT Thursday, 163 tornadoes had been reported by eye witnesses. One of those, a mile-wide tornado that been reported by eye witnesses. One of those, a mile-wide tornado that bisected Alabama, killed more than 200 people in that state alone, barely bisected Alabama, killed more than 200 people in that state alone, barely missing a college campus housing thousands of students, but leveling a largemissing a college campus housing thousands of students, but leveling a large swatch of town with its destruction.swatch of town with its destruction.Officials are on the ground Thursday assessing the damage and delivering Officials are on the ground Thursday assessing the damage and delivering emergency services and supplies to the victims of the storm.emergency services and supplies to the victims of the storm.

Alabama took the hardest hit by far. As of early Friday morning, CNN Alabama took the hardest hit by far. As of early Friday morning, CNN reported that 228 people in 19 counties had died in Alabama.reported that 228 people in 19 counties had died in Alabama.A state of emergency was declared by the president shortly after the storms A state of emergency was declared by the president shortly after the storms raged through.raged through.

In his statement Wednesday, Obama said he told Alabama Gov. Robert In his statement Wednesday, Obama said he told Alabama Gov. Robert Bentley, R-AL, he had ordered the federal government to move swiftly in its Bentley, R-AL, he had ordered the federal government to move swiftly in its emergency response.emergency response."I approved his request for emergency Federal assistance, including search "I approved his request for emergency Federal assistance, including search and rescue assets," Obama said.and rescue assets," Obama said.

Especially hard hit was the city of Tuscaloosa, home to the University of Especially hard hit was the city of Tuscaloosa, home to the University of Alabama.Alabama.In the college town, a mile-wide tornado killed 32 people and injured In the college town, a mile-wide tornado killed 32 people and injured hundreds, tossing boats from a store into an apartment complex, ripping hundreds, tossing boats from a store into an apartment complex, ripping holes in rooftops and destroying a swath of restaurant establishments along holes in rooftops and destroying a swath of restaurant establishments along a bustling street.a bustling street.

"I don't know how anyone survived," the Tuscaloosa Mayor Walter Maddox "I don't know how anyone survived," the Tuscaloosa Mayor Walter Maddox told CNN. "We're used to tornadoes here in Tuscaloosa. It's part of growing told CNN. "We're used to tornadoes here in Tuscaloosa. It's part of growing up. But when you look at the path of destruction that's likely 5 to 7 miles up. But when you look at the path of destruction that's likely 5 to 7 miles long in an area half a mile to a mile wide ... it's an amazing scene. There's long in an area half a mile to a mile wide ... it's an amazing scene. There's parts of the city I don't recognize, and that's someone that's lived here his parts of the city I don't recognize, and that's someone that's lived here his entire life."entire life."

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Hundreds of buildings and homes were leveled by the tornado. Overnight Hundreds of buildings and homes were leveled by the tornado. Overnight Wednesday, search and rescue personnel looked for victims who could be Wednesday, search and rescue personnel looked for victims who could be buried beneath the rubble.buried beneath the rubble.

The massive tornado left Tuscaloosa's two hospitals swirling in activity. One, The massive tornado left Tuscaloosa's two hospitals swirling in activity. One, in direct line of the storm, also suffered damage from the twister.in direct line of the storm, also suffered damage from the twister."We're estimating around 600 were treated at DCH Regional Medical "We're estimating around 600 were treated at DCH Regional Medical Center," said Brad Fisher, DCH spokesman.Center," said Brad Fisher, DCH spokesman.

Windows in several patient rooms as well as a waiting area were blown out Windows in several patient rooms as well as a waiting area were blown out there.there.Fisher said the hospital was without water for about six hours, and power Fisher said the hospital was without water for about six hours, and power was only restored in the wee hours of morning.was only restored in the wee hours of morning.

More than 100 patients per hour flooded their doors immediately after the More than 100 patients per hour flooded their doors immediately after the storm, Fisher said. The hospital admitted 92 people and reported five dead storm, Fisher said. The hospital admitted 92 people and reported five dead as of Thursday morning.as of Thursday morning."Our numbers will increase today," Fisher said. "Business in the ED is steady,"Our numbers will increase today," Fisher said. "Business in the ED is steady, so we're not done.so we're not done.

DCH DCH Could Could Have Been Hit- What If ?????Have Been Hit- What If ?????

Government Authority to Act in Emergencies: ModelGovernment Authority to Act in Emergencies: ModelAt height of emergency – authority is at its peak. Broad discretion exists At height of emergency – authority is at its peak. Broad discretion exists under both state and federal laws for the executive – including police and under both state and federal laws for the executive – including police and public health officials – to take actions deemed necessary to reduce public health officials – to take actions deemed necessary to reduce imminent threats to life, property, and public health and safety imminent threats to life, property, and public health and safety

When the crisis is brought under control – when there are no longer When the crisis is brought under control – when there are no longer imminent threats to life, property, and public health and safety requiring imminent threats to life, property, and public health and safety requiring immediate action, the scope of authority is reduced – as need to protect immediate action, the scope of authority is reduced – as need to protect other values and individual rights, resume normal roles.other values and individual rights, resume normal roles.

Further, once immediate threats to life and to public health, safety, and Further, once immediate threats to life and to public health, safety, and property are addressed, all those involved in a response will necessarily be property are addressed, all those involved in a response will necessarily be faced with the challenge of paying for the loss and damage that has been faced with the challenge of paying for the loss and damage that has been sustained. sustained. So the role of the lawyer becomes more and more important as the So the role of the lawyer becomes more and more important as the emergency moves from the crisis to the recovery phase.emergency moves from the crisis to the recovery phase.

Legal issues are still very important even at the height of a crisis – and Legal issues are still very important even at the height of a crisis – and choices made during crisis moments can have a substantial impact on how choices made during crisis moments can have a substantial impact on how losses and damages are paid for after the event. losses and damages are paid for after the event.

-The Eye of the Storm- -The Eye of the Storm- What Really Happens in a DisasterWhat Really Happens in a Disaster

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Disaster/PlanningDisaster/PlanningDisaster -Any emergency that disrupts normal community function causing Disaster -Any emergency that disrupts normal community function causing concern for the safety of its citizens. concern for the safety of its citizens.

Planning - Prime function to minimize the resulting loss of property, injuries, Planning - Prime function to minimize the resulting loss of property, injuries, suffering and death that accompanies a disaster.suffering and death that accompanies a disaster.

Goal - to minimize resulting injuries, suffering, and provide continued quality Goal - to minimize resulting injuries, suffering, and provide continued quality care to those patients in the hospitalcare to those patients in the hospital

So, what really happens?So, what really happens? How do people’s relationships change? How do people’s relationships change? Do people think and react differently?Do people think and react differently? Are the consequences the same as if you had reacted “in the Are the consequences the same as if you had reacted “in the

sunshine?”sunshine?” The “Outback Steakhouse Question,” are there really “no rules?”The “Outback Steakhouse Question,” are there really “no rules?” How can you “rank” people in order or precedence to receive vaccine, How can you “rank” people in order or precedence to receive vaccine,

ventilators or treatment according to ethical principles?ventilators or treatment according to ethical principles? Can you invoke “altered standards of care?Can you invoke “altered standards of care? What are the rights of staff to desert?What are the rights of staff to desert?

What happens in a disaster? CERT Training from FEMA tells us what we What happens in a disaster? CERT Training from FEMA tells us what we really already know. Disaster survivors normally experience a range of really already know. Disaster survivors normally experience a range of psychological and physiological reactions, the strength and type of which psychological and physiological reactions, the strength and type of which depend on several factors: prior experience with the same or a similar event;depend on several factors: prior experience with the same or a similar event; intensity of the disruption; length of time that has elapsed between the intensity of the disruption; length of time that has elapsed between the event occurrence and the present; individual feelings that there is no event occurrence and the present; individual feelings that there is no escape, which sets the stage for panic; and the emotional strength of the escape, which sets the stage for panic; and the emotional strength of the individual. Studies have shown that their reactions go through stages and individual. Studies have shown that their reactions go through stages and that their reaction to workers varies according to the stages from exuberant that their reaction to workers varies according to the stages from exuberant following of instructions to disbelief and disgruntlement.following of instructions to disbelief and disgruntlement.

Psychologically, they may be subject to certain physiological and Psychologically, they may be subject to certain physiological and physiological Symptoms including: irritability or anger; denial; loss of physiological Symptoms including: irritability or anger; denial; loss of appetite; self-blame; blaming others; mood swings; headaches; chest pain; appetite; self-blame; blaming others; mood swings; headaches; chest pain; isolation; withdrawal; diarrhea, stomach pain; nausea; fear of recurrence; isolation; withdrawal; diarrhea, stomach pain; nausea; fear of recurrence; hyperactivity; feeling stunned, numb, or overwhelmed; increase in alcohol or hyperactivity; feeling stunned, numb, or overwhelmed; increase in alcohol or drug consumption; feeling helpless; nightmares; concentration and memory drug consumption; feeling helpless; nightmares; concentration and memory problems; inability to sleep; sadness, depression, grief; fatigue and low problems; inability to sleep; sadness, depression, grief; fatigue and low energy.energy.

For our purposes, we know that disaster workers For our purposes, we know that disaster workers maymay go through many of go through many of the same symptoms leading to the conclusion that the same symptoms leading to the conclusion that in the end, they may in the end, they may become “stressed out” and may make bad choices and the wrong decisions.become “stressed out” and may make bad choices and the wrong decisions.

Effects on Victims Effects on Victims and Staffand Staff

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Psychological, physiological and physiological Symptoms: Psychological, physiological and physiological Symptoms: Irritability or anger, blaming or denial, mood swings, fear of recurrence,Irritability or anger, blaming or denial, mood swings, fear of recurrence,

hyperactivity, feeling stunned, helpless, numb, or overwhelmed; hyperactivity, feeling stunned, helpless, numb, or overwhelmed; Loss of appetite and energy, headaches, chest pain, and fatigue; Loss of appetite and energy, headaches, chest pain, and fatigue; Isolation, withdrawal, diarrhea, stomach pain, nausea;Isolation, withdrawal, diarrhea, stomach pain, nausea; Increase in alcohol or drug consumption; Increase in alcohol or drug consumption; Nightmares and inability to sleep; Nightmares and inability to sleep; Concentration and memory problems; Concentration and memory problems; Sadness, depression and grief; Sadness, depression and grief;

All leading to BAD CHOICESAll leading to BAD CHOICES

What if Power is Lost?What if Power is Lost?Also lost are:Also lost are:

Sewage / water systemsSewage / water systems Lights/Cooling and heating elements Lights/Cooling and heating elements Elevators and automatic doorsElevators and automatic doors Internal and external communicationsInternal and external communications Ability to track ID and patientsAbility to track ID and patients

Usual mechanisms for internal communications may not function, Usual mechanisms for internal communications may not function, establishing lines of communications is vital. Key staff should meet at a establishing lines of communications is vital. Key staff should meet at a designated time and location at least once daily. Establish emergency designated time and location at least once daily. Establish emergency communications area / EOC and a command structure (NIMS). Establish a communications area / EOC and a command structure (NIMS). Establish a plan to communicate information to patients and families and other facilities.plan to communicate information to patients and families and other facilities.

Other Contemplated LossesOther Contemplated Losses Food, water and utensil supplyFood, water and utensil supply Shortages of meds, disposables and DMEShortages of meds, disposables and DME

oo You should anticipate the most criticalYou should anticipate the most criticaloo Personal Hygiene / Sanitary SuppliesPersonal Hygiene / Sanitary Suppliesoo PPE neededPPE neededoo Food, meds and water w/evacueesFood, meds and water w/evacuees

Staff and Security lossesStaff and Security losses Handling waste: medical and otherHandling waste: medical and other Transportation and fuelTransportation and fuel

Identify reporting relationships in hospital's incident command structure and Identify reporting relationships in hospital's incident command structure and address staff support needs:address staff support needs:

Housing, transportation, family support needs, etc.Housing, transportation, family support needs, etc. Protocol to identify various types of licensed independent practitioners Protocol to identify various types of licensed independent practitioners In advance, compile and maintain list of staff emergency contact In advance, compile and maintain list of staff emergency contact

information and an acknowledgement of whether the individual will information and an acknowledgement of whether the individual will work during emergency events or not.work during emergency events or not.

In advance, establish and disseminate a call-in number for staff to In advance, establish and disseminate a call-in number for staff to obtain news and information from the facility. obtain news and information from the facility.

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Establish which radio and television stations will broadcast information aboutEstablish which radio and television stations will broadcast information about the facility in the event the call-in number is not working.the facility in the event the call-in number is not working.Identify how hospital will obtain and replenish medications, supplies food, Identify how hospital will obtain and replenish medications, supplies food, and water and diesel fuel.and water and diesel fuel.

Identify how hospital will share such resources with area health care Identify how hospital will share such resources with area health care providersprovidersHow hospital will transport patients, their medications, supplies, clinical How hospital will transport patients, their medications, supplies, clinical information, equipment and staff to alternate site .information, equipment and staff to alternate site .

Clarify and identify roles of community security agencies for management of Clarify and identify roles of community security agencies for management of hazardous waste and materials and provisions for radioactive, biological and hazardous waste and materials and provisions for radioactive, biological and chemical isolation and decontamination. Plan for control of personnel within chemical isolation and decontamination. Plan for control of personnel within the facility, and vehicles that access the facility during an emergency the facility, and vehicles that access the facility during an emergency

Designate individual to monitor emergency broadcasts/alerts via battery Designate individual to monitor emergency broadcasts/alerts via battery operated TV or radio.operated TV or radio.

