Transcript Slide 1

ESAR-VHP Legal and Regulatory Issues:
Focus on Local Emergency Laws
James G. Hodge, Jr., J.D., LL.M.
Professor, Johns Hopkins Bloomberg School of Public Health
Executive Director, Centers for Law & the Public’s Health: A Collaborative at
Johns Hopkins and Georgetown Universities
Evan D. Anderson, J.D.
Research Associate, Johns Hopkins Bloomberg School of Public Health
Senior Fellow, Centers for Law & the Public’s Health: A Collaborative at
Johns Hopkins and Georgetown Universities
1
Acknowledgement
The Centers for Law and the Public’s
Health would like to acknowledge the
Office of the Assistant Secretary for
Preparedness and Response
(ASPR), DHHS for its continued
support of the ESAR-VHP Legal and
Regulatory Issues Project.
2
Disclaimer
Please note that the information discussed during this
presentation does not constitute the official positions of
ASPR, nor does it include or constitute specific legal
advice.
Legal advice on the issues discussed in this
presentation is necessarily fact-specific and varies
depending upon state and local law.
Concerning specific requests for legal advice, ASPR
suggests that its grantees contact their state's Office of
the Attorney General or institutional legal counsel.
3
A Brief Timeline
•
2001: 9/11 raises issues about the deployment of VHPs
•
2002: Congress authorizes DHHS to develop ESAR-VHP
•
2004: Center asked to assess legal and regulatory issues
underlying the deployment of VHPs during emergencies
•
2006: Center releases most current version of ESAR VHP Legal
and Regulatory Issues Report (Report) addressing legal
issues related to the deployment and use of VHPs at the
state level (including a 50+ state legal survey of
various laws)
•
2008: Center asked to create an Annex to the Report to
explore the impact of local laws on the deployment of
VHPs in locally-declared emergencies
4
Major Resources
• ASPR’s ESAR-VHP Legal and Regulatory Issues Report
and Checklist – May 2006 (Revised 9/08 version forthcoming)
•
ASPR’s ESAR-VHP Legal and Regulatory Issues Report Annex:
Local Emergency Laws - 2009 (Forthcoming)
• Center’s Advanced Tool Kit - February 2007
• Hurricanes Katrina and Rita: Legal Issues Concerning VHPs
Compendium– October 2005
• Principles and Practice of Legal Triage During Public Health
Emergencies. NYU Annual Survey of American Law 2009;
64:249-292
• publichealthlaw.net/Projects/ESAR-VHP.php
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ESAR-VHP Legal Regulatory Issues Report
The ESAR-VHP Legal and Regulatory Issues
Report addresses major topical areas related
to the deployment and use of VHPs at the
state or territorial levels, including:
 Declarations of Emergency and Public Health Emergency
 Regulation of Professionals: Licensing, Credentialing
 Civil Liability, Immunity, and Indemnification
 Worker’s Compensation
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Declarations of Emergency and Public Health Emergency
•
After 9/11, many states reformed emergency laws

•
Based in part on the Center’s Model State
Emergency Health Powers Act (MSEHPA) multiple
states enact “public health emergency” laws
Dilemma of “dual declarations”

Emergency powers and legal protections may
vary under different, overlapping declarations,
leading to inconsistencies and confusion
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States That Define “Public Health Emergency” and
“Emergency” or “Disaster”
HI
WA
VT NH
AK
MT
ME
ND
MN
OR
ID
SD
WI
WY
CA
UT
AZ
PA
IA
NE
NV
IL
CO
KS
OK
NM
MO
KY
“Emergency”, “disaster”, and
“public health emergency” (or
similar terms) defined in state
Statutes - 27
WV VA
NJ
DE
MD
DC
NC
TN
AR
SC
MS
TX
OH
IN
MA
RI
CT
NY
MI
AL
GA
LA
FL
PR - (Puerto Rico)
VI - (U.S. Virgin Islands)
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Regulation of Professionals: Licensing, Credentialing
•
Emergency Declarations:

•
State Agreements:

•
Waive normal licensing laws to increase portability of
licensure
Emergency Management Assistance Compact
(EMAC)
Non-emergency Reciprocity Agreements:

Nurse Licensure Compact and Regional MOUs
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APHA Survey on Volunteer Health Practitioner Legal Issues
Civil Liability – As a potential volunteer, how important to you is your
immunity from civil lawsuits whether to volunteer during emergencies?
