Transcript LIABILITY ISSUES

LIABILITY
CONSIDERATIONS FOR
VOLUNTEERS
Randi Wind Milsap
General Counsel, WI Dept of Military
Affairs
[email protected]
RISKY BUSINESS?
TYPES OF VOLUNTEERS
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STATE AGENCY VOLUNTEER
LOCAL UNIT OF GOVERNMENT
VOLUNTEER
FEDERAL VOLUNTEER
PROVIDER OF EQUIPMENT OR
SERVICES VOLUNTEER
“GOOD SAMARITAN”
STATE GOVERNMENT
VOLUNTEER
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LABOR MAY NOT BE COMPENSATED
ALLOWS FOR REIMBURSEMENT OF:
– TRAVEL, LODGING & MEALS
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MUST REGISTER OR PRE-REGISTER
IN WRITING
GOOD FAITH ACTS OR OMISSIONS
COVERED
STATE GOVERNMENT
VOLUNTEER (con’t.)
WORKERS COMP.
 COVERED AS STATE
EMPLOYEE
 INCLUDES
TRAINING
ACTIVITIES
 NO CAP IN
AMOUNT PAID
LIABILITY
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COVERED AS STATE
EMPLOYEE FOR ANY
CLAIM RELATED TO
ASSISTANCE
PROVIDED
RECKLESS, WANTON,
OR INTENTIONAL
ACTS/OMISSIONS NOT
COVERED
LOCAL UNIT OF
GOVERNMENT VOLUNTEER
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LABOR MAY NOT BE COMPENSATED
ALLOWS FOR REIMBURSEMENT OF:
– TRAVEL, LODGING & MEALS
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MUST REGISTER OR PRE-REGISTER
IN WRITING
GOOD FAITH ACTS OR OMISSIONS
COVERED
LOCAL GOV’T VOLUNTEER
WORKERS COMP.
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COVERED AS
EMPLOYEE OF UNIT
OF GOV’T FOR WHICH
REGISTERED IN
WRITING
INCLUDES TRAINING
ACTIVITIES
REIMBURSED FOR
EXCESS OF $1 PER
CAPITA PER EVENT
LIABILITY
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COVERED AS
EMPLOYEE OF UNIT
OF GOV’T FOR ANY
CLAIM RELATED TO
ASSISTANCE
PROVIDED
RECKLESS, WANTON,
OR INTENTIONAL
ACTS/OMISSIONS NOT
COVERED
HOW DO I REGISTER IN
WRITING?
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VOLUNTEER SIGN-IN SHEETS
– MINIMAL CRITERIA
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PRE-REGISTRATION
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HAM RADIO LOGS
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DISPATCH LOGS
FEDERAL GOVERNMENT
VOLUNTEER
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FEDERAL VOLUNTEER
PROTECTION ACT OF 1997 (VPA)
– CIVIL IMMUNITY FOR VOLUNTEERS
SERVING NONPROFIT ORGANIZATIONS
OR GOVERNMENT ENTITIES FOR ACTS
AND OMISSIONS
VPA VOLUNTEER
COVERAGE
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PROTECTS VOLUNTEER WHO:
– PERFORMS OR DIRECTS SERVICES
– VOLUNTEERS FOR NONPROFIT OR
GOVERNMENTAL ORGANIZATIONS
– RECEIVES NO COMPENSATION OR
ANYTHING VALUING MORE THAN
$50/MO OR $600/YR
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REASONABLE REIMBURSEMENT FOR
EXPENSES ARE ALLOWED
VPA COVERAGE
CONDITIONS
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VOLUNTEER ACTING WITHIN SCOPE OF
RESPONSIBILITIES AT TIME OF
ACT/OMISSION
VOLUNTEER PROPERLY LICENSED,
CERTIFIED OR AUTHORIZED TO ACT
NO WILLFUL, CRIMINAL OR RECKLESS
MISCONDUCT