Consider what secondary communication methods are available: Cell Consider what secondary communication methods are available: Cell phones, text, Hamphones, text, HamCommunication with vendors and essential service providers.Communication with vendors and essential service providers.

Internet – remember that even if you have power and internet connection, Internet – remember that even if you have power and internet connection, regulatory agencies may not.regulatory agencies may not.

Notifying external authorities, employees, staff, patients and families that Notifying external authorities, employees, staff, patients and families that emergency response measures have been initiated is important.emergency response measures have been initiated is important.

Communications with area health care organizations, regarding contact Communications with area health care organizations, regarding contact information, resources and assets that are available to be sharedinformation, resources and assets that are available to be shared

Communications about patient names with area health care entities and Communications about patient names with area health care entities and third partiesthird partiesState Department of Health, Police, FBI, etc. must also be maintained.State Department of Health, Police, FBI, etc. must also be maintained.

Avenues for LiabilityAvenues for Liability Federal IssuesFederal Issues Criminal IssuesCriminal Issues Administrative IssuesAdministrative Issues Civil IssuesCivil Issues

oo TortsTortsoo ContractsContracts

Federal Law Causes of ActionFederal Law Causes of Action

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1963 Civil Rights Act violations: ADA, ADEA, Section 504 of the Rehabilitation1963 Civil Rights Act violations: ADA, ADEA, Section 504 of the Rehabilitation ActActHIPAA; EMTALA; FMLA; FLSA (wage and hour); OSHA; and FDA.HIPAA; EMTALA; FMLA; FLSA (wage and hour); OSHA; and FDA.

The Centers for Medicare and Medicaid Services (CMS,) the Inspector GeneralThe Centers for Medicare and Medicaid Services (CMS,) the Inspector General of the United States Department of Health and Human Services (IG/HHS,) theof the United States Department of Health and Human Services (IG/HHS,) the Department of Justice, Medicare and Medicaid Fraud and Abuse Division Department of Justice, Medicare and Medicaid Fraud and Abuse Division (DOJ) and any other combination of alphabet-soup regulatory agencies at (DOJ) and any other combination of alphabet-soup regulatory agencies at the federal and state level when they either refuse to pay you or threaten to the federal and state level when they either refuse to pay you or threaten to investigate you for fraud. investigate you for fraud.

Affected federal laws can include: Americans with Disabilities Act, Affected federal laws can include: Americans with Disabilities Act, Rehabilitation Act of 1973, Section 504, EMTALA, HIPAA, Pure Food, Drug andRehabilitation Act of 1973, Section 504, EMTALA, HIPAA, Pure Food, Drug and Cosmetic Acts (medicines and medical devices,) the "Common Rule" Cosmetic Acts (medicines and medical devices,) the "Common Rule" involving research with human subjects, Wage and involving research with human subjects, Wage and Hour (FLSA), "80 hour a week rule for medical residents" rule, OSHA, CMS Hour (FLSA), "80 hour a week rule for medical residents" rule, OSHA, CMS reimbursement under Medicare and Medicaid and the Stafford Act - to namereimbursement under Medicare and Medicaid and the Stafford Act - to name a few. a few.

HIPAA as amended by HITEC, a part of AARA, in the Stimulus HIPAA as amended by HITEC, a part of AARA, in the Stimulus package of 2009package of 2009

The “Golden Rule of Documentation:” If it ain’t wrote down it didn’t happen! The “Golden Rule of Documentation:” If it ain’t wrote down it didn’t happen! The way it is wrote down is the way it happened regardless of the way it The way it is wrote down is the way it happened regardless of the way it happened! happened!

Confidentiality- Access to RecordsConfidentiality- Access to RecordsGeneral rule – (Privacy Rule) All patient information is strictly confidential. General rule – (Privacy Rule) All patient information is strictly confidential. You must maintain patient information confidential outside the necessary You must maintain patient information confidential outside the necessary situation. However – exceptions in emergency situations- 45 CFR 164.512 – situation. However – exceptions in emergency situations- 45 CFR 164.512 – emergency personnel and law enforcement.emergency personnel and law enforcement.

Imperatives for Protecting PHIImperatives for Protecting PHI

Improvements in health care and community health require responsible Improvements in health care and community health require responsible sharing of sharing of somesome PHI. In the absence of privacy protections, patients and PHI. In the absence of privacy protections, patients and others may avoid some clinical, public health and research interventions to others may avoid some clinical, public health and research interventions to their detriment. Individual privacy protections must balance with legitimate their detriment. Individual privacy protections must balance with legitimate community uses of PHI, i.e., health research and public health.community uses of PHI, i.e., health research and public health.

Methods to Avoid Liability – DCH suggestionsMethods to Avoid Liability – DCH suggestions Have only one or two voices to media and the public, IE., thousands of Have only one or two voices to media and the public, IE., thousands of

callscalls Train employees to route pts. to triage regardless of ingressTrain employees to route pts. to triage regardless of ingress

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Use AIMS system or your own system for pt. tracking (names only) Use AIMS system or your own system for pt. tracking (names only) external to your EMR tied to central clearing houseexternal to your EMR tied to central clearing house

Follow up pts later with your EMRFollow up pts later with your EMR Avoid inappropriate behaviorsAvoid inappropriate behaviors Participate in QA/QI and Con-Ed programsParticipate in QA/QI and Con-Ed programs Know and follow policies , protocols, procedures, laws and regulationsKnow and follow policies , protocols, procedures, laws and regulations Strictly adhere to training protocolsStrictly adhere to training protocols Strictly follow instructions of medical direction and superiorsStrictly follow instructions of medical direction and superiors Train employees to funnel all pts. To a single or one of specified triage Train employees to funnel all pts. To a single or one of specified triage

sitessites Use AIMS system or your own system for pt. tracking (names only) Use AIMS system or your own system for pt. tracking (names only)

external to your EMR tied to central clearing house. Follow up pts later external to your EMR tied to central clearing house. Follow up pts later with your EMR.with your EMR.

oo It only IDs pt. and tells status. No PHI to inadvertently releaseIt only IDs pt. and tells status. No PHI to inadvertently releaseoo Hospital spokes person or receptions on phone have access to Hospital spokes person or receptions on phone have access to

this system and can locate pts. For press and family members this system and can locate pts. For press and family members w/o giving PHI.w/o giving PHI.

oo Technically, even the name of the patients is PHI, but that’s Technically, even the name of the patients is PHI, but that’s minor.minor.

oo Have only one or two voices to media and the public, IE., Have only one or two voices to media and the public, IE., thousands of callsthousands of calls

Train employees to route pts. to triage regardless of ingressTrain employees to route pts. to triage regardless of ingress Document, document, documentDocument, document, document

Disaster Applicability - DHHS Says:Disaster Applicability - DHHS Says:Responding agencies will need to get PHI to respond to emergenciesResponding agencies will need to get PHI to respond to emergenciesTherefore a covered entity can disclose PHI to emergency authorities in such Therefore a covered entity can disclose PHI to emergency authorities in such an event.an event.Attempt to have prepared systems that minimize non-emergency disclosuresAttempt to have prepared systems that minimize non-emergency disclosuresSee 45 CFR 164.512(b) public health activitiesSee 45 CFR 164.512(b) public health activities

EMTALA - EMTALA - Section 1867, Social Security ActSection 1867, Social Security Act Must triage and stabilize then treat or transferMust triage and stabilize then treat or transfer What if you are in a disaster?What if you are in a disaster?

oo DHC found the Statewide Trauma System to be very helpfulDHC found the Statewide Trauma System to be very helpfuloo Plan to set up emergency triage sub-stationsPlan to set up emergency triage sub-stationsoo Have transfer agreements – where and howHave transfer agreements – where and how

Ambulances – is there prohibitive (exclusive) ordinance?Ambulances – is there prohibitive (exclusive) ordinance? ADPH bus kitsADPH bus kits

If in a true disaster, unlikely HHS will pursueIf in a true disaster, unlikely HHS will pursue

Evacuation Plan – Have One - And Stick to ItEvacuation Plan – Have One - And Stick to It Does it violate EMTALA?Does it violate EMTALA? Plan w/ other facilities to take pts.Plan w/ other facilities to take pts.

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Plan w/city, county and schools to use vehicles and (importantly) Plan w/city, county and schools to use vehicles and (importantly) driversdrivers

oo N.O. didn’t evacuate in part because though they had busses, N.O. didn’t evacuate in part because though they had busses, they didn’t have drivers who had desertedthey didn’t have drivers who had deserted

Tenet-Memorial Hospital (N.O) settled suit involving evacuation planTenet-Memorial Hospital (N.O) settled suit involving evacuation plan

OSHA in a Disaster – Plan!OSHA in a Disaster – Plan! Have pre-emergency drills implementing plan, using plan & ICS SystemHave pre-emergency drills implementing plan, using plan & ICS System Establish lines of authority and communication between incident site Establish lines of authority and communication between incident site

and hospital personnel. and hospital personnel. Designate disaster team including ED MDs, nurses, aides and supp. Designate disaster team including ED MDs, nurses, aides and supp.

pers. w/PPEpers. w/PPE Designate alternate sites Designate alternate sites Post-emergency critique of the hospital's emergency response – OSHA Post-emergency critique of the hospital's emergency response – OSHA

Pub. 3152 (1997)Pub. 3152 (1997)

Fair Labor Standards ActFair Labor Standards Act Plan should include use of reserves and time off where possiblePlan should include use of reserves and time off where possible Time off may be given later orTime off may be given later or Overtime pay required for non-exempt employeesOvertime pay required for non-exempt employees If you have a Gov.’s Proclamation, a Stafford Act declaration and are If you have a Gov.’s Proclamation, a Stafford Act declaration and are

executing your approved disaster plan, it is executing your approved disaster plan, it is possiblepossible that you that you may may be be designated a state entity and eligible for 80% reimbursementdesignated a state entity and eligible for 80% reimbursement

Pure Food, Drug & Cosmetic ActPure Food, Drug & Cosmetic ActBe careful about transferring legend drugs to unlicensed aid stations w/o Be careful about transferring legend drugs to unlicensed aid stations w/o pharmacy or pharmacist. Plan a work around of this. Work with city to have pharmacy or pharmacist. Plan a work around of this. Work with city to have pre-established aid stations w/pharmacist coverage. Pharmacists can be pre-established aid stations w/pharmacist coverage. Pharmacists can be obtained and dispatched through ADPH volunteer network.obtained and dispatched through ADPH volunteer network.

Licensure Issues – Bed CapacityLicensure Issues – Bed CapacityCode of Ala.1975Code of Ala.1975 Chapter 21 of Title 22 requires you to be designated with Chapter 21 of Title 22 requires you to be designated with maximum bed capacity. This may be exceeded in emergency by contacting maximum bed capacity. This may be exceeded in emergency by contacting ADPH Bureau of Health Provider Standards for a temporary waiver. Probably ADPH Bureau of Health Provider Standards for a temporary waiver. Probably can be done through AIMScan be done through AIMSThis will This will notnot be your biggest problem. be your biggest problem.

The Joint Commission (TJC)The Joint Commission (TJC)On Nov. 24, 2008, TJC imposed requirements related to emergency On Nov. 24, 2008, TJC imposed requirements related to emergency managementmanagementThe hospital has Emergency Operations Plan. The hospital engages in The hospital has Emergency Operations Plan. The hospital engages in planning activities prior to developing its written EOP. The hospital prepares planning activities prior to developing its written EOP. The hospital prepares for how it will: communicate, manage resources, provide security, staff, and for how it will: communicate, manage resources, provide security, staff, and grant privileges to other practitioners during emergencies. grant privileges to other practitioners during emergencies.

Criminal ComplaintsCriminal Complaints

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TrespassTrespass Assaults and BatteriesAssaults and Batteries Theft of property Theft of property ConversionConversion Offenses involving sexual misconductOffenses involving sexual misconduct

Civil Liability, Lawsuits, Defenses and Immunities - TortsCivil Liability, Lawsuits, Defenses and Immunities - Torts An actionable wrong under the lawAn actionable wrong under the law

oo Negligent tortsNegligent tortsoo Intentional tortsIntentional tortsoo Strict liability -Probably not a concern hereStrict liability -Probably not a concern here

Recoverable in a civil action against youRecoverable in a civil action against you Filed in Circuit CourtFiled in Circuit Court The plaintiff wants money damagesThe plaintiff wants money damages

Types of TortsTypes of Torts Malpractice and professional liabilityMalpractice and professional liability General tort liability – negligence for an act or omissionGeneral tort liability – negligence for an act or omission

oo Economic lossEconomic lossoo Non-economic lossNon-economic loss

Gross neg., wanton misconduct, bad faithGross neg., wanton misconduct, bad faith Vicarious liability and Respondeat superiorVicarious liability and Respondeat superior Negligent recruitment/training/supervisionNegligent recruitment/training/supervision Premises Liability (slip and fall, glass in beans)Premises Liability (slip and fall, glass in beans)

NegligenceNegligenceThe failure to act or perform in a particular situation as any other reasonable The failure to act or perform in a particular situation as any other reasonable prudent dispatcher with similar training would act under the same or similar prudent dispatcher with similar training would act under the same or similar circumstances.circumstances.