50%
69.4%
40%
35.6%
30%
20%
33.8%
25%
10%
0%
5.5%
Not Important
Somewhat
Important
Important
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Data as of October 5, 2006
Essential
Civil Liability, Immunity, Indemnification
• Civil Liability
• Who may face civil liability?
 Volunteers, health care entities accepting
volunteers, responses or entities
responsible for registration system
• Under what themes?
 Negligence
 Intentional torts
 Privacy
 Misrepresentation
 Discrimination
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Risks of Civil Liability
Liability Risks to Volunteers
12
Civil Liability Protections
Umbrella of Liability
Coverage
Federal
VPA
State VPA
Mutual Aid
Agreements
Good
Samaritan
Acts
State
EHPA
Indemnification
EMAC
MOUs
JCAHO
Standards/
Policies &
Practices
13
Insurance
Coverage
State-based Workers’ Compensation
• Key Questions:
 Who is an employee for the purposes of
workers’ compensation?
 Who is the employer of volunteers?
 When is a volunteer acting within the
scope of her employment?
 When is a volunteer “injured” in the
course of emergency responses?
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State-based Workers Comp Coverage
HI
WA
VT NH
AK
MT
ME
ND
MN
OR
ID
SD
WI
WY
CA
UT
AZ
PA
IA
NE
NV
IL
CO
KS
OK
NM
MO
KY
WV VA
NC
TN
AR
SC
MS
TX
OH
IN
AL
GA
LA
FL
Workers comp coverage
available for emergency
volunteers with limitations
15
MA
RI
CT
NY
MI
NJ
DE
MD
DC
ESAR-VHP Annex: Local Emergency Laws
Objective:
To assess how local laws impact the deployment and use of
VHPs during locally-declared emergencies
Methodology:
•
Survey the laws of 20 selected localities pertaining to:
 Degree of Home Rule
 Power to Declare Local States of Emergency
 Types of Emergency Declarations
 Definition of Volunteer
 Liability Protections
•
Compare and assess the impact of local laws on the
deployment of VHPs during locally-declared emergencies
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Selection of Localities
• Geographic Diversity
• Population Size
• Governmental Organization

City, County, Consolidated
City-county
• Experience with Emergencies
17
Selected Localities
Augusta
Seattle
Burlington
Billings
Rapid City
New York City
Reno
Denver
Cook County
San Francisco
Philadelphia City
Baltimore County
Oklahoma City
Little Rock
Tucson
Gwinnett County
Dallas
Laredo
New Orleans
-- 20 Selected Local Jurisdictions
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Miami
Est. Population for Selected Localities
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Governmental Status of Selected
Localities
Augusta
Seattle
Burlington
Billings
Rapid City
New York City
Reno
Philadelphia City
Denver
San Francisco
Cook County
Baltimore County
Tucson
Oklahoma City
Little Rock
Gwinnett County
Dallas
City
Laredo
New Orleans
County
Consolidated city-county
20
Miami
Governmental Status of Selected
Localities
14
3
21
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ESAR-VHP Annex: Local Emergency Laws
Assessed laws for each locality in 5 topical areas:
1. Degree of Home Rule
2. Power to Declare Local States of Emergency
3. Types of Local Emergency Declarations
4. Definition of Volunteer
5. Liability Protections
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Degree of Home Rule Among Selected Localities
Home Rule is the degree of selfWeak
5
Strong
15
government or autonomy in
internal affairs of a dependent
political unit (such as a city,
county, or consolidated citycounty).
