Transcript Slide 1
The Center for Law & the Public’s Health
at Georgetown & Johns Hopkins Universities
Reforming State Law to Facilitate the Use of Volunteer Health Personnel During Emergencies: The Uniform Emergency Volunteer Health Practitioner Act (UEVHPA) Brief Overview
James G. Hodge, Jr., J.D., LL.M.
Associate Professor, Johns Hopkins Bloomberg School of PH Executive Director, Center for Law & the Public’s Health
Principal Investigator, HRSA ESAR-VHP Legal and Regulatory Issues Project
Reporter, NCCUSL UEVHPA 1
• • •
Major Resources
HRSA’s ESAR-VHP Legal and Regulatory Issues Report and Checklist (May 2006) Center’s Advanced Tool Kit (February 2007) Center’s Hurricanes Katrina and Rita Tool Kit (February 2006)
Available at: www.publichealthlaw.net/Research/Affprojects.htm
2 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
Major Topical Areas
1) Declaration of State of Emergency or Public Health Emergency 2) Regulation of Professionals - Licensing, Credentialing, and Privileging 3) Civil Liability, Immunity, and Indemnification 4) Workers’ Compensation 5) Criminal Liability 3 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
Assessing the Legal Environment in Emergencies
• Laws pervade emergency responses at every level of government : • They determine what constitutes a public health or other emergency • They help create the infrastructure through which emergencies are detected, prevented, and addressed • They authorize the performance (or nonperformance) of various emergency responses by a host of actors • They determine the extent of responsibility for potential or actual harms that arise during emergencies The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
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Emergency Declarations
Before 9/11: Focus of existing state legal infrastructures on general emergency responses “All hazards” or “disasters” approach After 9/11: Reforms of emergency response laws by many states to address “public health emergencies” Based in part on the Center’s Model State Emergency Health Powers Act (MSEHPA) 5 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
Emergency Declarations
Once an emergency has been declared, the legal landscape changes .
The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
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Emergency Declarations
How the legal landscape changes depends on the type of emergency declared The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
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Multiple Levels of Emergency Declarations
Federal State Local Emergency or Disaster Public Health Emergency Emergency or Disaster Public Health Emergency “FEMA” Emergency “HHS” Public Health Emergency
8 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
Multiple Types of Emergencies -
Federal
• Emergency or Disaster – via the federal Robert T. Stafford Disaster Relief and Emergency Assistance Act • Public Health Emergency – via the Public Health Service Act (as amended by the PH Improvement Act of 2000) and the Pandemic and All-Hazards Preparedness Act [PAHPA] which: • centralizes preparedness response efforts within DHHS; • requires new evidence-based objectives for state and local public health partners; and • focuses on improving medical surge capacities through the use of volunteer health personnel. The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
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States That Define “Emergency”
AK HI WA OR ID CA NV UT The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
AZ MT WY NM
“Emergency” or similar term defined in state statutes
CO 10 ND SD NE KS TX OK VT NH ME MN IA MO AR WI IL MS MI IN KY OH PA WV VA NY NJ DE MA CT RI MD DC NC TN SC AL GA LA FL PR -
(Puerto Rico)
VI -
(U.S. Virgin Islands)
“Emergency” Defined - Florida
“
Emergency
" is defined as “any occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, which results or may result in substantial injury or harm to the population or substantial damage to or loss of property.” F.S.A. § 252.34(3) (2005).
11 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
States That Define “Disaster”
AK HI WA OR ID CA NV UT The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
AZ
“Disaster” or similar term defined in state statutes
MT WY CO NM 12 ND SD NE KS TX OK VT NH ME MN IA MO AR WI IL MS MI IN KY OH PA WV VA NY NJ DE MA CT RI MD DC NC TN SC AL GA LA FL PR -
(Puerto Rico)
VI -
(U.S. Virgin Islands)
“Disaster” Defined -
West Virginia
“
Disaster
" is defined as "the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or man-made cause, including fire, flood, earthquake, wind, snow, storm, chemical or oil spill or other water or soil contamination, epidemic , air contamination, blight, drought, infestation or other public calamity requiring emergency action." W. Va. Code. § 15-5-2(h) (1990).
