VHP Legal and Regulatory Issues in Real-time during the Gulf Coast Hurricane Emergencies

1. VHP Legal and Regulatory Issues in Real-time during the Gulf Coast Hurricane Emergencies James G. Hodge, Jr., J.D., LL.M. Lance A. Gable, J.D., M.P.H. Principal Investigator, HRSA ESAR-VHP Legal Project Director, HRSA ESAR-VHP Legal and Regulatory Issues Project and Regulatory Issues Project Associate Professor, Johns Hopkins Bloomberg School of PH Executive Director, Center for Law & the Public’s Senior Fellow, Center for Law & the Public’s Health at Georgetown and Johns Hopkins Health at Georgetown and Johns Hopkins Universities Universities

2. Principal Objectives • Assessing the Legal Environment During Emergencies • The Center’s Real-time Responses to Hurricanes Katrina, Rita, and Wilma • Specific Issues for Workshop Discussion • Legal authority to deploy VHPs • Multiple levels of emergency declarations • EMAC limitations • “Federalizing” VHPs • Questions, Comments, Thought for Discussion

3. Assessing the Legal Environment in Emergencies

4. Assessing the Legal Environment in Emergencies

5. Assessing the Legal Environment in Emergencies

6. Assessing the Legal Environment in Emergencies

7. Assessing the Legal Environment in Emergencies Emergency-based Legal Triage

8. Assessing the Legal Environment – Hurricane Katrina • Invocation of Federal and State Emergency Declarations • Interjurisdictional Coordination Among Federal, State, and Local Governments • Capacity to Utilize Volunteer Health Personnel and Others • Actual and Anticipated Harms to Displaced Persons and Those Assisting Them • Potential for Litigation & Policy Reform

9. Assessing the Legal Environment in Disasters – Hurricane Katrina Licensing Emergencies Liability Protections from Harms

10. Center’sReal-Time Responses to Legal Issues During the Hurricane-related Emergencies • Extensive consultation with VHPs en route and on location in AL, LA, MS, TX, and other states • Additional consultation with prospective senders and hosts of VHPs • Production of memos and articles re: specific legal issues • Tracking of federal and state legal responses • Circulation of new editions of HRSA’s • Legal and Regulatory Issues Report (9/05) and the Center’s Advanced Tool Kit (8/05) • Resources available at www.publichealthlaw.net/ Research/Affprojects.htm

11. Specific Issues for Workshop Discussion • Legal Authority to Deploy VHPs • Multiple Levels of Emergency Declarations • EMAC Limitations Concerning Private Sector VHPs • “Federalizing” VHPs through DHHS

12. Legal Authority to Deploy VHPs The VHP SU DO KU

13. Legal Authority to Deploy VHPs Question? How Are These VHP Gaps Filled?

14. Legal Authority to Deploy VHPs Question? Who Fills the Gaps? Feds [F], States [S], Locals [L],Private Sector [P]

15. Legal Authority to Deploy VHPs • Federal agents • DHHS’ or other full-time employees • Federalized agents • Military personnel • State or local agents • State or local full-time employees via EMAC • Temporary state agents • National Guard, Medical Reserve Corps • Private Sector • Hospitals or other care providers • Charitable organizations • ESAR-VHP

16. Multiple Levels of Emergency Declarations • Federal, state, and many local governments have the ability to declare a state of “general emergency” or “disaster.” The powers and processes that arise from such declarations vary. • Federal and many state governments (as well as some locals) may also declare “public health emergencies.” • Emergency powers, legal protections, and operational definitions may be inconsistent in “dual declaration” states.

17. Emergency Declarations Once an emergency has been declared, the legal landscape changes.

18. Emergency Declarations Individuals are bestowed special protections Government is vested with specific powers to facilitate emergency responses State licensure requirements may be waived Responders may be protected from civil liability

19. 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. Multiple Levels of Emergency Declarations Federal “HHS” public health emergency Federal “FEMA” emergency State public health emergency State emergency or disaster Local public health emergency Local emergency or disaster

21. EMAC: Volunteer Health Professionals • Emergency Management • Assistance Compact (EMAC) • Mutual Aid Agreement • Passed into law by 49 states • Formalized emergency request framework • Broad immunity for responders – considered agents of requesting state

22. EMAC Limitations Concerning Private Sector VHPs: Filling the Pool State Officers and Employees Local Employees Private Sector

23. EMAC: Volunteer Health Professionals • How EMAC is designed to work: • Pool of responders are needed to fill surge capacity needs • These needs are only partially filled using the available VHPs who are “state officers or employees”

24. EMAC Response: Hurricane Katrina • State approaches to fill the pool: • Memoranda of Understanding with local governments or private volunteers (OH) • Temporary hiring or appointment to state positions (MD) • Automatic incorporation of local government employees into the state government (VA)

25. EMAC Responses in Future Emergencies • Potential state approaches to fill the pool: • Expansion of temporary hiring procedures under state laws to systematize these processes • Amendment of EMAC to include coverage for a broader array of VHPs

26. EMAC Responses in Future Emergencies • Limitations on future efforts to fill the pool: • Existing EMAC structure may deter some potential volunteers • Sending states may not wish to take on the burdens of taking on extra responders • Amendment of EMAC legislation may be politically challenging

27. Federalization of VHPs: Opening the Door • The federal government has authority to “federalize” VHPs during a declared general or public health emergency Federal Government

28. Federalization of VHPs: Opening the Door • Three approaches may be used under federal law to incorporate volunteers: • Intermittent disaster response personnel • Temporary HHS volunteers • Schedule A of the Excepted Service Federal Government

29. Federalization of VHPs: Opening the Door • Federalized VHPs qualify for a variety of legal protections for the duration of their participation in the emergency response Legal Protections: Immunity from Civil Liability (FTCA) Workers’ Compensation Coverage (FECA) Reemployment Rights

30. Federalizing VHPs: Issues • When may states use federal volunteers? • Who is in control of federal VHPs? • How do federal VHPs, EMAC VHPs, and state, local, and private sector health professionals work together? • Who is in charge?

31. Questions, Comments, Thoughts • Opportunity for Discussion • For more information, contact us or visit our website: • www.publichealthlaw.net/Research/Affprojects.htm • James G. Hodge, Jr., Executive Director jhodge@jhsph.edu • Lance Gable, Senior Fellow gable1@law.georgetown.edu