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Localities Defining Emergency and/or Disaster
Augusta
E Seattle
Burlington
Billings
E/D
E
E/D
Rapid City
E/D
San Francisco
Reno
E
E/D
D
Cook County
Denver
Oklahoma
City
E/D
Tucson
E
-- Localities that define emergency
D
-- Localities that define disaster
Philadelphia City
Little Rock
E/D
D
E
New York City
Baltimore County
E/D
Gwinnett County
Dallas
E
E
E
E
E
New Orleans
Laredo
E/D -- Localities that define both
-- Localities that do not define emergency and/or disaster
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E/D Miami
ESAR- VHP Local Annex: Local Definitions of Emergencies
Differentiation in Definitions: Emergency and
Disaster
“Emergency”
“Disaster”
17 (85%) localities
10 (50%) localities
Broad definitions
Specific definitions
Any event threatening
public’s health or safety
Anticipating more
extreme circumstances
Burlington, VT
Cook County, IL
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“Emergency” Defined – Baltimore County, MD
“Emergency” means demand on local
government services which exceeds or
threatens to exceed the city’s response
capability or an unexpected and/or
unusual problem confronting the
community which is threatening to life or
property.
BURLINGTON, VT., CODE § 11-3(A)(2).
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Disaster Defined – Cook County, IL
“Disaster” means the occurrence or threat of widespread
or severe damage, injury or loss of life or property
resulting from any natural or technological cause,
including but not limited to fire, flood, earthquake, wind,
storm, hazardous materials spill or other water
contamination requiring emergency action to avert danger
or damage, epidemic, air contamination, blight, extended
periods of severe and inclement weather, drought,
infestation, critical shortages of essential fuels and
energy, explosion, riot, hostile military or paramilitary
action, public health emergencies, or acts of domestic
terrorism.
COOK COUNTY, IL., CODE § 26-36(A)(2008).
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Types of Local Emergencies
“Other” types of crises defined: Augusta, ME
 Disaster
 Disaster emergency
 Local emergency
 Manmade disaster
 Natural disaster
 War-caused disaster
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Local Definitions of Volunteers
• Only 2 (10%) of the localities surveyed
explicitly define the term “volunteer”
(Burlington, VT and Dallas, TX)
• Other localities have
developed alternative,
innovative approaches to
include volunteers under
liability protections
29
Local Definitions of Volunteers
•
How localities define “volunteer” implicates the
coordination of emergency response efforts and the
availability of liability protections
•
Without a clear definition of who
constitutes a “volunteer:”
 Local officials may be unsure about
whom they may deploy to address
critical threats to the public’s health
 VHPs may hesitate to respond due to uncertainty
about liability protections
30
Local Liability Protections
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Liability Protections
Three types of liability protections are
found among the selected localities:
 General Immunity
 Sovereign Immunity
 Indemnification
32
ESAR-VHP Local Annex: Principal Findings
1. Scope and Effect of Home Rule Among
Localities
2. Enhanced Preparedness Among City-County
Local Governments
3. Variation in Emergency Declarations at the
Local Level
4. Variation among Local Liability Protections
5. Innovations in Defining Volunteers
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Scope and Effect of Home Rule Among Localities
• Factors used to classify localities as having
“strong” or “weak” home rule powers:
 Degree State Constitutions allow Home Rule
 Classification of localities under state statutes
 Adoption of Home Rule charters
 How localities describe their Home Rule powers under
ordinances and Home Rule charters
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Degree of Home Rule
Augusta
Seattle
Burlington
Billings
Rapid City
New York City
Reno
Denver
San Francisco
Cook County
Philadelphia City
Baltimore County
Tucson
Oklahoma City
Little Rock
Gwinnett County
Dallas
--Strong home rule powers
Laredo
New Orleans
-- Weak home rule powers
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Miami
Scope and Effect of Home Rule Among Localities
• Degree of home rule is significantly
correlated with the provision of liability
protections at local level
• Localities with the strongest home rule
powers are more likely to provide
liability protections
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Scope and Effect of Home Rule Among Localities
9 of the 15 (60%) with strong home rule powers provide
liability protection for locally deployed VHPs
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Scope and Effect of Home Rule Among Localities
1 of the 5 (20%) localities with weak home rule powers
provide liability protection for locally-deployed VHPs
(Burlington, VT)
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Scope and Effect of Home Rule Among Localities
Take-Home Message #1
Localities with the strongest
home rule powers are more
likely to provide liability
protections in their local laws
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2009 Local Annex: Principal Findings
1. Scope and Effect of Home Rule Among
Localities
2. Enhanced Preparedness Among City-County
Local Governments
3. Variation in Emergency Declarations at the
Local Level
4. Variation among Local Liability Protections
5. Innovations in Defining Volunteers
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Enhanced Preparedness Power Among
City-County Local Governments
• Consolidated city-counties (Denver,
Philadelphia, San Francisco, New York
City) have particularly extensive
emergency preparedness laws
• All are large cities granting city officials
extensive rule and law-making powers
during declared emergencies
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Enhanced Preparedness Power Among
City-County Local Governments
Philadelphia:
Mayor can create and enforce
regulations immediately bypassing
normal administrative procedures
New York City:
During a declared emergency, the mayor
can implement “all emergency measures”
which last for the duration of the
emergency
42
Enhanced Preparedness Power Among
City-County Local Governments
Denver :
Director of Emergency Management
authorized to adopt rules and
regulations for carrying out
emergency management objectives
San Francisco:
Mayor can do whatever is
“necessary to meet the emergency”
43
Enhanced Preparedness Power Among
City-County Local Governments
Why is this important for VHPs?