The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
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States That Define “Public Health Emergency”
AK HI WA OR ID CA NV UT AZ
“Public health emergency” or similar term defined in state statutes
The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
MT WY CO NM 14 ND SD NE KS TX OK VT NH ME MN IA MO AR WI IL MS MI IN KY OH PA WV VA NY NJ DE MA CT RI MD DC NC TN SC AL GA LA FL PR -
(Puerto Rico)
VI -
(U.S. Virgin Islands)
“Public Health Emergency” Defined - MSEHPA
• “Public health emergency:” An occurrence or imminent threat of an illness or health condition that (1) is believed to be caused by any of the following:
Bioterrorism
Natural disaster
Appearance of a novel or previously controlled or eradicated infectious agent or biological toxin
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Chemical attack or accidental release Nuclear attack or
accident;
and
Model State Emergency Health Powers Act (MSEHPA)
(2) poses a high probability of any of the following harms occurring in a large number of the affected population: Death Serious or long-term disability Widespread exposure to infectious or toxic agent posing significant risk of substantial future harm 16 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
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Public Health Emergency Declaration
Individuals are bestowed special protections Government is vested with specific powers to facilitate emergency responses State licensure requirements may be waived The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
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Responders may be protected from civil liability 17
States That Define “Public Health Emergency” and “Emergency” or “Disaster” AK HI WA OR ID CA NV UT The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
AZ
defined in state statutes
MT WY CO NM
[“Emergency” or “disaster”] and “public health emergency”
18 ND SD NE KS TX OK VT NH ME MN IA MO AR WI IL MS MI IN KY OH PA WV VA NY NJ DE MA CT RI MD DC NC TN SC AL GA LA FL PR -
(Puerto Rico)
VI -
(U.S. Virgin Islands)
Dilemmas of Dual Declarations
• Triggering of distinct powers and responsibilities • Assignments of powers to different governmental agencies (e.g., public health agency vs. emergency management agency) lead to overlapping priorities • Widely divergent responses and decisions on key issues 19 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
Multiple Levels of Emergency Declarations
Federal “DHHS” public health emergency Federal “FEMA” emergency State public health emergency State emergency or disaster Local public health emergency Local emergency or disaster VHP deployment, uses, authorities, liabilities, immunities, protections from harm vary (and those with the answers) depend on the declared emergency 20 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
Regulation of Volunteer Professionals
Essential question of licensure portability: When can volunteer health professionals practice across state lines?
21 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
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Regulation of Professionals
• When can volunteer health professionals practice across state lines?
Emergency Declarations and other laws often provide for portability of licensure, certification, and credentialing for some volunteer responders. Some volunteers may have increased portability under state-level agreements like
EMAC
Other non-emergency reciprocity agreements may apply 22 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
Civil Liability
• Major questions: What is civil liability?
Who may face civil liability?
What types of actions are subject to civil liability?
What legal protections from civil liability are in place?
23 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
APHA Survey on Volunteer Health Practitioner Legal Issues
Civil Lawsuits
– As a potential volunteer, how important to you is your immunity from civil lawsuits whether to volunteer during emergencies?
50% 40% 30% 35.6% 20% 25% 10% 0% 5.5% Not Important
The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
Somewhat Important
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Important 69.4% 33.8% Essential Data as of October 5, 2006
Civil Liability
• What is civil liability? Civil liability is the potential responsibility that a person or institution may owe for their actions, or failures to act, that result in injuries or losses to others.
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Civil Liability
• Who may face civil liability? Volunteers Health care entities that provide volunteers Health care entities that accept volunteers Persons or entities responsible for registration systems 26 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
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Civil Liability
• Legal theories: Negligence Intentional torts Privacy Misrepresentation Discrimination 27 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
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Civil Liability
Liability Risks to Volunteers, Hospitals, and Others The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
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Civil Liability Protections
Umbrella of Liability Coverage State VPA Federal VPA EMAC Indemnification Good Samaritan Acts State EHPA JCAHO Standards/ Policies & Practices Mutual Aid Agreements MOUs Insurance Coverage
29 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
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Civil Liability - Volunteers
• Emergency statutes:
Center’s
Model State Emergency Health Powers Act (MSEHPA)
Out-of-state emergency health care providers “shall not be held liable for any civil damages as a result of medical care or treatment related to the response to the public health emergency” 30 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
APHA Survey on Volunteer Health Practitioner Legal Issues
Protection from Harm
– As a potential volunteer, how important to you is your protection from harms (e.g. physical or mental injuries) incurred while performing services consistent with the scope of your volunteer position though benefits akin to worker’s compensation?
74.1% 50% 40% 44.7% 30% 29.4% 20% 21% 10% 0% 4.8% Not Important
The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
CDC Collaborating Center Promoting Health through Law WHO/PAHO Collaborating Center on Public Health Law and Human Rights
Somewhat Important
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Important Essential Data as of October 5, 2006
Protection of VHPs from Harms Workers’ Compensation
• Key Questions: Who is an employee for the purposes of workers’ compensation?
– not typically VHPs Who is the employer of volunteers?
Their host? Their existing employer? Government? NGOs?
When is a volunteer acting within the scope of her employment?
– a key to workers’ comp coverage When is a volunteer “injured” in the course of emergency responses?
Consider disease outbreaks The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
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Criminal Liability
• Volunteer criminal responsibility varies under federal or state laws • Statutory provisions that protect individuals from civil liability do not typically protect persons from criminal liability • Employer may face vicarious criminal liability for criminal acts of employees/volunteers, though this risk is minimal 33 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
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Conclusion
•
For more information about the Center or its ESAR-VHP Legal and Regulatory Issues project, please contact me or visit our website at:
www.publichealthlaw.net/Research/Affprojects.htm
• James G. Hodge, Jr., [email protected]
P.I. •
Thank you
34 The Center for Law & the Public’s Health at Georgetown & Johns Hopkins Universities
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