Negligence is defined using different words in different states. It is generally Negligence is defined using different words in different states. It is generally defined in the state’s case law rather than in statutory law. But however it is defined in the state’s case law rather than in statutory law. But however it is defined, negligence comes down to a failure to use reasonable care under defined, negligence comes down to a failure to use reasonable care under the circumstances, or to act as a reasonable person would under the same the circumstances, or to act as a reasonable person would under the same circumstances. The operative word is “reasonable.” circumstances. The operative word is “reasonable.”

The standard is essentially the same for professionals. The difference is that The standard is essentially the same for professionals. The difference is that the “reasonable person” that a professional is compared to is another the “reasonable person” that a professional is compared to is another professional with similar background and expertise.professional with similar background and expertise.

In both professional and general liability claims, bad results alone are not In both professional and general liability claims, bad results alone are not enough to support a claim for negligence. There must also be a lack of enough to support a claim for negligence. There must also be a lack of reasonable care. reasonable care. The elements of a negligence claim are also a matter of state common law. The elements of a negligence claim are also a matter of state common law.

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They are fairly similar among the states, but there may be some differences They are fairly similar among the states, but there may be some differences so you need to be familiar with your state’s law. Basically they come down so you need to be familiar with your state’s law. Basically they come down to a duty to use due care under the circumstances, breach of that duty, and to a duty to use due care under the circumstances, breach of that duty, and resulting damages.resulting damages.The universe of activities that can expose a program as diverse as a MRC to The universe of activities that can expose a program as diverse as a MRC to a negligence claim is limited only by the imagination of very creative a negligence claim is limited only by the imagination of very creative plaintiff’s attorneys. plaintiff’s attorneys.

Two important sources of liability exposure for a MRC would be: Two important sources of liability exposure for a MRC would be: •• The operation of motor vehicles to transport people or supplies The operation of motor vehicles to transport people or supplies •• The hospital’s inadequate internal procedures for selecting, assigning The hospital’s inadequate internal procedures for selecting, assigning

and monitoring employees. and monitoring employees. The consequences of negligent acts that result in damage will generally be The consequences of negligent acts that result in damage will generally be injury or property damage. injury or property damage.

Compensatory damages are the remedy normally awarded by a court to the Compensatory damages are the remedy normally awarded by a court to the injured party. Punitive damages may also be awarded if the defendant’s injured party. Punitive damages may also be awarded if the defendant’s negligence exceeds “normal” negligence according to the state’s specific negligence exceeds “normal” negligence according to the state’s specific requirements.requirements.

Negligent torts arise from the failure to use reasonable care under the Negligent torts arise from the failure to use reasonable care under the circumstances, causing recoverable damages. The “reasonable man” test” iscircumstances, causing recoverable damages. The “reasonable man” test” is applied. Bad results aren’t enough . Professional liability – failure to use the applied. Bad results aren’t enough . Professional liability – failure to use the degree of skill and care expected of a person in the professiondegree of skill and care expected of a person in the profession

Negligent Torts ExaminedNegligent Torts ExaminedNegligent torts arise from the failure to use reasonable care under the Negligent torts arise from the failure to use reasonable care under the circumstances, causing recoverable damages. The “reasonable man” test” iscircumstances, causing recoverable damages. The “reasonable man” test” is applied. Bad results aren’t enough.applied. Bad results aren’t enough.

Professional liability – failure to use the degree of skill and care expected of aProfessional liability – failure to use the degree of skill and care expected of a person in the profession.person in the profession.

Proving NegligenceProving Negligence “Intent to cause harm” is not required“Intent to cause harm” is not required Four things are required to be provedFour things are required to be proved

oo DutyDutyoo Breach of the dutyBreach of the dutyoo Injury or damageInjury or damageoo Proximate causeProximate cause

““Punnies” Award for:Punnies” Award for:Gross negligence - reckless disregard of the consequences to the safety or Gross negligence - reckless disregard of the consequences to the safety or property of another or willful acts - intentional, conscious and directed property of another or willful acts - intentional, conscious and directed toward achieving a purpose toward achieving a purpose

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Wanton acts - grossly negligent to the extent of being recklessly Wanton acts - grossly negligent to the extent of being recklessly unconcerned with the safety of people or property unconcerned with the safety of people or property

Reckless behavior–similar to gross negligenceReckless behavior–similar to gross negligence

Punitive damages are awarded for wrongful acts that are so severe that the Punitive damages are awarded for wrongful acts that are so severe that the law imposes additional civil damages as a deterrent. Punitive damages are law imposes additional civil damages as a deterrent. Punitive damages are awarded in addition to compensatory damages, and are not related to the awarded in addition to compensatory damages, and are not related to the injured party’s injured party’s actual losses. actual losses.

To recover punitive damages, the injured party generally must claim gross To recover punitive damages, the injured party generally must claim gross negligence, willful or wanton acts, or reckless behavior, depending on the negligence, willful or wanton acts, or reckless behavior, depending on the requirements of the state’s law. requirements of the state’s law.

It is important to know what these terms mean because the federal It is important to know what these terms mean because the federal Volunteer Protection Act, as well as many state volunteer protection acts, do Volunteer Protection Act, as well as many state volunteer protection acts, do not protect volunteers against wrongful acts that rise to this level. It is not protect volunteers against wrongful acts that rise to this level. It is understandable thatunderstandable thatlegislatures do not want to exempt volunteers from responsibility for this legislatures do not want to exempt volunteers from responsibility for this level of wrongful act. But at the same time, this exemption opens a big door level of wrongful act. But at the same time, this exemption opens a big door in thein theprotection awarded hospitals.protection awarded hospitals.

Exceeding the Scope of PracticeExceeding the Scope of PracticeAnother important liability concept for professional Another important liability concept for professional Professional’s is scope of practice. One general definition of Scope of Professional’s is scope of practice. One general definition of Scope of practice is on this slide: “The range of professional activities that a licensed practice is on this slide: “The range of professional activities that a licensed professional is permitted to perform under a state licensing statute, further professional is permitted to perform under a state licensing statute, further defined by the professional’s experience defined by the professional’s experience and training.”and training.”

So there are two sets of constraints on any professional’s scope of practice: So there are two sets of constraints on any professional’s scope of practice: the licensing statute and the professional’s own demonstrated abilities. the licensing statute and the professional’s own demonstrated abilities. Some states are more specific than others, so it certainly pays to know what Some states are more specific than others, so it certainly pays to know what your state statute says. your state statute says.

Standard of CareStandard of CareEstablishing – can be set by statute or by governmental rule or by the courtEstablishing – can be set by statute or by governmental rule or by the courtMeasures of determining the standardMeasures of determining the standard

Behavior is compared with others with similar training and experienceBehavior is compared with others with similar training and experience Compared w/ locally accepted standardsCompared w/ locally accepted standards Compared to statutes or administrative rulesCompared to statutes or administrative rules Compared with professional standards published nationallyCompared with professional standards published nationally

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I have a plan to alter the std. in emergency. Involves the Governor’s I have a plan to alter the std. in emergency. Involves the Governor’s proclamation of a state of disaster and the adoption of your hospital disaster proclamation of a state of disaster and the adoption of your hospital disaster plan.plan.

Breach of the Standard of CareBreach of the Standard of CareAnother important liability concept is professional standard of care, which is Another important liability concept is professional standard of care, which is basically just the “reasonable person” negligence standard modified for a basically just the “reasonable person” negligence standard modified for a professional services environment . Standard liability issues center around professional services environment . Standard liability issues center around whether the hospital and its professionals have maintained the “standard of whether the hospital and its professionals have maintained the “standard of care.” See care.” See Code of Ala.1975Code of Ala.1975 §6-5-548 . See also §6-5-548 . See also Humana Medical CorporationHumana Medical Corporation v. Traffanstedtv. Traffanstedt, 597 So., 597 So.  2d 667 (Ala. 19922d 667 (Ala. 1992

Malpractice:Malpractice: professional misconduct or demonstration of an unreasonable professional misconduct or demonstration of an unreasonable lack of skill with the result of injury, loss, or damage to the patient. lack of skill with the result of injury, loss, or damage to the patient.

Med-MalMed-Mal is subject to a special statute. See is subject to a special statute. See Code of Ala. 1975Code of Ala. 1975 §§ 6-5-480, §§ 6-5-480, et seq. et seq. and and Code of Ala. 1975Code of Ala. 1975 §§ §§  6-2-38 and 6-5-410. Hospitals are covered 6-2-38 and 6-5-410. Hospitals are covered as well.as well.

Corporate or Group LiabilityCorporate or Group Liability Corporate NegligenceCorporate Negligence Vicarious liability/Respondeat superiorVicarious liability/Respondeat superior Negligent recruitment/training /supervisionNegligent recruitment/training /supervision Premises liabilityPremises liability

Premises Liability–“Shelterees”Premises Liability–“Shelterees” Plan for “sheltrees” – uninjured persons from neighborhood or brought Plan for “sheltrees” – uninjured persons from neighborhood or brought

by LEby LE Some unattended pediatrics, some geriatric w/attendant & inherent Some unattended pediatrics, some geriatric w/attendant & inherent

problemsproblems Plan for minimum of 8 hours until ARC can open shelters, then plan for Plan for minimum of 8 hours until ARC can open shelters, then plan for

transport theretransport there Plan for sheteree animals , bites & ETC.Plan for sheteree animals , bites & ETC. Prevent thefts – get supp. lights and securityPrevent thefts – get supp. lights and security

Negligent Hiring, Training, Supervision or RetentionNegligent Hiring, Training, Supervision or RetentionAn employer can also be responsible for the acts of employees on grounds ofAn employer can also be responsible for the acts of employees on grounds of negligent hiring, supervision or retention. This is direct liability – the negligent hiring, supervision or retention. This is direct liability – the “employer” is liable for its own failure to use due care in the employment “employer” is liable for its own failure to use due care in the employment process. It basically holds the employer responsible for negligently placing process. It basically holds the employer responsible for negligently placing an Employee in a position to do harm to others.an Employee in a position to do harm to others.

Direct liability of an employer for acts or omissions of employees based on Direct liability of an employer for acts or omissions of employees based on the employer’s failure to use reasonable care in: the employer’s failure to use reasonable care in:

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Selecting workersSelecting workers Training themTraining them Supervising their work, and Supervising their work, and Terminating their services when necessaryTerminating their services when necessary “No good deed goes unpunished”“No good deed goes unpunished”

The “slack” you give your employee may be the rope that hangs you.The “slack” you give your employee may be the rope that hangs you.

Respondeat SuperiorRespondeat SuperiorThe master is responsible for the acts or omissions of his/her servant The master is responsible for the acts or omissions of his/her servant committed “within the scope and line of duty” when not on a “frolic and committed “within the scope and line of duty” when not on a “frolic and detour.” The hospital is responsible for the acts of personnel in the line of detour.” The hospital is responsible for the acts of personnel in the line of duty, though not “independent contractors.” Doctor is responsible for the duty, though not “independent contractors.” Doctor is responsible for the nurse under his/her control.nurse under his/her control.

Failure to Plan - Failure to Plan - Three possibilities for negligence liability:Three possibilities for negligence liability: Absence of a plan, Inadequate plan, Failure to follow plan.Absence of a plan, Inadequate plan, Failure to follow plan. Reasonable care: probability of an event, gravity of potential injury, Reasonable care: probability of an event, gravity of potential injury,

and burden in adequate precaution –: probability of an event, gravity and burden in adequate precaution –: probability of an event, gravity of potential injury, and burden in adequate precaution – See of potential injury, and burden in adequate precaution – See Lacoste v. Lacoste v. Pendleton Methodist HospitalPendleton Methodist Hospital. Supreme Court of Louisiana. 2006. Supreme Court of Louisiana. 2006

Punitive Damages – wanton and willful misconductPunitive Damages – wanton and willful misconductFailure to Plan: I would submit that the standard is already set and duty to Failure to Plan: I would submit that the standard is already set and duty to plan is established.plan is established.Planning required by Joint CommissionPlanning required by Joint Commission

Planning required by NIMSPlanning required by NIMS Planning encouraged and facilitated by ADPHPlanning encouraged and facilitated by ADPH Plan a part of the State EOP and invoked by order of the Governor in anPlan a part of the State EOP and invoked by order of the Governor in an

event.event.Judgment Proofing and defensesJudgment Proofing and defenses

There is always some who will want to sue you, and always a lawyer who willThere is always some who will want to sue you, and always a lawyer who will take the case. So, there’s no such thing as being “law-suit proof,” rather, we take the case. So, there’s no such thing as being “law-suit proof,” rather, we speak in terms of “judgment proofspeak in terms of “judgment proof

Two Very Important Ques.Two Very Important Ques. Can you make the hard calls?Can you make the hard calls? How much risk are you willing to plan to take? Don’t be deciding in the How much risk are you willing to plan to take? Don’t be deciding in the

middle of the disaster, think it out beforehand with advice from middle of the disaster, think it out beforehand with advice from insurance agent and lawyer.insurance agent and lawyer.

