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LIABILITY CONSIDERATIONS FOR VOLUNTEERS

LIABILITY CONSIDERATIONS FOR VOLUNTEERS. Randi Wind Milsap General Counsel, WI Dept of Military Affairs randi.milsap@wisconsin.gov. RISKY BUSINESS?. TYPES OF VOLUNTEERS. STATE AGENCY VOLUNTEER LOCAL UNIT OF GOVERNMENT VOLUNTEER FEDERAL VOLUNTEER PROVIDER OF EQUIPMENT OR SERVICES VOLUNTEER

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LIABILITY CONSIDERATIONS FOR VOLUNTEERS

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  1. LIABILITY CONSIDERATIONS FOR VOLUNTEERS Randi Wind Milsap General Counsel, WI Dept of Military Affairs randi.milsap@wisconsin.gov

  2. RISKY BUSINESS?

  3. TYPES OF VOLUNTEERS • STATE AGENCY VOLUNTEER • LOCAL UNIT OF GOVERNMENT VOLUNTEER • FEDERAL VOLUNTEER • PROVIDER OF EQUIPMENT OR SERVICES VOLUNTEER • “GOOD SAMARITAN”

  4. STATE GOVERNMENT VOLUNTEER • LABOR MAY NOT BE COMPENSATED • ALLOWS FOR REIMBURSEMENT OF: • TRAVEL, LODGING & MEALS • MUST REGISTER OR PRE-REGISTER IN WRITING • GOOD FAITH ACTS OR OMISSIONS COVERED

  5. WORKERS COMP. COVERED AS STATE EMPLOYEE INCLUDES TRAINING ACTIVITIES NO CAP IN AMOUNT PAID LIABILITY COVERED AS STATE EMPLOYEE FOR ANY CLAIM RELATED TO ASSISTANCE PROVIDED RECKLESS, WANTON, OR INTENTIONAL ACTS/OMISSIONS NOT COVERED STATE GOVERNMENT VOLUNTEER (con’t.)

  6. LOCAL UNIT OF GOVERNMENT VOLUNTEER • LABOR MAY NOT BE COMPENSATED • ALLOWS FOR REIMBURSEMENT OF: • TRAVEL, LODGING & MEALS • MUST REGISTER OR PRE-REGISTER IN WRITING • GOOD FAITH ACTS OR OMISSIONS COVERED

  7. WORKERS COMP. 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 COVERED AS EMPLOYEE OF UNIT OF GOV’T FOR ANY CLAIM RELATED TO ASSISTANCE PROVIDED RECKLESS, WANTON, OR INTENTIONAL ACTS/OMISSIONS NOT COVERED LOCAL GOV’T VOLUNTEER

  8. HOW DO I REGISTER IN WRITING? • VOLUNTEER SIGN-IN SHEETS • MINIMAL CRITERIA • PRE-REGISTRATION • HAM RADIO LOGS • DISPATCH LOGS

  9. FEDERAL GOVERNMENT VOLUNTEER • FEDERAL VOLUNTEER PROTECTION ACT OF 1997 (VPA) • CIVIL IMMUNITY FOR VOLUNTEERS SERVING NONPROFIT ORGANIZATIONS OR GOVERNMENT ENTITIES FOR ACTS AND OMISSIONS

  10. VPA VOLUNTEER COVERAGE • 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 • REASONABLE REIMBURSEMENT FOR EXPENSES ARE ALLOWED

  11. VPA COVERAGE CONDITIONS • 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

  12. INTERACTION BETWEEN STATE AND FEDERAL LAW • FEDERAL LAW PREEMPTS STATE LAW TO THE EXTENT LAW IS INCONSISTENT • DOES NOT PREEMPT STATE LAW WHERE STATE PROVIDES ADDITIONAL PROTECTION TO VOLUNTEERS

  13. BOTTOM LINE: • STATE AND FEDERAL VOLUNTEER PROTECTION LAW DOES NOT MEAN THAT VOLUNTEERS CANNOT BE SUED • VOLUNTEERS ARE LIABLE FOR CRIMINAL ACTIONS

