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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
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
2
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 RitaTool Kit (February 2006)
Available at:
www.publichealthlaw.net/Research/Affprojects.htm
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
3
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
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
4
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 Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
5
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)
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
6
Emergency Declarations
Once an emergency has
been declared, the legal
landscape changes.
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
7
Emergency Declarations
How the legal landscape changes depends on the type of emergency declared
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
8
Multiple Levels of Emergency Declarations
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
LocalLocal
StateState
FederalFederal
Emergency
or
Disaster
Public
Health
Emergency
Emergency
or
Disaster
Public
Health
Emergency
“FEMA”
Emergency
“HHS”
Public
Health
Emergency
9
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 Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
10
States That Define “Emergency”
HIHIAKAK
CACA
OROR
WAWA
IDID
MTMT
TXTX
SDSDWYWY
NVNV
OKOK
KSKS
NENE
COCO
NMNMAZAZ
UTUT
NDND
SCSC
MNMN
WIWI
IAIA
MOMO
ARAR
LALA
VAVA
NCNC
GAGA
FLFL
ALALMSMS
ILILWVWV
KYKY
TNTN
NYNY
PAPA
ININ OHOH
MIMI
DEDENJNJ
CTCTRIRI
MAMA
MEME
DCDCMDMD
NHNHVTVT
PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)
““Emergency” or similar termEmergency” or similar termdefined in state statutesdefined in state statutes
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
11
“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).
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
12
States That Define “Disaster”
HIHIAKAK
CACA
OROR
WAWA
IDID
MTMT
TXTX
SDSDWYWY
NVNV
OKOK
KSKS
NENE
COCO
NMNMAZAZ
UTUT
NDND
SCSC
MNMN
WIWI
IAIA
MOMO
ARAR
LALA
VAVA
NCNC
GAGA
FLFL
ALALMSMS
ILILWVWV
KYKY
TNTN
NYNY
PAPA
ININ OHOH
MIMI
DEDENJNJ
CTCTRIRI
MAMA
MEME
DCDCMDMD
NHNHVTVT
PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)
““Disaster” or similar term Disaster” or similar term defined in state statutesdefined in state statutes
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
13
“Disaster” Defined - West Virginia
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
“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).
14
States That Define “Public Health Emergency”
HIHIAKAK
CACA
OROR
WAWA
IDID
MTMT
TXTX
SDSDWYWY
NVNV
OKOK
KSKS
NENE
COCO
NMNMAZAZ
UTUT
NDND
SCSC
MNMN
WIWI
IAIA
MOMO
ARAR
LALA
VAVA
NCNC
GAGA
FLFL
ALALMSMS
ILILWVWV
KYKY
TNTN
NYNY
PAPA
ININ OHOH
MIMI
DEDENJNJ
CTCTRIRI
MAMA
MEME
DCDCMDMD
NHNHVTVT
PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)
““Public health emergency” Public health emergency” or similar term defined in or similar term defined in state statutesstate statutes
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
15
“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
Appearance of a novel or previously controlled or eradicated infectious agent or biological toxin
Natural disaster
Chemical attack or accidental release
Nuclear attack or accident; and
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
16
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
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
17
Public Health Emergency Declaration
Government is vested with specific powers to facilitate emergency responses
Individuals are bestowed special protections
State licensure requirements may be waived
Responders may be protected from civil liability
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
18
States That Define “Public Health Emergency” and “Emergency” or “Disaster”
HIHIAKAK
CACA
OROR
WAWA
IDID
MTMT
TXTX
SDSDWYWY
NVNV
OKOK
KSKS
NENE
COCO
NMNMAZAZ
UTUT
NDND
SCSC
MNMN
WIWI
IAIA
MOMO
ARAR
LALA
VAVA
NCNC
GAGA
FLFL
ALALMSMS
ILILWVWV
KYKY
TNTN
NYNY
PAPA
ININ OHOH
MIMI
DEDENJNJ
CTCTRIRI
MAMA
MEME
DCDCMDMD
NHNHVTVT
PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)
[“Emergency” or “disaster”] [“Emergency” or “disaster”] and “public health emergency” and “public health emergency” defined in state statutesdefined in state statutes
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
19
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
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
20
Multiple Levels of Emergency Declarations
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
Local emergency or disaster
Local public health emergency
State emergency or disaster
State public health emergency
Federal “FEMA” emergency
Federal “DHHS” public health emergency
VHP deployment, uses, authorities, liabilities, immunities, protections from harm vary (and those with
the answers) depend on the declared emergency
21
Regulation of Volunteer Professionals
Essential question of licensure portability:
When can volunteer health professionals practice across state lines?
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
22
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
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
23
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?
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
24
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?
0%
10%
20%
30%
40%
50%
Not Important SomewhatImportant
Important Essential
5.5%
25%
35.6% 33.8%
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
Data as of October 5, 2006
69.4%
25
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.
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
26
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
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
27
Civil Liability
• Legal theories:
Negligence
Intentional torts
Privacy
Misrepresentation
Discrimination
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
28
Civil Liability
Liability Risks to Volunteers, Hospitals, and Others
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
29
Umbrella of Liability Coverage
Mutual Aid Agreements
Good Samaritan
Acts
Federal VPA
State VPA
EMACIndemnification
JCAHO Standards/Policies & Practices
MOUs
Insurance Coverage
State EHPA
Civil Liability Protections
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
30
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”
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
31
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?
0%
10%
20%
30%
40%
50%
Not Important SomewhatImportant
Important Essential
4.8%
21%
44.7%
29.4%
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
Data as of October 5, 2006
74.1%
32
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 Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
33
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
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights
34
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., P.I. - [email protected]
• Thank you
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The Center for Law & the Public’s Healthat Georgetown& Johns Hopkins Universities
CDC Collaborating Center Promoting Health through LawWHO/PAHO Collaborating Center on Public Health Law and Human Rights