Making Hard Calls - PrinciplesMaking Hard Calls - Principles"To Tell the Truth, the Whole truth and nothing but the Truth""To Tell the Truth, the Whole truth and nothing but the Truth" -We -We must first study and learn the absolute truths and never vary from them. If must first study and learn the absolute truths and never vary from them. If we devote our total allegiance to the truth, we will be free to make ethical we devote our total allegiance to the truth, we will be free to make ethical decisions without fear of making a mistake, (not without making mistakes, decisions without fear of making a mistake, (not without making mistakes,

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but without but without fearfear of making mistakes) and without fear of the consequences of making mistakes) and without fear of the consequences because, if we have followed the truth, because, if we have followed the truth, wewe are not responsible for the are not responsible for the consequences, the consequences, the truthtruth is responsible for the consequences. It is when we is responsible for the consequences. It is when we do not follow the truth, that we transfer the responsibility for failure to do not follow the truth, that we transfer the responsibility for failure to ourselves. ourselves.

“There is absolute truth. In the planning process, there are certain rules, “There is absolute truth. In the planning process, there are certain rules, facts and principles that will have to be applied. It is your duty to know thesefacts and principles that will have to be applied. It is your duty to know these “truths..” before you start planning.“truths..” before you start planning.

•• The "No Delta Principle"- The "No Delta Principle"- Ethical principles do not change no matterEthical principles do not change no matter the situation, only the application of them. Moral Relativism is a myth.the situation, only the application of them. Moral Relativism is a myth.

•• ““Free at last, free at last!” Free at last, free at last!” You will know the truth and the truth You will know the truth and the truth shall make you free. shall make you free.

•• ““The Principle of the Plumbline"The Principle of the Plumbline" - In the storm, we make our - In the storm, we make our decisions by applying the plumb line and level of the truth. decisions by applying the plumb line and level of the truth.

••"We'll Sing in the Sunshine"-"We'll Sing in the Sunshine"- To the extent practicable, we pre-plan To the extent practicable, we pre-plan disaster decisions in the sunshine. disaster decisions in the sunshine.

““Casper the Friendly Ghost,”Casper the Friendly Ghost,” – Transparency and accountability are – Transparency and accountability are twins.twins. “You’re a pane“You’re a pane” -” -Transparency - To the extent possible, decisions should Transparency - To the extent possible, decisions should be made not only in the sunshine temporally, by also visually and be made not only in the sunshine temporally, by also visually and influentially as well. influentially as well.

•• ““No Accountability Vacuum.”No Accountability Vacuum.” No matter how well intentioned we No matter how well intentioned we start out, if there is an accountability vacuum, we are strongly temptedstart out, if there is an accountability vacuum, we are strongly tempted to cut corners.to cut corners.

•• "It's Not About Me.""It's Not About Me." We need to adopt the idea that life is not about We need to adopt the idea that life is not about me. That frees us from worrying about ourselves and frees us to make me. That frees us from worrying about ourselves and frees us to make these plumb and square decisions.these plumb and square decisions.

““The Nike Principle The Nike Principle – We are all familiar with Nike’s famous slogan, “– We are all familiar with Nike’s famous slogan, “Just Just Do It.” Just do it NOW.Do It.” Just do it NOW. Resist the urge to procrastinate. Resist the urge to procrastinate.

•• Focus, please Focus, please -- The danger with “just doing it, is that one can The danger with “just doing it, is that one can become like a charging rhinoceros. become like a charging rhinoceros.

•• Truth or Consequences Truth or Consequences Everything we do has consequences. We Everything we do has consequences. We must be aware of that fact and must be aware of the “Law of must be aware of that fact and must be aware of the “Law of Unintended Consequences.” Unintended Consequences.” [[However, perhaps the greater danger for However, perhaps the greater danger for the government planner is not that he or she doesn’t think through thethe government planner is not that he or she doesn’t think through the possible consequences, but rather that he so possible consequences, but rather that he so over thinksover thinks the the consequences that he is paralyzed in the decision-making process. consequences that he is paralyzed in the decision-making process. Hence, back to the main bullet – Hence, back to the main bullet – Just Do It!Just Do It!

Planning -“Bryant’s Rule” - Patton’s CorollaryPlanning -“Bryant’s Rule” - Patton’s CorollaryHave a Plan, work your Plan, plan for the Unexpected. Plans must be simple Have a Plan, work your Plan, plan for the Unexpected. Plans must be simple and flexible, made by the people who are going to execute them.and flexible, made by the people who are going to execute them.

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Plan “Beyond Your Wildest Dreams”Plan “Beyond Your Wildest Dreams” Plan must be beyond your “wildest dreams.”Plan must be beyond your “wildest dreams.”

oo -Janet Teer, General Counsel DCH System-Janet Teer, General Counsel DCH System Expand your concept of “disaster,” not 10-100 pts in ED but 800-1500 Expand your concept of “disaster,” not 10-100 pts in ED but 800-1500

anywhereanywhere Get a team on the planning process w/deadlinesGet a team on the planning process w/deadlines Plan in accord with TJCPlan in accord with TJC Approved by local EMA and ADPHApproved by local EMA and ADPH

Triage Planning - Triage Planning - Whatever method is decided upon, may I offer several Whatever method is decided upon, may I offer several points: points:

It needs to be decided It needs to be decided nownow. Have a plan . Have a plan now. now. It is a moral failure to put off It is a moral failure to put off such a momentous decision until there is no time to reach a such a momentous decision until there is no time to reach a good good decision. decision. University of Pittsburgh’s Professor Tabery urges the use of a University of Pittsburgh’s Professor Tabery urges the use of a Triage Review Triage Review BoardBoard including an administrator, physicians, nurses, clergy, ethicists, and including an administrator, physicians, nurses, clergy, ethicists, and community persons at large to oversee the use of triage on a very frequent community persons at large to oversee the use of triage on a very frequent basis for practical as well as ethical reasons including the need to “engage basis for practical as well as ethical reasons including the need to “engage the public” at pre, during and post stages of the pandemic or disaster. At the public” at pre, during and post stages of the pandemic or disaster. At this pointing the debate, the method this pointing the debate, the method to be usedto be used, if not , if not agreed uponagreed upon (and that (and that is entirely possible that it will not be agreed upon,) it should at least be is entirely possible that it will not be agreed upon,) it should at least be formulated with wide input.formulated with wide input.

Professor Tabery’s thoughts do have much to lend themselves to the Professor Tabery’s thoughts do have much to lend themselves to the utilitarian. He states that a good plan needs a Triage Officer – the initial utilitarian. He states that a good plan needs a Triage Officer – the initial person making these life and death decisions, needs to be a senior and well-person making these life and death decisions, needs to be a senior and well-trained individual, not a neophyte. trained individual, not a neophyte.

Triage is not simple, it requires great skill, a certain “seasoned hardness” Triage is not simple, it requires great skill, a certain “seasoned hardness” and perseverance. It should be constantly reviewed during the and perseverance. It should be constantly reviewed during the implementation phase. The triage officer should be debriefed periodically by implementation phase. The triage officer should be debriefed periodically by superiors and the whole process looked at on an on-going basis by the Triagesuperiors and the whole process looked at on an on-going basis by the Triage Review Board.Review Board.

Modern Disaster TriageModern Disaster TriageProfessor James Tabery states of the ethics of triage in disaster situations Professor James Tabery states of the ethics of triage in disaster situations that there has been or is in the process of becoming switch from standard that there has been or is in the process of becoming switch from standard medical ethics with the primary focus on medical ethics with the primary focus on individual autonomyindividual autonomy to an ethics of to an ethics of public health with a primary focus on the public health with a primary focus on the health of the communityhealth of the community, with the , with the overarching goal being to overarching goal being to minimize morbidity and mortality during the minimize morbidity and mortality during the pandemic.pandemic. Professor Tabery then takes the Bentham/Kant debate into the Professor Tabery then takes the Bentham/Kant debate into the 2121stst Century in looking at models for triage: Century in looking at models for triage: Utilitarian v. Egalitarian.Utilitarian v. Egalitarian. In other In other words, given scarce resources, do the workers address the needs from the words, given scarce resources, do the workers address the needs from the basis of for whom they can do the basis of for whom they can do the most goodmost good, or to those who are in , or to those who are in greatestgreatest needneed? ?

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Specific Template for Disaster Planning-Vent. Triage ESF 8Specific Template for Disaster Planning-Vent. Triage ESF 8ADPH develops a template for disaster planning and resource allocation, the ADPH develops a template for disaster planning and resource allocation, the Ventilator Triage. We recommend you adopt it as your plan. It may give stateVentilator Triage. We recommend you adopt it as your plan. It may give state agency immunity. See http://www.adph.org/CEP/assets/VENTTRIAGE.pdfagency immunity. See http://www.adph.org/CEP/assets/VENTTRIAGE.pdf

Statute of LimitationsStatute of LimitationsSet time period for injured party to file lawsuitSet time period for injured party to file lawsuitTortsTorts -Generally 2 years -Generally 2 years

Includes wrongful death, PI, and A & BIncludes wrongful death, PI, and A & BTrespass – 6 yearsTrespass – 6 years

ContractsContracts – Generally 6 years – Generally 6 yearsCould include personal injury under contractCould include personal injury under contractSee more laterSee more later

S/L – S/L – Med Mal more or less 4 years.Med Mal more or less 4 years. All actions against health care providers All actions against health care providers must be commenced within two years after the act or omission giving rise to must be commenced within two years after the act or omission giving rise to the claim; provided, that if the cause of action is not discovered and could the claim; provided, that if the cause of action is not discovered and could not reasonably have been discovered within the two-year period, then the not reasonably have been discovered within the two-year period, then the action may be commenced within six months from the date of such action may be commenced within six months from the date of such discovery or the date of learning of facts that would reasonably lead to such discovery or the date of learning of facts that would reasonably lead to such discovery, whichever is earlier. Ala. Code §discovery, whichever is earlier. Ala. Code §  6-5-482 (1993). 6-5-482 (1993).

Although this statute of limitations is subject to tolling for minority or Although this statute of limitations is subject to tolling for minority or disability, in no event may an action be brought more than four years after disability, in no event may an action be brought more than four years after the act or omission, except that a minor who is under the age of four at the the act or omission, except that a minor who is under the age of four at the time of the act or omission accrues has until his eighth birthday to time of the act or omission accrues has until his eighth birthday to commence an action. commence an action. IdId. The constitutionality of the statute has been . The constitutionality of the statute has been upheld. upheld. Barlow v. Humana, Inc.Barlow v. Humana, Inc., 495 So., 495 So.  2d 1048 (Ala. 1986). A wrongful 2d 1048 (Ala. 1986). A wrongful death action must be brought within two years after the decedent's death. death action must be brought within two years after the decedent's death. Ala. Code §§Ala. Code §§  6-2-38 and 6-5-410 (1993). 6-2-38 and 6-5-410 (1993).

This "statute of creation" is not subject to any tolling provisions and applies This "statute of creation" is not subject to any tolling provisions and applies in wrongful death cases even if the cause of death is medical malpractice. in wrongful death cases even if the cause of death is medical malpractice. Cofer v. EnsorCofer v. Ensor, 473 So., 473 So.  2d 984 (Ala. 1985); 2d 984 (Ala. 1985); McMickens v. WaldorpMcMickens v. Waldorp, 406 , 406 So.So.  2d 867 (Ala. 1981)2d 867 (Ala. 1981)

Expert TestimonyExpert Testimony - "In medical malpractice cases, the plaintiff must prove - "In medical malpractice cases, the plaintiff must prove negligence through the use of expert testimony, unless an understanding of negligence through the use of expert testimony, unless an understanding of the doctor's alleged lack of due care or skill requires only common the doctor's alleged lack of due care or skill requires only common knowledge or experience.“ knowledge or experience.“ Monk v. VeselyMonk v. Vesely, 525 So., 525 So.  2d 1364, 1365 (Ala. 2d 1364, 1365 (Ala. 1988). The exception applies only to such situations as a foreign object left 1988). The exception applies only to such situations as a foreign object left after surgery or an injury remote from the part of the body being treated. after surgery or an injury remote from the part of the body being treated. Dews v. Mobile Infirmary Ass'nDews v. Mobile Infirmary Ass'n, 659 So., 659 So.  2d 61 (Ala. 1995). A health care 2d 61 (Ala. 1995). A health care provider may testify as an expert witness in any action against another provider may testify as an expert witness in any action against another

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health care provider based on a breach of the standard of care only if he or health care provider based on a breach of the standard of care only if he or she is "similarly situated," as defined by statute. Ala. Code §she is "similarly situated," as defined by statute. Ala. Code §  6-5-548 (Supp. 6-5-548 (Supp. 1997). 1997).

This means, in part, that expert witnesses against a physician accused of This means, in part, that expert witnesses against a physician accused of negligence must be certified in the same specialty and must have practiced negligence must be certified in the same specialty and must have practiced within the previous year. within the previous year. Id.Id.; ; Malcolm v. KingMalcolm v. King, 686 So., 686 So.  2d 231 (Ala.1996).2d 231 (Ala.1996).

Damage Caps for HCAsDamage Caps for HCAsCode of Ala.1975Code of Ala.1975 § 22-21-318(2) caps damages against a “health care § 22-21-318(2) caps damages against a “health care authority” at $100,000. This does not apply to a for-profit hospital nor does itauthority” at $100,000. This does not apply to a for-profit hospital nor does it apply to a purely county or municipal owned hospital.apply to a purely county or municipal owned hospital.