  14. PROVIDERS OF EQUIPMENT OR SERVICES VOLUNTEER • 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

  15. PROVIDERS OF EQUIPMENT OR SERVICES VOLUNTEER • 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

  16. PROVIDERS OF EQUIPMENT OR SERVICES VOLUNTEER • 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

  17. GOOD SAMARITAN LAW §845.48 (1) Wis. Stats. • 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

  18. “GOOD SAM” LIMITATIONS • 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”

  19. “GOOD SAM” EMERGENCY CARE RULING • MUELLER v. McMILLIAN WARNER INSURANCE CO. • REFERS TO INITIAL EVALUATION AND TREATMENT OF AN INJURED PERSON UNTIL CARE CAN BE TRANSFERRED TO MEDICAL PROFESSIONALS

  20. HOW DOES HIPAA APPLY TO A VOLUNTEER?

  21. HIPAA • 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 • 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!

  22. OTHER CONSIDERATIONS

  23. DEPLOYMENT ISSUES • HOW ARE VOLUNTEERS ACTIVATED OR DEPLOYED? • SELF-DEPLOYMENT? • NOTIFICATION • BACK-UP OR BUDDY SYSTEM?

  24. TRANSPORTATION ISSUES • DO YOUR VOLUNTEERS TRANSPORT PATIENTS/VICTIMS? • DO YOUR VOLUNTEERS DELIVER SUPPLIES? • INSURANCE COVERAGE? • PERSONAL? ORGANIZATION? • DO VOLUNTEERS DRIVE IN HAZARDOUS CONDITIONS?

  25. TRAINING ISSUES • 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?

  26. RISK MANAGEMENT BEST PRACTICES • HELPS REDUCE LIABILITY • WHAT DO YOU PROVIDE? • SPECIALIZED TRAINING • SPECIAL EQUIPMENT • SPECIAL GEAR AND CLOTHING • ARE LISTS OF VOLUNTEERS MAINTAINED AND KEPT CURRENT?

  27. RISK ASSESSMENTS • DO YOU PRE-QUALIFY VOLUNTEERS? • VOLUNTEER REGISTRATION FORMS? • ID SKILLS? • ID SPECIAL TRAINING OR LICENSES HELD? • IMMUNIZATION INFORMATION? • RELEASE OF LIABILITY STATEMENTS? • PERSONAL AND FOR PROPERTY OWNERS

  28. BACKGROUND CHECKS • AN IMPORTANT CONSIDERATION • DEVELOP A WRITTEN POLICY • PREPARED IN ADVANCE • REDUCES EXPOSURE TO HARMING THE VULNERABLE • BUILDS CREDIBILITY OF YOUR ORGANIZATION • SEXUAL OFFENDER REGISTRIES?

  29. CREDENTIALING • 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?

  30. INSURANCE POLICIES • SHOULD YOUR ORGANIZATION MAINTAIN LIABILITY INSURANCE? • FOR VOLUNTEER INJURIES? • FOR DAMAGES CAUSED BY VOLUNTEERS? • DO YOU MAINTAIN INSURANCE COVERAGE ON YOUR VEHICLES AND SPECIAL EQUIPMENT?

  31. MISCELLANEOUS CONSIDERATIONS • VICARIOUS LIABILITY TO MUNICIPALITIES • WI OPEN RECORDS LAW • INJURIES TO VOLUNTEERS • TIMELY NOTIFICATION OF “EMPLOYER”

  32. HOW CAN YOU REDUCE LIABILITY? • EXERCISE SOUND REASONABLE JUDGMENT • ACT IN GOOD FAITH • MAKE DECISIONS WITH APPRECIATION OF LIABILITY CONSIDERATIONS

  33. QUESTIONS OR COMMENTS? • THANK YOU FOR YOUR TIME AND ATTENTION!!

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