HARM NOT CAUSED BY OPERATING A
VEHICLE WHERE STATE REQUIRES
LICENSURE
INTERACTION BETWEEN
STATE AND FEDERAL LAW
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FEDERAL LAW PREEMPTS STATE LAW
TO THE EXTENT LAW IS
INCONSISTENT
DOES NOT PREEMPT STATE LAW
WHERE STATE PROVIDES
ADDITIONAL PROTECTION TO
VOLUNTEERS
BOTTOM LINE:
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STATE AND FEDERAL VOLUNTEER
PROTECTION LAW DOES NOT MEAN
THAT VOLUNTEERS CANNOT BE SUED
VOLUNTEERS ARE LIABLE FOR
CRIMINAL ACTIONS
PROVIDERS OF EQUIPMENT
OR SERVICES VOLUNTEER
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CIVIL LIABILITY IMMUNITY FOR DEATH OR
INJURY TO PERSONS OR PROPERTY
DAMAGE
APPLIES TO ACTS OR OMISSIONS
ALSO COVERS EQUIPMENT, MATERIALS,
FACILITIES & LABOR FURNISHED
DOES NOT COVER RECKLESS, WANTON, OR
INTENTIONAL MISCONDUCT
NO INDEMNIFICATION
PROVIDERS OF EQUIPMENT
OR SERVICES VOLUNTEER
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CIVIL IMMUNITY CONTINGENT ON:
– ACTIONS TAKEN UNDER DIRECTION OF
GOVERNOR
 ADJUTANT GENERAL
 GOVERNING BODY, CHIEF OR ACTING CHIEF
EXEC. OFFICER OR HEAD OF EM OF COUNTY,
TOWN, MUNICIPALITY OR TRIBE
 DHS (IF LEAD AGENCY)
 A LOCAL HEALTH DEPT AS AGENT OF DHS
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PROVIDERS OF EQUIPMENT
OR SERVICES VOLUNTEER
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AND ACTIONS TAKEN ARE IN
RESPONSE TO:
– ENEMY ACTION, OR
– A DISASTER, OR
– FEDERALLY DECLARED STATE OF
EMERGENCY, OR
– STATE OF EMERGENCY DECLARED BY
GOVERNOR
GOOD SAMARITAN LAW
§845.48 (1) Wis. Stats.
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CIVIL LIABILITY IMMUNITY
APPLIES TO PERSON WHO RENDERS
“EMERGENCY CARE” AT SCENE OF
EMERGENCY IN GOOD FAITH
APPLIES TO ACTS OR OMISSIONS
DOES NOT COVER RECKLESS,
WANTON OR INTENTIONAL CONDUCT
“GOOD SAM”
LIMITATIONS
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DOES NOT APPLY TO EMPLOYEES
TRAINED IN HEALTHCARE OR HEALTH
CARE PROFESSIONALS IF:
– EMERGENCY CARE RENDERED FOR
COMPENSATION AND WITHIN SCOPE OF
USUAL AND CUSTOMARY EMPLOYMENT
– PROFESSIONAL “BENEFIT”
“GOOD SAM” EMERGENCY
CARE RULING
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MUELLER v. McMILLIAN WARNER
INSURANCE CO.
REFERS TO INITIAL EVALUATION AND
TREATMENT OF AN INJURED PERSON
UNTIL CARE CAN BE TRANSFERRED
TO MEDICAL PROFESSIONALS
HOW DOES HIPAA APPLY
TO A VOLUNTEER?
HIPAA
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ARE YOU A “COVERED ENTITY” UNDER HIPAA?
– NO, UNLESS YOU ARE REPRESENTING OR ACTING AS AN
EMPLOYEE OF A HOSPITAL, HEALTH CARE
CLEARINGHOUSE OR A HEALTH CARE
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WRONGFUL DISCLOSURE OF INDIVIDUALLY
IDENTIFIABLE HEALTH INFORMATION
– IF YOU KNOWINGLY USE OR CAUSE TO BE USED
INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION
YOU CAN BE PUNISHED BY FINES UP TO $250,000 AND
UP TO 10 YEARS IN PRISON
– BE CAREFUL WHAT YOU SAY REGARDING HEALTH
INFORMATION!