Malpractice InsuranceMalpractice Insurance Covers any [costs & damages the physician/ employer/ employee mustCovers any [costs & damages the physician/ employer/ employee must

pay if (s)he sued for malpractice and loses [to policy limits]pay if (s)he sued for malpractice and loses [to policy limits] All licensed and certified medical professionals should carry All licensed and certified medical professionals should carry

malpractice insurance or have hospital providedmalpractice insurance or have hospital provided Can be an expensive type of insurance for some disciplines Can be an expensive type of insurance for some disciplines MDs can be thousands or even tens of thousandsMDs can be thousands or even tens of thousands EMTs around $200 per year through NAEMTEMTs around $200 per year through NAEMT Nurses around $200 - $400 depending on coverageNurses around $200 - $400 depending on coverage Hospital carries general liability and D & OHospital carries general liability and D & O

Types of Med-Mal InsuranceTypes of Med-Mal InsuranceClaims-made insurance -Claims-made insurance - covers insured party for claims made only during covers insured party for claims made only during the time period policy was in effectthe time period policy was in effectOccurrence insurance -Occurrence insurance - covers the insured party for all injuries and covers the insured party for all injuries and incidents that occurred while policy was in effect regardless of when claim is incidents that occurred while policy was in effect regardless of when claim is made made Limits Limits – Usually $1-3 Million including defense costs– Usually $1-3 Million including defense costs

Hospital InsuranceHospital InsuranceIn addition to med-mal, you should cover premises liability – Agree w/ co. & In addition to med-mal, you should cover premises liability – Agree w/ co. & know what is (in)(ex)cluded. Ask questions. We are in a “soft market,” know what is (in)(ex)cluded. Ask questions. We are in a “soft market,” therefore you may be able to negotiate additional coverages w/ Pro therefore you may be able to negotiate additional coverages w/ Pro Assurance, Coastal or McNeary. Consider coverage for HHS/CMS civil Assurance, Coastal or McNeary. Consider coverage for HHS/CMS civil penalties; Have high $ “umbrella” gen’l liability coverage. This may have to penalties; Have high $ “umbrella” gen’l liability coverage. This may have to be re-insured.be re-insured.

Goals -Altered Standards of CareGoals -Altered Standards of CareThe New York State Departments of Agriculture and Environmental The New York State Departments of Agriculture and Environmental Conservation estimate that in a “moderate” pandemic influenza event, Conservation estimate that in a “moderate” pandemic influenza event, patients will most likely utilize:patients will most likely utilize:• 63% of hospital bed capacity;• 63% of hospital bed capacity;• 125% of intensive care capacity; and • 125% of intensive care capacity; and

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• 65% of hospital ventilator capacity.• 65% of hospital ventilator capacity.

Thus, in a discussion of the ethical treatment of patients, we would be in a Thus, in a discussion of the ethical treatment of patients, we would be in a scarce resource situation; this leads to a discussion of the ethical and legal scarce resource situation; this leads to a discussion of the ethical and legal basis for basis for Altered Standards of CareAltered Standards of Care. When is it permissible from an ethical . When is it permissible from an ethical and legal standpoint to provide less than the care normally expected or held and legal standpoint to provide less than the care normally expected or held to be what is referred to in both the medical and legal professions as the to be what is referred to in both the medical and legal professions as the standard of care?” standard of care?”

When it permissible from an ethical and legal standpoint to provide less thanWhen it permissible from an ethical and legal standpoint to provide less than the care normally pr traditionally expected or held to be what is referred to the care normally pr traditionally expected or held to be what is referred to in both the medical and legal professions as the “standard of care”?in both the medical and legal professions as the “standard of care”?

Healthcare Research and Quality (AHRQ) and the Office of the Assistant Healthcare Research and Quality (AHRQ) and the Office of the Assistant Secretary for Public Health Emergency Preparedness (OASPHEP) within the Secretary for Public Health Emergency Preparedness (OASPHEP) within the U.S. Department of Health and Human Services (HHS) convened a blue U.S. Department of Health and Human Services (HHS) convened a blue ribbon working group. In their report, they state the following finding, ribbon working group. In their report, they state the following finding, inter inter aliaalia..

•• The goal of an organized and coordinated response to a mass casualty The goal of an organized and coordinated response to a mass casualty event should be to maximize the number of lives saved. event should be to maximize the number of lives saved.

•• Changes in the usual standards of health and medical care will be Changes in the usual standards of health and medical care will be necessary to allocate scarce resources in a different manner to save asnecessary to allocate scarce resources in a different manner to save as many lives as possible. many lives as possible.

•• The basis for allocating health and medical resources in a mass The basis for allocating health and medical resources in a mass casualty event must be fair and clinically sound. casualty event must be fair and clinically sound.

•• The process for making these decisions should be transparent and The process for making these decisions should be transparent and judged by the public to be fair. judged by the public to be fair.

•• Protocols for triage need to be flexible enough to change as the size of Protocols for triage need to be flexible enough to change as the size of a mass casualty event grows.a mass casualty event grows.

•• Staff concerns must be addressed pre-event Staff concerns must be addressed pre-event

Focus Change - Altered StandardsFocus Change - Altered Standards Critical : Critical : Focus Changes from doing to best for each patient to Focus Changes from doing to best for each patient to

maximizing the most lives saved. The maximizing the most lives saved. The systemsystem becomes the pt. becomes the pt. Affect current patients already in hospital Affect current patients already in hospital The scope of practice changesThe scope of practice changes Equipment, meds and supplies rationedEquipment, meds and supplies rationed Record-keeping changes Record-keeping changes

The New York committee reports that in such scenarios, the focus will have The New York committee reports that in such scenarios, the focus will have to change from doing to best for each patient to maximizing the most lives to change from doing to best for each patient to maximizing the most lives saved. They recognize that such consideration will affect current patients saved. They recognize that such consideration will affect current patients already in the hospital for other, non-related illnesses and injuries. They also already in the hospital for other, non-related illnesses and injuries. They also recognize that the usual scope practice standards will of necessity change, recognize that the usual scope practice standards will of necessity change,

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equipment and supplies will need to be rationed, documentation standards equipment and supplies will need to be rationed, documentation standards will change, and [basically, bodies will pile up.]will change, and [basically, bodies will pile up.]

Emergency Management -Under Emergency Management -Under Code of Ala.1975,Code of Ala.1975, § 31-9-2: § 31-9-2:Governor proclaims an “emergency” defined as: Governor proclaims an “emergency” defined as: Enemy attack, sabotage Enemy attack, sabotage or “other hostile action;”or “other hostile action;” Fire, flood and “other natural causes.”Fire, flood and “other natural causes.”

The definition is broad enough to cover B/T incidents or naturally occurring The definition is broad enough to cover B/T incidents or naturally occurring events like hurricanes and tornadoes. events like hurricanes and tornadoes.

Amendments add “Public Health Emergency” - Amendments add “Public Health Emergency” - Under HB 107, “Public health Under HB 107, “Public health emergency,” is defined as: emergency,” is defined as:

“an occurrence or imminent threat of an illness or health condition, “an occurrence or imminent threat of an illness or health condition, caused by Bioterrorism, epidemic or pandemic disease, or novel and caused by Bioterrorism, epidemic or pandemic disease, or novel and highly fatal infectious agent or biological toxin, that poses a substantialhighly fatal infectious agent or biological toxin, that poses a substantial risk of a significant number of human fatalities or incidents of risk of a significant number of human fatalities or incidents of permanent or long-term disability. Such illness or health condition permanent or long-term disability. Such illness or health condition includes, but is not limited to, an illness or health condition resulting includes, but is not limited to, an illness or health condition resulting from a national disaster.”from a national disaster.”

Governor Proclaimed EmergencyGovernor Proclaimed EmergencyThis would activate the State Emergency Operations Plan (EOP). Specifically This would activate the State Emergency Operations Plan (EOP). Specifically activation of Tab A (Pandemic Influenza) to Incident Annex A (Biological activation of Tab A (Pandemic Influenza) to Incident Annex A (Biological Incident Annex) . Due to the complex nature, the Department of Public Incident Annex) . Due to the complex nature, the Department of Public Health has developed different operational plans to deal with mass Health has developed different operational plans to deal with mass distribution of countermeasures and pandemic influenza. The two plans are distribution of countermeasures and pandemic influenza. The two plans are the the Strategic National Stockpile Plan (SNS Plan) and the Pandemic Influenza Strategic National Stockpile Plan (SNS Plan) and the Pandemic Influenza Operational Plan (PI Plan).Operational Plan (PI Plan).   These plans can be utilized together or These plans can be utilized together or separately. They complement each other, and serve as the operational separately. They complement each other, and serve as the operational response to a biological incident in the State of Alabama. The Alabama response to a biological incident in the State of Alabama. The Alabama Emergency Management Agency will activate the State Emergency Emergency Management Agency will activate the State Emergency Operations Center for biological incidents as required by following the same Operations Center for biological incidents as required by following the same process and protocol as for any other disaster impacting the state. process and protocol as for any other disaster impacting the state.

A unified command will be established between agencies such as the A unified command will be established between agencies such as the Alabama Emergency Management Agency, Alabama Department of Public Alabama Emergency Management Agency, Alabama Department of Public Health, Alabama Department of Homeland Security, Alabama Department of Health, Alabama Department of Homeland Security, Alabama Department of Public Safety, Alabama Department of Agriculture and Industries and/or Public Safety, Alabama Department of Agriculture and Industries and/or other agencies as the situation requires. other agencies as the situation requires. ADPH is responsible for Emergency ADPH is responsible for Emergency Support Function (ESF) #8 —Public Health and Medical Services.Support Function (ESF) #8 —Public Health and Medical Services.   Governor’s PowersGovernor’s PowersIn addition to those earlier listed, §31-9-6 also provides authority to:In addition to those earlier listed, §31-9-6 also provides authority to:

Make orders, rules and regulations;Make orders, rules and regulations;

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To utilize all state employees;To utilize all state employees; To utilize any state or local officers or agencies, granting state officer To utilize any state or local officers or agencies, granting state officer

immunity to such, including volunteersimmunity to such, including volunteers

Personal Liability Protections. Personal Liability Protections. Code of Ala, 1975 Code of Ala, 1975 §§31-9-16 provides 31-9-16 provides that:that: Except for willful misconduct, gross negligence or bad faith, any “emergency Except for willful misconduct, gross negligence or bad faith, any “emergency management worker” (EMW) is granted state officer immunity. Requirementsmanagement worker” (EMW) is granted state officer immunity. Requirements for licenses to practice do NOT apply. “Emergency worker” is anyone helpingfor licenses to practice do NOT apply. “Emergency worker” is anyone helping out whether paid or not. The business or corp. is also an EMWout whether paid or not. The business or corp. is also an EMW

Property Protections - Property Protections - § 31-9-17 provides similar liability protections apply§ 31-9-17 provides similar liability protections apply to those permitting the state to use their real propertyto those permitting the state to use their real property

VolunteersVolunteersTJC MS 4.110 - Disaster privileges may be granted when the hospital's TJC MS 4.110 - Disaster privileges may be granted when the hospital's emergency management plan has been activated and the hospital cannot emergency management plan has been activated and the hospital cannot manage immediate patient care needs:manage immediate patient care needs:

Bylaws clearly delineate who may grant disaster or emergency Bylaws clearly delineate who may grant disaster or emergency privilegesprivileges

Medical Staff identifies how it will oversee volunteer independent staff Medical Staff identifies how it will oversee volunteer independent staff who receive disaster privileges and how they will be identifiedwho receive disaster privileges and how they will be identified

Hospital complies with Joint Commission "protocol" for issuance of Hospital complies with Joint Commission "protocol" for issuance of disaster privileges to independent license practitioners disaster privileges to independent license practitioners

Consider using ADPH volunteer registry to have volunteers pre-vetted Consider using ADPH volunteer registry to have volunteers pre-vetted and qualifiedand qualified

Also, such volunteers Also, such volunteers maymay be “state agents” and thus subject to be “state agents” and thus subject to immunity. Further state agents do not transfer liability to the agencyimmunity. Further state agents do not transfer liability to the agency

The “guy who shows up with a chainsaw” should be routed to the Red The “guy who shows up with a chainsaw” should be routed to the Red Cross.Cross.

The Volunteer Service ActThe Volunteer Service Act§ 6-5-336. Volunteers Defined.§ 6-5-336. Volunteers Defined. (a) This section shall be known as "The Volunteer Service Act.“ (a) This section shall be known as "The Volunteer Service Act.“VOLUNTEER. A person performing services for a nonprofit organization, a VOLUNTEER. A person performing services for a nonprofit organization, a nonprofit corporation, a hospital, or a governmental entity without nonprofit corporation, a hospital, or a governmental entity without compensation, other than reimbursement for actual expenses incurred. The compensation, other than reimbursement for actual expenses incurred. The term includes a volunteer serving as a director, officer, trustee, or direct term includes a volunteer serving as a director, officer, trustee, or direct service volunteer.service volunteer.A person performing services for:A person performing services for:

a nonprofit organization or corporationa nonprofit organization or corporation any hospital or a governmental entityany hospital or a governmental entity without compensationwithout compensation

The Volunteer Service ActThe Volunteer Service Act

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(d) Any volunteer shall be immune from civil liability in any action on the (d) Any volunteer shall be immune from civil liability in any action on the basis of any act or omission of a volunteer resulting in damage or injury if:basis of any act or omission of a volunteer resulting in damage or injury if:(1) The volunteer was acting in good faith and within the scope of such (1) The volunteer was acting in good faith and within the scope of such volunteer's official functions and duties for a nonprofit organization, a volunteer's official functions and duties for a nonprofit organization, a nonprofit corporation, hospital, or a governmental entity; andnonprofit corporation, hospital, or a governmental entity; and(2) The damage or injury was not caused by willful or wanton misconduct by (2) The damage or injury was not caused by willful or wanton misconduct by such volunteer.such volunteer.(e) In any suit against a nonprofit organization, nonprofit corporation, or a (e) In any suit against a nonprofit organization, nonprofit corporation, or a hospital for civil damages based upon the negligent act or omission of a hospital for civil damages based upon the negligent act or omission of a volunteer, proof of such act or omission shall be sufficient to establish the volunteer, proof of such act or omission shall be sufficient to establish the responsibility of the organization therefor under the doctrine of "respondeat responsibility of the organization therefor under the doctrine of "respondeat superior," notwithstanding the immunity granted to the volunteer with superior," notwithstanding the immunity granted to the volunteer with respect to any act or omission included under subsection (d).respect to any act or omission included under subsection (d).