• Officials may have the authority to modify liability
protections concerning VHPs in real time to meet
the demands of the emergency:
 For example, in San Francisco:
 Mayor can command the aid of as many
citizens deemed necessary, affording them
all privileges, benefits, and immunities
provided by State law for registered disaster
service workers.
San Francisco, Cal., Code § 7.60(b)(3) (2008).
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Enhanced Preparedness Power Among
City-County Local Governments
Take-Home Message #2
Consolidated City-Counties
have extensive emergency
powers that may include the
ability to provide liability
protections for VHPs in real
time.
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ESAR-VHP Local Annex: Principal Findings
1. Scope and Effect of Home Rule Among
Localities
2. Enhanced Preparedness Among City-County
Local Governments
3. Variation in Emergency Declarations at the
Local Level
4. Variations among Local Liability Protections
5. Innovations in Defining Volunteers
46
Emergency Declarations in Local Laws
18
17
16
14
12
10
10
8
6
3
4
2
0
Emergency
Disaster
47
Other
Variation in Emergency Declarations
at the Local Level
“Dual declarations” are
possible in 8 (40%) of the
surveyed localities that
define both emergency and
disaster or another crisis
48
Localities Defining Emergency and Disaster
Augusta
Burlington
E/D
E/D
E/D
Reno
E/D
Denver
Oklahoma
City
E/D
Little Rock
E/D
E/D
Gwinnett County
E/D Miami
E/D
-- Localities that define both
emergency and disaster
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Variation in Local Emergency Declarations
Variation in local emergency
declarations provides options for
specialized responses but may also
lead to complications
 Problem of “dual-declarations”
 Confusion about the scope and
application of legal protections for
VHPs
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Variation in Local Emergency Declarations
• Many local emergency definitions have
developed to address prominent local threats
to the public’s health
• Some localities have created targeted
definitions to supplement general emergency
declarations
 For example, in Philadelphia
 Mayor can declare a “general emergency”
 Dept. of Health can declare an “air pollution
emergency”
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Variation in Emergency Declarations
at the Local Level
Take-Home Message # 3
Emergency declarations vary
extensively among localities.
There is no common
platform or model for local
emergency definitions.
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ESAR-VHP Local Annex: Principal Findings
1. Scope and Effect of Home Rule Among
Localities
2. Enhanced Preparedness Among City-County
Local Governments
3. Variation in Emergency Declarations at the
Local Level
4. Variation among Local Liability Protections
5. Innovations in Defining Volunteers
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Localities Providing Liability Protections
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Variation among Local Liability Protections
• 11 (55%) of the localities surveyed provide
local liability protections
• Cities and counties understand the importance
of providing a level of liability protection for
VHPs that do not qualify for coverage under
state emergency laws
• Nevertheless, local liability laws, like state
emergency laws, vary significantly
55
Variation among Local Liability Protections
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Local Liability Protections
“General Immunity” protects covered
volunteers from any civil liability
arising from any actions taken during
emergency management or
emergency response activities.
Limitations:
• Often limited to registered VHPs
deployed by the locality
• Does not provide protection against
willful and wanton actions or gross
negligence.
