Reforming State Law to Facilitate the Use of Volunteer Health Personnel During Emergencies:

1. 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

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 Rita • Tool Kit (February 2006) • Available at: • www.publichealthlaw.net/Research/Affprojects.htm

3. Major Topical Areas 1) Declaration of State of Emergency or Public Health Emergency Regulation of Professionals - Licensing, Credentialing, and Privileging Civil Liability, Immunity, and Indemnification 4) Workers’ Compensation 5) Criminal Liability

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

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)

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

7. Emergency Declarations How the legal landscape changes depends on the type of emergency declared

8. Multiple Levels of Emergency Declarations Federal State “HHS” Public Health Emergency “FEMA” Emergency Local Emergency or Disaster Public Health Emergency Emergency or Disaster 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.

10. States That Define “Emergency” HI WA VT NH AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT PA IA NJ NE NV DE OH IN IL UT MD CA CO WV VA DC KS MO KY NC TN AZ OK NM AR SC GA AL MS TX LA FL “Emergency” or similar term defined in state statutes PR - (Puerto Rico) VI - (U.S. Virgin Islands)

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).

12. States That Define “Disaster” HI WA VT NH AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT PA IA NJ NE NV DE OH IN IL UT MD CA CO WV VA DC KS MO KY NC TN AZ OK NM AR SC GA AL MS TX LA FL “Disaster” or similar term defined in state statutes PR - (Puerto Rico) VI - (U.S. Virgin Islands)

13. “Disaster” Defined - West Virginia “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” HI WA VT NH AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT PA IA NJ NE NV DE OH IN IL UT MD CA CO WV VA DC KS MO KY NC TN AZ OK NM AR SC GA AL MS TX LA FL “Public health emergency” or similar term defined in state statutes PR - (Puerto Rico) VI - (U.S. Virgin Islands)

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

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

17. Public Health Emergency Declaration 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

18. States That Define “Public Health Emergency” and “Emergency” or “Disaster” HI WA VT NH AK MT ME ND MN OR ID MA SD WI NY MI RI WY CT PA IA NJ NE NV DE OH IN IL UT MD CA CO WV VA DC KS MO KY NC TN AZ OK NM AR SC GA AL MS TX LA [“Emergency” or “disaster”] and “public health emergency” defined in state statutes FL PR - (Puerto Rico) VI - (U.S. Virgin Islands)

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

20. 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

21. Regulation of Volunteer Professionals Essential question of licensure portability: When can volunteer health professionals practice across state lines?

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

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?

24. APHA Survey on Volunteer Health Practitioner Legal IssuesCivil Lawsuits – As a potential volunteer, how important to you is your immunity from civil lawsuits whether to volunteer during emergencies? 69.4% 35.6% 33.8% 25% 5.5% Data as of October 5, 2006

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.

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

27. Civil Liability • Legal theories: • Negligence • Intentional torts • Privacy • Misrepresentation • Discrimination

28. Civil Liability Liability Risks to Volunteers, Hospitals, and Others

29. Civil Liability Protections Umbrella of Liability Coverage

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”

31. APHA Survey on Volunteer Health Practitioner Legal IssuesProtection 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? 74.1% 44.7% 29.4% 21% 4.8% Data as of October 5, 2006

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

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

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. - jhodge@jhsph.edu • Thank you