ContractsContractsWhat is a ContractWhat is a ContractSimply, an exchange of mutual promises, written or oral to do legal acts.Simply, an exchange of mutual promises, written or oral to do legal acts.

Types of InstrumentsTypes of Instruments ContractsContracts GrantsGrants Benefit Benefit AgreementsAgreements AmendmentsAmendments Purchase OrdersPurchase Orders

Elements of a contractElements of a contract Offer, Offer, Acceptance, Acceptance, Consideration Consideration Detrimental RelianceDetrimental Reliance “Boiler plate”“Boiler plate” “In writing”“In writing”

Contract Suggestion - DCHContract Suggestion - DCHJust in time contracts – work with contractor, IE., Cardinal, to establish pre-Just in time contracts – work with contractor, IE., Cardinal, to establish pre-packaged kits, like “push-pak,” for main and alternate sites. Make sure packaged kits, like “push-pak,” for main and alternate sites. Make sure supplier contracts and contractors have connections to get your supplies, supplier contracts and contractors have connections to get your supplies, like generators, in a hurry and can handle volume. Make sure it’s in writing like generators, in a hurry and can handle volume. Make sure it’s in writing or at least followed up with a letter stating your understanding of the verbal or at least followed up with a letter stating your understanding of the verbal agreementagreement

AgreementsAgreements MOUs MOUs - involves no payment of money- involves no payment of money

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MOAs MOAs – Other party pays ADPH– Other party pays ADPH IMOUs – Intra-departmental agreements IMOUs – Intra-departmental agreements Letter Agreements – miscellaneous itemsLetter Agreements – miscellaneous items

Amendments – Amendments – Use the sUse the same formalities as the instrument which it amendsame formalities as the instrument which it amends and the same process as the instrument which it amends.and the same process as the instrument which it amends.

Mutual Aid: Key CharacteristicsMutual Aid: Key CharacteristicsMutual aid can cover a wide range of activities and arrangements between Mutual aid can cover a wide range of activities and arrangements between numerous different levels of government. Frequently, mutual aid numerous different levels of government. Frequently, mutual aid agreements are not only in writing but also authorized by special legislation. agreements are not only in writing but also authorized by special legislation.

For example, in 2004 Congress enacted special legislation to facilitate For example, in 2004 Congress enacted special legislation to facilitate mutual aid between jurisdictions in the National Capital Region; these mutual aid between jurisdictions in the National Capital Region; these arrangements had been hindered by the significant differences in tort arrangements had been hindered by the significant differences in tort liability in the State of Maryland, the Commonwealth of Virginia, and the liability in the State of Maryland, the Commonwealth of Virginia, and the District of Columbia. Section 7302 of P.L. 108-458, __ Stat __ 2004 District of Columbia. Section 7302 of P.L. 108-458, __ Stat __ 2004 (INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004). The (INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004). The statutory solution here was to provide that the law and court system of a statutory solution here was to provide that the law and court system of a responder’s home jurisdiction would apply to lawsuits against the responder responder’s home jurisdiction would apply to lawsuits against the responder and his or her employing jurisdiction.and his or her employing jurisdiction.

A key aspect of mutual aid agreements is that they do not require that A key aspect of mutual aid agreements is that they do not require that assistance be provided. No government can commit to send resources assistance be provided. No government can commit to send resources elsewhere in advance without knowing whether those resources are requiredelsewhere in advance without knowing whether those resources are required to handle its own problems.to handle its own problems.

Mutual Aid: Key CharacteristicsMutual Aid: Key CharacteristicsSome mutual aid agreements do not provide for compensation. These Some mutual aid agreements do not provide for compensation. These agreements normally cover small scale incidents requiring limited resources agreements normally cover small scale incidents requiring limited resources and a relatively short duration. For emergency response, however, the cost and a relatively short duration. For emergency response, however, the cost of providing extensive resources over a significant period of time becomes of providing extensive resources over a significant period of time becomes very significant.very significant.

If the activities performed under a mutual aid agreement are “emergency If the activities performed under a mutual aid agreement are “emergency measures” that would otherwise be eligible for federal reimbursement under measures” that would otherwise be eligible for federal reimbursement under the Stafford Act, then the costs charged under the mutual aid agreement the Stafford Act, then the costs charged under the mutual aid agreement would also be reimbursable – but only if the mutual aid agreement is in would also be reimbursable – but only if the mutual aid agreement is in writing and requires compensation. See FEMA Public Assistance Policy No. writing and requires compensation. See FEMA Public Assistance Policy No. 9523.6, “Mutual Aid Agreements for Public Assistance.” (September 22, 9523.6, “Mutual Aid Agreements for Public Assistance.” (September 22, 2004). 2004).

Litigation over mutual aid agreements is rare. Most cases have involved Litigation over mutual aid agreements is rare. Most cases have involved employees injured during a response, as a result of legal uncertainty over employees injured during a response, as a result of legal uncertainty over whether workman’s compensation limitations applied and which jurisdiction whether workman’s compensation limitations applied and which jurisdiction was responsible.was responsible.

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In the absence of dispute resolution provisions in the mutual aid agreement, In the absence of dispute resolution provisions in the mutual aid agreement, disputes between requesting and responding jurisdictions may be litigated indisputes between requesting and responding jurisdictions may be litigated in a court with jurisdiction over the parties and subject matter. For example, a court with jurisdiction over the parties and subject matter. For example, original jurisdiction over disputes between states is in the United States original jurisdiction over disputes between states is in the United States Supreme Court. Supreme Court.

EMAC provides that any employee of responding jurisdiction is deemed to beEMAC provides that any employee of responding jurisdiction is deemed to be licensed in the requesting jurisdiction.licensed in the requesting jurisdiction.

IntraIntrastate Mutual Aidstate Mutual AidNorth Alabama Mutual Aid Compact:North Alabama Mutual Aid Compact:

Lauderdale, Colbert, Franklin, Marion, Lawrence, Winston, Walker, Lauderdale, Colbert, Franklin, Marion, Lawrence, Winston, Walker, Limestone, Morgan, Cullman, Blount, Madison, Marshall, Jackson, DeKalb, Limestone, Morgan, Cullman, Blount, Madison, Marshall, Jackson, DeKalb, CherokeeCherokee

South Alabama Mutual Aid Compact:South Alabama Mutual Aid Compact:Baldwin, Butler, Choctaw, Clarke, Coffee, Conecuh, Covington, Baldwin, Butler, Choctaw, Clarke, Coffee, Conecuh, Covington,

Crenshaw, Dale, Dallas, Geneva, Henry, Houston, Lowndes, Marengo, Crenshaw, Dale, Dallas, Geneva, Henry, Houston, Lowndes, Marengo, Monroe, Montgomery, Pickens, Pike, Sumter, Tallapoosa, Washington, WilcoxMonroe, Montgomery, Pickens, Pike, Sumter, Tallapoosa, Washington, Wilcox

National Emergency Management Association has developed a Model National Emergency Management Association has developed a Model Intrastate Mutual Aid Agreement to assist states in reviewing their existing Intrastate Mutual Aid Agreement to assist states in reviewing their existing legislation.legislation.http://emacweb.org/docs/NEMA%20Proposed%20Intrastate%20Model-http://emacweb.org/docs/NEMA%20Proposed%20Intrastate%20Model-Final.pdfFinal.pdf

Per that document- 27 States had formal agreements as of February 2004Per that document- 27 States had formal agreements as of February 2004Those states include: AL, AZ, CT, FL, GA, HI, IL, IN, IA, LA, MD, MI, MO, MS,NE,Those states include: AL, AZ, CT, FL, GA, HI, IL, IN, IA, LA, MD, MI, MO, MS,NE, NH, NC, OH, OR, RI, SC, TX, VT.NH, NC, OH, OR, RI, SC, TX, VT.

5 Additional states had proposed compacts in their legislature during 5 Additional states had proposed compacts in their legislature during February 2004, including: AL, CO, KY, NV, and WIFebruary 2004, including: AL, CO, KY, NV, and WI

An additional 4 states & 1 territory were drafting a proposal before their An additional 4 states & 1 territory were drafting a proposal before their legislature, as of 2/04 including: DE, NM, NY, OK & VIlegislature, as of 2/04 including: DE, NM, NY, OK & VI

Intrastate Compact applies to mutual aid provided by governmental Intrastate Compact applies to mutual aid provided by governmental entities within the state (for example: city to city; county to city, entities within the state (for example: city to city; county to city, county to county, etc.)county to county, etc.)

Draft ‘Model Intrastate Mutual Aid Agreement’ available to statesDraft ‘Model Intrastate Mutual Aid Agreement’ available to states When enacted, assures a written mutual aid agreement available When enacted, assures a written mutual aid agreement available

covering local communities when governor declares emergency covering local communities when governor declares emergency Includes compensation provisionsIncludes compensation provisions The Urban Lawyer is publishing an extensive article on The Urban Lawyer is publishing an extensive article on

intergovernmental agreements and liability concerns in early 2005.intergovernmental agreements and liability concerns in early 2005.

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The MOU- Alabama ProspectiveThe MOU- Alabama ProspectiveAlabama Hospital Mutual Aid MOU (59 sigs)- See Alabama Hospital Mutual Aid MOU (59 sigs)- See http://www.adph.org/CEP/assets/Mutual_Aid_Compact_including_Exhibits_finahttp://www.adph.org/CEP/assets/Mutual_Aid_Compact_including_Exhibits_final.docl.docMOUs define rights and responsibilities only:MOUs define rights and responsibilities only:

Parties: ADPH, hospitals, other providers, responder communities, Parties: ADPH, hospitals, other providers, responder communities, other regional partiesother regional parties

Disaster – proclaimed, declared or notDisaster – proclaimed, declared or not Limitations – players and resourcesLimitations – players and resources The need: identifying & providing resources, personnelThe need: identifying & providing resources, personnel  and & care andand & care and

moving patientsmoving patients  

The MOU - PurposeThe MOU - Purpose•• Purpose - the Network was created and organized to identify resources Purpose - the Network was created and organized to identify resources

to support the coordination of local, state, and multi-state resources to to support the coordination of local, state, and multi-state resources to respond to an emergency or disaster, both natural and man-made, thatrespond to an emergency or disaster, both natural and man-made, that exceed the resources of one or more Network Participants.exceed the resources of one or more Network Participants.

•• The Network identifies, utilizes, and participates with a variety of The Network identifies, utilizes, and participates with a variety of health care facilities including pediatric, specialty care, tertiary care health care facilities including pediatric, specialty care, tertiary care and general hospitals as well as other resource centers such as privateand general hospitals as well as other resource centers such as private health care providers and clinics, and home health agencies;health care providers and clinics, and home health agencies;

•• This agreement and relationship among Network Participants is This agreement and relationship among Network Participants is intended to augment, not replace, each Network Participant's intended to augment, not replace, each Network Participant's emergency operationsemergency operations   plan (EOP). This document does not replace plan (EOP). This document does not replace but rather supplements the governingbut rather supplements the governing   law, rules and regulations and law, rules and regulations and procedures and protocols governing interaction with, and among, otherprocedures and protocols governing interaction with, and among, other organizations during a disaster (e.g., EOP of the State, emergency organizations during a disaster (e.g., EOP of the State, emergency management agencies, law enforcement agencies, the local management agencies, law enforcement agencies, the local emergency medical services, state and local public health emergency medical services, state and local public health departments, fire departments, and nongovernment disaster response departments, fire departments, and nongovernment disaster response agencies (NGO) such as the American Red Cross.agencies (NGO) such as the American Red Cross.

MOU – Not ObligatoryMOU – Not ObligatoryNo party is legally obligated to accept patients or send staff, supplies or No party is legally obligated to accept patients or send staff, supplies or resources when to do so would compromise its local service mission. This resources when to do so would compromise its local service mission. This agreement is entered into voluntarily and the Network Participants are not agreement is entered into voluntarily and the Network Participants are not obligated to offer any support or assistance; however, Network Participants obligated to offer any support or assistance; however, Network Participants agree, in the event of a Disaster, to use reasonable efforts to make pediatric agree, in the event of a Disaster, to use reasonable efforts to make pediatric clinical staff, medical and general supplies, including pharmaceuticals, and clinical staff, medical and general supplies, including pharmaceuticals, and biomedical equipment (including, but not limited to ventilators, monitors andbiomedical equipment (including, but not limited to ventilators, monitors and infusion pumps) available to each another. Each Network Participant shall be infusion pumps) available to each another. Each Network Participant shall be entitled to use its reasonable judgment regarding the type and amount of entitled to use its reasonable judgment regarding the type and amount of staff, supplies and equipment it can provide without adversely affecting its staff, supplies and equipment it can provide without adversely affecting its own ability to provide essential services.own ability to provide essential services.