57
Local Liability Protections
Neither the city nor its officers, agents, representatives,
or employees, nor any emergency management
volunteer, who is, in good faith, carrying out, complying
with or attempting to comply with any order, rule, or
regulation promulgated pursuant to this chapter, shall be
liable for any damage sustained to persons or property
as the result of his or her actions, unless the actions
taken or not taken consisted of willful misconduct, gross
negligence, or bad faith.
DALLAS CITY, TEX., CODE § 14B-12.
58
Local Liability Protections
“Sovereign Immunity” refers to the
principle that the government
(federal, state, and sometimes local)
and its employee are entitled to
liability protection for acts taken in
the course of government business.
Limitations:
• Only applies to employees of locality
or those granted the privileges and
immunities of the locality employees
• Might not cover willful, wanton and
gross negligence
59
Local Liability Protections
All persons, other than officers and employees
of the City and County volunteering services
pursuant to the provisions of this Chapter and
the Emergency Plan. . . have the same
immunities as officers and employees of the
City and County performing similar duties.
SAN FRAN., CAL., ADMINISTRATIVE CODE § 7.16 (2008).
60
Local Liability Protections
“Indemnification” means that a city or county will
provide legal representation in any lawsuit
against a covered VHP and pay resulting costs.
Limitations:
• Requires participation by
VHP in trial
• Might not cover willful,
wanton and gross
negligence
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Local Liability Protections
“To encourage the participation of volunteers in carrying out
City projects and activities for the public, the City shall
appear and defend a claim or action made against a
volunteer personally and pay the claim if judgment is
rendered against the volunteer . . . .”
The following conditions must be met:
•
•
•
•
Claim arises in scope of voluntary acts
Volunteer is registered
Volunteer is willing to share information; and
Volunteer cooperates with defense.
SEATTLE, WASH CODE § 4.64.100.
62
Local Liability Protections
Take-Home Message # 4
In many instances, localities
provide liability protections
for locally deployed VHPs.
The types of protections
vary.
63
2009 Local Annex: Principal Findings
1. Scope and Effect of Home Rule Among
Localities
2. Enhanced Preparedness Among City-County
Local Governments
3. Variation in Emergency Declarations at the
Local Level
4. Variation among Local Liability Protections
5. Innovations in Defining Volunteers
64
Local Definitions of Volunteers
• Only 2 (10%) of the localities
surveyed explicitly define the
term “volunteer” (Burlington, VT
and Dallas, TX)
• Yet, localities have found some
innovative ways to define
volunteers and to include them
under liability coverage
65
Local Definitions of Volunteers
• Some localities define terms similar to
volunteer which could encompass VHPs
 Little Rock, AK: “qualified emergency
services workers”
• Other local provisions may provide the same
benefits for VHPs without clearly defining the
term volunteer
 Baltimore County, MD: “Volunteer workers”
included in definition of “county employee”
66
State Definitions of Local Volunteers
•
In some instances, liability protections apply to locally
deployed VHPs through state laws
 Under New York State law, all localities must
indemnify and defend their employees.
McKinney's New York General Municipal Law § 50-k(2); k(3).
 Locality “employees” are defined under New York
State law to include “a volunteer expressly
authorized to participate in a city sponsored
volunteer program ”
McKinney's General Municipal Law § 50-k (1)(e).
67
State Definitions of Local Volunteers
 Tucson, AZ: local laws do not define volunteer
 However, Arizona state law defines “emergency worker”
to include “any person who is registered, whether
temporary or permanent, paid or volunteer, with a local
or state emergency management organization and
certified by the local or state emergency management
organization.”
 Arizona provides emergency workers with the same
immunities and disability workers' compensation
benefits as officers, agents and employees of the state
and its political subdivisions performing similar work
A.R.S. § 26-314(C); A.R.S. § 26-301.
68
Local Definitions of Volunteers
Take-Home Message # 5
Some localities feature
innovative ways to
define “volunteers” to
potentially provide
volunteers with liability
protections.
69
Conclusions
• Questions, comments, thoughts?
• For more information, please visit our website:
http://www.publichealthlaw.net/Projects/ESAR-VHP.php
or contact us at:
James G. Hodge, Jr., – [email protected]
Evan D. Anderson - [email protected]
• Special thanks to Craig T. Jaques, Center
Researcher, for his assistance with this presentation
70