OTHER CONSIDERATIONS
DEPLOYMENT ISSUES
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HOW ARE VOLUNTEERS ACTIVATED
OR DEPLOYED?
SELF-DEPLOYMENT?
– NOTIFICATION
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BACK-UP OR BUDDY SYSTEM?
TRANSPORTATION
ISSUES
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DO YOUR VOLUNTEERS TRANSPORT
PATIENTS/VICTIMS?
DO YOUR VOLUNTEERS DELIVER
SUPPLIES?
INSURANCE COVERAGE?
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PERSONAL? ORGANIZATION?
DO VOLUNTEERS DRIVE IN
HAZARDOUS CONDITIONS?
TRAINING ISSUES
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ARE YOUR VOLUNTEERS TRAINED TO
PERFORM SPECIALIZED TASKS?
DO YOU SUSPECT THAT YOUR
VOLUNTEERS ARE PERFORMING
TASKS FOR WHICH THEY ARE NOT
TRAINED?
DO YOU HAVE SAFETY BRIEFINGS?
AGE LIMITATIONS?
RISK MANAGEMENT
BEST PRACTICES
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HELPS REDUCE LIABILITY
WHAT DO YOU PROVIDE?
– SPECIALIZED TRAINING
– SPECIAL EQUIPMENT
– SPECIAL GEAR AND CLOTHING
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ARE LISTS OF VOLUNTEERS
MAINTAINED AND KEPT CURRENT?
RISK ASSESSMENTS
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DO YOU PRE-QUALIFY VOLUNTEERS?
VOLUNTEER REGISTRATION FORMS?
– ID SKILLS?
– ID SPECIAL TRAINING OR LICENSES
HELD?
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IMMUNIZATION INFORMATION?
RELEASE OF LIABILITY STATEMENTS?
– PERSONAL AND FOR PROPERTY OWNERS
BACKGROUND CHECKS
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AN IMPORTANT CONSIDERATION
DEVELOP A WRITTEN POLICY
PREPARED IN ADVANCE
REDUCES EXPOSURE TO HARMING
THE VULNERABLE
BUILDS CREDIBILITY OF YOUR
ORGANIZATION
SEXUAL OFFENDER REGISTRIES?
CREDENTIALING
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DOES YOUR ORGANIZATION OR THE
SERVICE PROVIDED REQUIRE THAT
VOLUNTEERS MAINTAIN A LICENSE
OR CERTIFICATION?
WHO ENSURES THAT LICENSE OR
CERTIFICATION ARE CURRENT?
WHO IS CUSTODIAN OF THOSE
RECORDS?
INSURANCE POLICIES
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SHOULD YOUR ORGANIZATION
MAINTAIN LIABILITY INSURANCE?
– FOR VOLUNTEER INJURIES?
– FOR DAMAGES CAUSED BY
VOLUNTEERS?
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DO YOU MAINTAIN INSURANCE
COVERAGE ON YOUR VEHICLES AND
SPECIAL EQUIPMENT?
MISCELLANEOUS
CONSIDERATIONS
VICARIOUS LIABILITY TO
MUNICIPALITIES
 WI OPEN RECORDS LAW
 INJURIES TO VOLUNTEERS
–TIMELY NOTIFICATION OF
“EMPLOYER”
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HOW CAN YOU REDUCE
LIABILITY?
EXERCISE SOUND REASONABLE
JUDGMENT
 ACT IN GOOD FAITH
 MAKE DECISIONS WITH
APPRECIATION OF LIABILITY
CONSIDERATIONS
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QUESTIONS OR
COMMENTS?
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THANK YOU FOR
YOUR TIME AND
ATTENTION!!