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However, participants agree to try to assist and to advise of availability of However, participants agree to try to assist and to advise of availability of resources through Incident Management Systemsresources through Incident Management Systems

The purpose is to coordinate sending and receiving of patients, staff, The purpose is to coordinate sending and receiving of patients, staff, equipment, staff and resources through the EOCsequipment, staff and resources through the EOCs

MOU – Normal EMA ChainMOU – Normal EMA ChainRequests for mutual assistance follow the normal process of requesting Requests for mutual assistance follow the normal process of requesting assistance through the local Emergency Management Agency and, if assistance through the local Emergency Management Agency and, if appropriate, the local Emergency Management Agency will escalate the appropriate, the local Emergency Management Agency will escalate the request to the appropriate Region state Emergency Management Agency request to the appropriate Region state Emergency Management Agency and if needed the state Emergency Management Agency may escalate and if needed the state Emergency Management Agency may escalate requests at the Federal level. requests at the Federal level.

The Network, through the Emergency Operations Centers will coordinate The Network, through the Emergency Operations Centers will coordinate efforts between Network Participants and Region state Emergency efforts between Network Participants and Region state Emergency Operations Centers to ensure appropriate transfer of pediatric patients and Operations Centers to ensure appropriate transfer of pediatric patients and optimal utilization of pediatric health care resources within the Region. optimal utilization of pediatric health care resources within the Region.

Each Network Participant signatory will identify a point of contact who is Each Network Participant signatory will identify a point of contact who is familiar with the Network, hereinafter known as a “Designated familiar with the Network, hereinafter known as a “Designated Representative,” who has operational authority to act as a liaison with the Representative,” who has operational authority to act as a liaison with the Network during any revisions of this Network Memorandum of UnderstandingNetwork during any revisions of this Network Memorandum of Understanding and to communicate with the Network and the appropriate individuals within and to communicate with the Network and the appropriate individuals within the representative’s own organization in the event of a Disaster. The the representative’s own organization in the event of a Disaster. The Designated Representative or delegate individual shall attend meetings and Designated Representative or delegate individual shall attend meetings and conferences scheduled by the Network to discuss issues related to this conferences scheduled by the Network to discuss issues related to this Network and if needed, to revise the Network Memorandum of Network and if needed, to revise the Network Memorandum of Understanding. The Designated Representative or delegated individual shall Understanding. The Designated Representative or delegated individual shall act as a liaison with representatives of the Network Participants in the event act as a liaison with representatives of the Network Participants in the event of a Disaster.of a Disaster.

The Network Participants agree to communicate and coordinate their The Network Participants agree to communicate and coordinate their response efforts via their Designated Representatives who have operational response efforts via their Designated Representatives who have operational authority to commit the resources of the Participant as specified in the authority to commit the resources of the Participant as specified in the Participant Emergency Operations Plan.Participant Emergency Operations Plan.In the event of a Disaster, Network Participants agree to inform their non-In the event of a Disaster, Network Participants agree to inform their non-employee medical staff members of any requests for assistance and offer employee medical staff members of any requests for assistance and offer them the opportunity to volunteer their professional services. Network them the opportunity to volunteer their professional services. Network Participants shall cooperate with each other to provide in a timely manner Participants shall cooperate with each other to provide in a timely manner the information necessary to verify employment status, licensure, training the information necessary to verify employment status, licensure, training and other information necessary in order for such volunteers to receive and other information necessary in order for such volunteers to receive emergency credentials.emergency credentials.

MOU Reimbursement, Non-Exclusivity, WithdrawalMOU Reimbursement, Non-Exclusivity, Withdrawal

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Network Participants cannot guarantee reimbursement for pediatric medical Network Participants cannot guarantee reimbursement for pediatric medical assistance, facilities, supplies or other types of support. However, to the assistance, facilities, supplies or other types of support. However, to the extent that reimbursement may be available, every effort will be made to extent that reimbursement may be available, every effort will be made to obtain such reimbursement through federal or other monies as they become obtain such reimbursement through federal or other monies as they become available as long as the Network Participant is not reimbursed for the available as long as the Network Participant is not reimbursed for the pediatric medical assistance, facilities, supplies or other types of support by pediatric medical assistance, facilities, supplies or other types of support by insurance, Medicare, Medicaid, or other third party payor. insurance, Medicare, Medicaid, or other third party payor.

To ensure effectiveness, Network Participants will be given an opportunity to To ensure effectiveness, Network Participants will be given an opportunity to participate in periodic Network training exercises (exercise and drills) participate in periodic Network training exercises (exercise and drills) simulating disaster events affecting the Region.simulating disaster events affecting the Region.

Network Participants bear no liability or responsibility for any claim, loss or Network Participants bear no liability or responsibility for any claim, loss or damage arising out of or in conjunction with voluntary participation in the damage arising out of or in conjunction with voluntary participation in the Network.Network.Nothing in this agreement shall be construed as limiting the rights of the Nothing in this agreement shall be construed as limiting the rights of the Network Participants to affiliate or contract with any other entity or operatingNetwork Participants to affiliate or contract with any other entity or operating an entity or other health care facility on either a limited or general basis an entity or other health care facility on either a limited or general basis while this agreement is in effect. while this agreement is in effect. This Memorandum of Understanding may be canceled at any time by any This Memorandum of Understanding may be canceled at any time by any party by giving a thirty (30) day written notice to the other parties. party by giving a thirty (30) day written notice to the other parties. However, if no such notice is given, the Network agreement remains in effectHowever, if no such notice is given, the Network agreement remains in effect in perpetuity. in perpetuity.

MOU - LiabilityMOU - LiabilityParticipants assume no liability merely by becoming a signatory to the MOUParticipants assume no liability merely by becoming a signatory to the MOUHowever, participants may be liable for acts and omissions of their staff in However, participants may be liable for acts and omissions of their staff in performance under the MOU or governmental ordersperformance under the MOU or governmental ordersAlso, in following their pre-approved plan, in case of Declaration by Also, in following their pre-approved plan, in case of Declaration by Governor, there may be certain immunities for staffGovernor, there may be certain immunities for staff

Transportation/EMS ContractsTransportation/EMS ContractsOut of state ambulances are forbidden to make point to point runs within theOut of state ambulances are forbidden to make point to point runs within the state.state.Otherwise, state EMS rules allow full use of ambulances from out of state intoOtherwise, state EMS rules allow full use of ambulances from out of state into the state. the state. Rules could be waived. Even so, would there be enough ambulances in a Rules could be waived. Even so, would there be enough ambulances in a disaster if all hospitals contract w/ same EMS ambulance Co? What other disaster if all hospitals contract w/ same EMS ambulance Co? What other vehicles could be used? vehicles could be used?

Common carriersCommon carriers School & municipal bussesSchool & municipal busses

Transfer Agreement IssuesTransfer Agreement Issues Got appropriate transfer agreements?Got appropriate transfer agreements? Could they go out of state perhaps?Could they go out of state perhaps? To what types of facilities?To what types of facilities?

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Do you have agreements with carriers?Do you have agreements with carriers? Are there backups for everything? Are there backups for everything? Could your EMAC Agreements incorporate cooperation on “transfer Could your EMAC Agreements incorporate cooperation on “transfer

agreement” language and use of resources?agreement” language and use of resources? Security & supplies of personnel and patients?Security & supplies of personnel and patients? Records be transferred electronically (EMR)?Records be transferred electronically (EMR)?

Private Agreements Private Agreements The example of mutual aid agreements is the “Metropolitan Area Hospital The example of mutual aid agreements is the “Metropolitan Area Hospital Compact” of the Twin Cities. It does the following: Compact” of the Twin Cities. It does the following:

•• specifies that the agreement is not a legally binding contract; rather it specifies that the agreement is not a legally binding contract; rather it outlines a general policy of cooperation and coordination in the event outlines a general policy of cooperation and coordination in the event of a disaster.of a disaster.

•• emphasizes that the agreement is voluntary.emphasizes that the agreement is voluntary.•• designates a mechanism through which signatory organizations can designates a mechanism through which signatory organizations can

communicate with one another to request aid in the event of a communicate with one another to request aid in the event of a disaster.disaster.

•• requires a signature of the organization’s representative. requires a signature of the organization’s representative.

It addresses:It addresses:•• Communications including liaison officers, EOCs, includes a joint public Communications including liaison officers, EOCs, includes a joint public

information center provisioninformation center provision•• Forced evacuation – distributes patients equallyForced evacuation – distributes patients equally•• Cooperates with NDMS activationCooperates with NDMS activation•• Requires reporting of bed capacity. (In Alabama use AIMS )Requires reporting of bed capacity. (In Alabama use AIMS )•• Discusses auxiliary locations in sever disaster and how each hospital Discusses auxiliary locations in sever disaster and how each hospital

will contribute personnel to man such a facilitywill contribute personnel to man such a facility•• Discusses sharing of staffDiscusses sharing of staff

Types of Mutual Aid Agreements - EMACTypes of Mutual Aid Agreements - EMACEMAC affords states providing and receiving post-disaster assistance the EMAC affords states providing and receiving post-disaster assistance the ability to move equipment and people across state lines rapidly by ability to move equipment and people across state lines rapidly by establishing systems and protocols for:establishing systems and protocols for:

1.1. the acceptance of out-of-state medical licenses; the acceptance of out-of-state medical licenses; 2.2. the recovery of costs incurred by states providing assistance;the recovery of costs incurred by states providing assistance;3.3. legal liability claims that arise from the activities of out-of-state legal liability claims that arise from the activities of out-of-state

workers; and workers; and 4.4. workers’ compensation payments should those out-of-state workers beworkers’ compensation payments should those out-of-state workers be

injured or killed while responding to the disaster. injured or killed while responding to the disaster.

In short, EMAC provides for “mutual assistance between states … in In short, EMAC provides for “mutual assistance between states … in managing any emergency or disaster that is duly declared by the governor ofmanaging any emergency or disaster that is duly declared by the governor of the affected state(s), whether arising from natural disaster, technological the affected state(s), whether arising from natural disaster, technological hazard, man-made disaster, civil emergency aspects of resource shortages, hazard, man-made disaster, civil emergency aspects of resource shortages, community disorders, insurgency, or enemy attack.”community disorders, insurgency, or enemy attack.”

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Intrastate Mutual AidIntrastate Mutual Aid – one local government to another. – one local government to another.

Interstate and Regional Mutual AidInterstate and Regional Mutual Aid – – International ‘Mutual Aid’International ‘Mutual Aid’ Can Can involve aid from one country to another – e.g., Australia and Canada both involve aid from one country to another – e.g., Australia and Canada both provide fire fighting assistance to the US Forest Service in heavy fire fighting provide fire fighting assistance to the US Forest Service in heavy fire fighting years – or between states, provinces, and local governments along the US-years – or between states, provinces, and local governments along the US-Canada or US-Mexico borders. Under the US Constitution, no state may enterCanada or US-Mexico borders. Under the US Constitution, no state may enter into any agreement with a foreign power without the consent of Congress. into any agreement with a foreign power without the consent of Congress. Article 1, Section 10. Many jurisdictions on the border have not sought Article 1, Section 10. Many jurisdictions on the border have not sought congressional approval for intergovernmental agreements. While these congressional approval for intergovernmental agreements. While these agreements appear to work well, any provisions providing for liability agreements appear to work well, any provisions providing for liability protection in these agreements may be declared invalid if it were ever protection in these agreements may be declared invalid if it were ever scrutinized in litigation.scrutinized in litigation.

Emergency Management Mutual Assistance Compact (EMAC)Emergency Management Mutual Assistance Compact (EMAC)EMAC is designed to: authorize mutual aid with other states;EMAC is designed to: authorize mutual aid with other states;

Facilitate licensure (deemed status) and immunities of other state’s Facilitate licensure (deemed status) and immunities of other state’s workers;workers;

Permit condemnation, seizure and compensation of facilities and Permit condemnation, seizure and compensation of facilities and property;property;

Coordinate evacuation; and direct all civilian officers.Coordinate evacuation; and direct all civilian officers.

It has 49 states as signatories to EMAC. Only California is not, and they can’t It has 49 states as signatories to EMAC. Only California is not, and they can’t make up their minds whether they’re in or not.make up their minds whether they’re in or not.

InterInterstate Mutual Aidstate Mutual Aid•• Interstate compacts require the consent of Congress under the US Interstate compacts require the consent of Congress under the US

Constitution. This approval was provided in 1996. PL 104-321, OctoberConstitution. This approval was provided in 1996. PL 104-321, October 19, 1996, 110 Stat 3877. In Alabama, see 31-9-7. 19, 1996, 110 Stat 3877. In Alabama, see 31-9-7.

•• Under a Federal Stafford Act Declaration, EMAC requests Coordinated Under a Federal Stafford Act Declaration, EMAC requests Coordinated through EMAC personnel at JFO if appropriate.through EMAC personnel at JFO if appropriate.

•• The National Incident Management System is developing a system for The National Incident Management System is developing a system for describing clearly the different kinds of resources that can be provided describing clearly the different kinds of resources that can be provided under mutual aid agreements – to assure that the responding under mutual aid agreements – to assure that the responding jurisdiction knows exactly what resources are being requested. This jurisdiction knows exactly what resources are being requested. This initiative is called “resource typing” and is being conducted in initiative is called “resource typing” and is being conducted in coordination with the member states of EMAC.coordination with the member states of EMAC.

EMAC provides that any employee of responding jurisdiction is licensed in EMAC provides that any employee of responding jurisdiction is licensed in the requesting jurisdiction.the requesting jurisdiction.

Mutual Aid: Key CharacteristicsMutual Aid: Key CharacteristicsMutual aid can cover a wide range of activities and arrangements between Mutual aid can cover a wide range of activities and arrangements between numerous different levels of government. Frequently, mutual aid numerous different levels of government. Frequently, mutual aid agreements are not only in writing but also authorized by special legislation. agreements are not only in writing but also authorized by special legislation.

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For example, in 2004 Congress enacted special legislation to facilitate For example, in 2004 Congress enacted special legislation to facilitate mutual aid between jurisdictions in the National Capital Region; these mutual aid between jurisdictions in the National Capital Region; these arrangements had been hindered by the significant differences in tort arrangements had been hindered by the significant differences in tort liability in the State of Maryland, the Commonwealth of Virginia, and the liability in the State of Maryland, the Commonwealth of Virginia, and the District of Columbia. Section 7302 of P.L. 108-458, __ Stat __ 2004 District of Columbia. Section 7302 of P.L. 108-458, __ Stat __ 2004 (INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004). The (INTELLIGENCE REFORM AND TERRORISM PREVENTION ACT OF 2004). The statutory solution here was to provide that the law and court system of a statutory solution here was to provide that the law and court system of a responder’s home jurisdiction would apply to lawsuits against the responder responder’s home jurisdiction would apply to lawsuits against the responder and his or her employing jurisdiction.and his or her employing jurisdiction.

A key aspect of mutual aid agreements is that they do not require that A key aspect of mutual aid agreements is that they do not require that assistance be provided. No government can commit to send resources assistance be provided. No government can commit to send resources elsewhere in advance without knowing whether those resources are requiredelsewhere in advance without knowing whether those resources are required to handle its own problemsto handle its own problems

Key Characteristics Key Characteristics Some mutual aid agreements do not provide for compensation. These Some mutual aid agreements do not provide for compensation. These agreements normally cover small scale incidents requiring limited resources agreements normally cover small scale incidents requiring limited resources and a relatively short duration. and a relatively short duration.

If the activities performed under a mutual aid agreement are “emergency If the activities performed under a mutual aid agreement are “emergency measures” that would otherwise be eligible for federal reimbursement under measures” that would otherwise be eligible for federal reimbursement under the Stafford Act, then the costs charged under the mutual aid agreement the Stafford Act, then the costs charged under the mutual aid agreement would also be reimbursable – but only if the mutual aid agreement is in would also be reimbursable – but only if the mutual aid agreement is in writing and requires compensation. See FEMA Public Assistance Policy No. writing and requires compensation. See FEMA Public Assistance Policy No. 9523.6, “Mutual Aid Agreements for Public Assistance.” (September 22, 9523.6, “Mutual Aid Agreements for Public Assistance.” (September 22, 2004). 2004).

Litigation over mutual aid agreements is rare. Most cases have involved Litigation over mutual aid agreements is rare. Most cases have involved employees injured during a response, as a result of legal uncertainty over employees injured during a response, as a result of legal uncertainty over whether workman’s compensation limitations applied and which jurisdiction whether workman’s compensation limitations applied and which jurisdiction was responsible.was responsible.

In the absence of dispute resolution provisions in the mutual aid agreement, In the absence of dispute resolution provisions in the mutual aid agreement, disputes between requesting and responding jurisdictions may be litigated indisputes between requesting and responding jurisdictions may be litigated in a court with jurisdiction over the parties and subject matter. For example, a court with jurisdiction over the parties and subject matter. For example, original jurisdiction over disputes between states is in the United States original jurisdiction over disputes between states is in the United States Supreme Court. Supreme Court.

EMAC in the Broader SenseEMAC in the Broader SenseEMAC, in the Broader Sense is any agreement for mutual aid that can EMAC, in the Broader Sense is any agreement for mutual aid that can facilitate the mission among or with:facilitate the mission among or with:

The member facilities and their staffs,The member facilities and their staffs, Suppliers of goods and services,Suppliers of goods and services,

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Public health and emergency management,Public health and emergency management, State licensing agencies,State licensing agencies, State Medicaid agencies and other insurers,State Medicaid agencies and other insurers, Federal agencies – CMS, CDC, FBI, DOJ andFederal agencies – CMS, CDC, FBI, DOJ and Local and state officials.Local and state officials.

Cost ReimbursementCost ReimbursementThe formulation of organizational mutual aid agreements is a rapidly growingThe formulation of organizational mutual aid agreements is a rapidly growing trend in the U.S. Many state and local governments, and private for-profit trend in the U.S. Many state and local governments, and private for-profit and nonprofit organizations formulate mutual aid agreements to provide and nonprofit organizations formulate mutual aid agreements to provide emergency assistance to each other in the event of disasters or other crises. emergency assistance to each other in the event of disasters or other crises.

The conditions of the agreements may be to provide reciprocal services or toThe conditions of the agreements may be to provide reciprocal services or to receive direct payment through specific labor and equipment rates outlined receive direct payment through specific labor and equipment rates outlined in the agreements. These agreements usually are written but, occasionally, in the agreements. These agreements usually are written but, occasionally, are by understanding or are arranged after a disaster occurs. are by understanding or are arranged after a disaster occurs.

The Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 93-The Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 93-288, reimburses mutual aid agreement costs associated with emergency 288, reimburses mutual aid agreement costs associated with emergency assistance provided all of the following conditions are met: assistance provided all of the following conditions are met: 1.1.    The assistance requested by the applicant is The assistance requested by the applicant is directly related to the directly related to the disasterdisaster and is eligible for FEMA assistance. and is eligible for FEMA assistance.2. 2.     The mutual The mutual aid agreement is in written formaid agreement is in written form and signed by and signed by authorized officials of the agreeing parties prior to the disaster.authorized officials of the agreeing parties prior to the disaster.3. 3.   The mutual aid The mutual aid agreement applies uniformlyagreement applies uniformly in emergency situations. in emergency situations. The agreement must not be contingent upon a declaration of a major The agreement must not be contingent upon a declaration of a major disaster or emergency by the Federal government or on receiving Federal disaster or emergency by the Federal government or on receiving Federal funds.funds.4. 4.   The providing entity may not request or receive grant funds The providing entity may not request or receive grant funds directlydirectly. Only the eligible applicant receiving the aid may request grant . Only the eligible applicant receiving the aid may request grant assistance.assistance.5.5.    Upon request, the applicant must be able to Upon request, the applicant must be able to provide FEMA with provide FEMA with documentationdocumentation that the services were requested. that the services were requested.

Criterion 4 indicates that hospitals that have incurred costs through assistingCriterion 4 indicates that hospitals that have incurred costs through assisting other hospitals can retrieve those costs through obtaining monies disbursed other hospitals can retrieve those costs through obtaining monies disbursed to the hospital receiving the aid.to the hospital receiving the aid.

Contractual LiabilityContractual LiabilityA contract is just a legally enforceable promise between two or more parties.A contract is just a legally enforceable promise between two or more parties. They don’t have to be big legal documents drafted by lawyers. Some They don’t have to be big legal documents drafted by lawyers. Some contracts must be in writing, but others can be verbal, or scribbled on the contracts must be in writing, but others can be verbal, or scribbled on the back of a napkin. The elements generally recognized as creating a contract back of a napkin. The elements generally recognized as creating a contract are an agreement between the parties and some consideration - something are an agreement between the parties and some consideration - something of value, not necessarily money- that is exchanged by the parties.of value, not necessarily money- that is exchanged by the parties.

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However, remember the rule above, “if it ain’t wrote down, it didn’t happen,”However, remember the rule above, “if it ain’t wrote down, it didn’t happen,” so, get it in writing if at all possible.so, get it in writing if at all possible.

So how can contractual liability come into play for EMS programs? It can So how can contractual liability come into play for EMS programs? It can surface in several ways, which are listed on this slide. One of the most surface in several ways, which are listed on this slide. One of the most important exposures is assuming liability from the other party in a contract, important exposures is assuming liability from the other party in a contract, For example, an EMS program may be asked to agree in a contract or letter For example, an EMS program may be asked to agree in a contract or letter of agreement that it will be responsible for any liability arising from the of agreement that it will be responsible for any liability arising from the activities of its volunteers. This would be the effect of an indemnification activities of its volunteers. This would be the effect of an indemnification and hold harmless clause in the letter of agreement. Or a response partner and hold harmless clause in the letter of agreement. Or a response partner may require the program to have insurance it doesn’t have, leaving it in may require the program to have insurance it doesn’t have, leaving it in breach of contract for failing to have it. breach of contract for failing to have it.

Avoiding/Reducing LiabilityAvoiding/Reducing LiabilityRisk management is approached on two levels: Agency level and Individual Risk management is approached on two levels: Agency level and Individual level.level.Avoiding liability means not being held liable in court (it does not mean Avoiding liability means not being held liable in court (it does not mean “can’t be sued”)“can’t be sued”)

Internal Practices to Reduce Liability Risk – Provide forInternal Practices to Reduce Liability Risk – Provide for Credentialing and assignment to appropriate dutiesCredentialing and assignment to appropriate duties Criminal background checksCriminal background checks Verifying necessary licenses (professional, driving, watercraft)Verifying necessary licenses (professional, driving, watercraft) Clear activation and deactivation proceduresClear activation and deactivation procedures Employee orientation, training and exercisesEmployee orientation, training and exercises Employee identification badgesEmployee identification badges Written partnership agreements stating roles & responsibilitiesWritten partnership agreements stating roles & responsibilities Written engagement/utilization records Written engagement/utilization records Procedures for keeping patient treatment notesProcedures for keeping patient treatment notes Rules of conduct and grounds for dismissalRules of conduct and grounds for dismissal Communications proceduresCommunications procedures Post-incident debriefingPost-incident debriefing

Practical Advice – Liability, and Out of State ProvidersPractical Advice – Liability, and Out of State ProvidersDisaster PrivilegesDisaster Privileges

Photo ID, copy of current license, proof of liability insurance, DMAT or Photo ID, copy of current license, proof of liability insurance, DMAT or MRC ID, (or personal knowledge by staff member)MRC ID, (or personal knowledge by staff member)

Assign provider to area qualified to workAssign provider to area qualified to work Abbreviated orientation program for emergency personnel Abbreviated orientation program for emergency personnel

Brief on state-specific liability issues such as Licensure, Good Samaritan, andBrief on state-specific liability issues such as Licensure, Good Samaritan, and Med-Mal Laws. Consider using ADPH volunteer system to vet out of state Med-Mal Laws. Consider using ADPH volunteer system to vet out of state personnel.personnel.

Altruistic PatientsAltruistic Patients

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Patients who say, “take her ahead, I’m not that injured.” Remember, “No Patients who say, “take her ahead, I’m not that injured.” Remember, “No good deed ever goes unpunished” thus regardless of what they say, follow good deed ever goes unpunished” thus regardless of what they say, follow triage protocol and document their statements.triage protocol and document their statements.

For A Copy of Presentation and a PaperFor A Copy of Presentation and a Paper See “Ethics Paper 2012” a download on Slideshare See “Ethics Paper 2012” a download on Slideshare 77 See several presentations & documents also: See several presentations & documents also:

http://www.slideshare.net/jwible http://www.slideshare.net/jwible Blog: http://www.johnwible.blogspot.com Blog: http://www.johnwible.blogspot.com Also on FacebookAlso on Facebook

See AlsoSee AlsoHospitals and Community, Emergency Response - What You Need to Know,Hospitals and Community, Emergency Response - What You Need to Know,Emergency Response Safety Series, U.S. Department of Labor – OSHA #3152Emergency Response Safety Series, U.S. Department of Labor – OSHA #3152 (1997)(1997)TJC Standards on Hospital Emergency Planning: CAMH/HospitalsTJC Standards on Hospital Emergency Planning: CAMH/Hospitals

More Resources - TJCMore Resources - TJCHealthcare at the CrossroadsHealthcare at the Crossroads TJC http://www.google.com/url? TJC http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&sqi=2&ved=0CCsQFjAB&url=hsa=t&rct=j&q=&esrc=s&source=web&cd=2&sqi=2&ved=0CCsQFjAB&url=http%3A%2F%2Fwww.jointcommission.org%2Fassetsttp%3A%2F%2Fwww.jointcommission.org%2Fassets%2F1%2F18%2Femergency_preparedness.pdf&ei=Fig9T7CXMIOltwfjur20BQ%2F1%2F18%2Femergency_preparedness.pdf&ei=Fig9T7CXMIOltwfjur20BQ&usg=AFQjCNH4MW08aTuQbRTDAwjj9i4oK6pwtg&sig2=-&usg=AFQjCNH4MW08aTuQbRTDAwjj9i4oK6pwtg&sig2=-KywQYc3ldurvHxWQ-WZ3QKywQYc3ldurvHxWQ-WZ3Q

Example Hospital TJC PlanExample Hospital TJC PlanAn example plan is found at: An example plan is found at: http://www.uhb.org/pnp/dsplan.htmhttp://www.uhb.org/pnp/dsplan.htm. This is . This is from the State University of New York Hospital System.from the State University of New York Hospital System.

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