ESAR-VHP Legal and Regulatory Issues: Focus on Local Emergency Laws

1. ESAR-VHP Legal and Regulatory Issues: Focus on Local Emergency Laws James G. Hodge, Jr., J.D., LL.M. Professor, Johns Hopkins Bloomberg School of Public Health Executive Director, Centers for Law & the Public’s Health: A Collaborative at Johns Hopkins and Georgetown Universities Evan D. Anderson, J.D. Research Associate, Johns Hopkins Bloomberg School of Public Health Senior Fellow, Centers for Law & the Public’s Health: A Collaborative at Johns Hopkins and Georgetown Universities

2. Acknowledgement The Centersfor Law and the Public’s Health would like to acknowledge the Office of the Assistant Secretary for Preparedness and Response (ASPR), DHHS for its continued support of the ESAR-VHP Legal and Regulatory Issues Project.

3. Disclaimer Please note that the information discussed during this presentation does not constitute the official positions of ASPR, nor does it include or constitute specific legal advice. Legal advice on the issues discussed in this presentation is necessarily fact-specific and varies depending upon state and local law. Concerning specific requests for legal advice, ASPR suggests that its grantees contact their state's Office of the Attorney General or institutional legal counsel. 3

4. A Brief Timeline • 2001: 9/11 raises issues about the deployment of VHPs • 2002: Congress authorizes DHHS to develop ESAR-VHP • 2004: Center asked to assess legal and regulatory issues • underlying the deployment of VHPs during emergencies • 2006: Center releases most current version of ESAR VHP Legal and Regulatory Issues Report (Report) addressing legal issues related to the deployment and use of VHPs at the state level (including a 50+ state legal survey of various laws) • 2008: Center asked to create an Annex to the Report to explore the impact of local laws on the deployment of VHPs in locally-declared emergencies

5. Major Resources • ASPR’s ESAR-VHP Legal and Regulatory Issues Report • and Checklist – May 2006 (Revised 9/08 version forthcoming) • ASPR’s ESAR-VHP Legal and Regulatory Issues Report Annex: • Local Emergency Laws - 2009 (Forthcoming) • Center’s Advanced Tool Kit - February 2007 • Hurricanes Katrina and Rita: Legal Issues Concerning VHPs • Compendium– October 2005 • Principles and Practice of Legal Triage During Public Health • Emergencies. NYU Annual Survey of American Law 2009; • 64:249-292 • publichealthlaw.net/Projects/ESAR-VHP.php

6. ESAR-VHP Legal Regulatory Issues Report The ESAR-VHP Legal and Regulatory Issues Report addresses major topical areas related to the deployment and use of VHPs at the state or territorial levels, including: • Declarations of Emergency and Public Health Emergency • Regulation of Professionals: Licensing, Credentialing • Civil Liability, Immunity, and Indemnification • Worker’s Compensation

7. Declarations of Emergency and Public Health Emergency • After 9/11, many states reformed emergency laws • Based in part on the Center’sModel State Emergency Health Powers Act (MSEHPA) multiple states enact “public health emergency” laws • Dilemma of “dual declarations” • Emergency powers and legal protections may vary under different, overlapping declarations, leading to inconsistencies and confusion

8. 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”, “disaster”, and “public health emergency” (or similar terms) defined in state Statutes - 27 FL PR - (Puerto Rico) VI - (U.S. Virgin Islands)

9. Regulation of Professionals: Licensing, Credentialing • Emergency Declarations: • Waive normal licensing laws to increase portability of licensure • State Agreements: • Emergency Management Assistance Compact (EMAC) • Non-emergency Reciprocity Agreements: • Nurse Licensure Compact and Regional MOUs

10. APHA Survey on Volunteer Health Practitioner Legal IssuesCivil Liability – 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% 10 Data as of October 5, 2006

11. Civil Liability, Immunity, Indemnification • Civil Liability • Who may face civil liability? • Volunteers, health care entities accepting volunteers, responses or entities responsible for registration system • Under what themes? • Negligence • Intentional torts • Privacy • Misrepresentation • Discrimination

12. Risks of Civil Liability Liability Risks to Volunteers

13. Civil Liability Protections Umbrella of Liability Coverage

14. State-based Workers’ Compensation • Key Questions: • Who is an employee for the purposes of workers’ compensation? • Who is the employer of volunteers? • When is a volunteer acting within the scope of her employment? • When is a volunteer “injured” in the course of emergency responses?

15. State-based Workers Comp Coverage 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 Workers comp coverage available for emergency volunteers with limitations

16. ESAR-VHP Annex: Local Emergency Laws • Objective: • To assess how local laws impact the deployment and use of VHPs during locally-declared emergencies • Methodology: • Survey the laws of 20 selected localities pertaining to: • Degree of Home Rule • Power to Declare Local States of Emergency • Types of Emergency Declarations • Definition of Volunteer • Liability Protections • Compare and assess the impact of local laws on the deployment of VHPs during locally-declared emergencies

17. Selection of Localities • Geographic Diversity • Population Size • Governmental Organization • City, County, Consolidated City-county • Experience with Emergencies

18. Selected Localities Augusta Seattle Burlington Billings Rapid City New York City Reno Philadelphia City Denver Cook County San Francisco Baltimore County Oklahoma City Little Rock Tucson Gwinnett County Dallas Laredo New Orleans Miami -- 20 Selected Local Jurisdictions

19. Est. Population for Selected Localities

20. Governmental Status of Selected Localities Augusta Seattle Burlington Billings Rapid City New York City Reno Philadelphia City Denver San Francisco Cook County Baltimore County Oklahoma City Tucson Little Rock Gwinnett County Dallas City Laredo New Orleans Miami County Consolidated city-county

21. Governmental Status of Selected Localities 14 3 3 21

22. ESAR-VHP Annex: Local Emergency Laws Assessed laws for each locality in 5 topical areas: • Degree of Home Rule • Power to Declare Local States of Emergency • Types of Local Emergency Declarations • Definition of Volunteer • Liability Protections

23. Degree of Home Rule Among Selected Localities Home Rule is the degree of self-government or autonomy in internal affairs of a dependent political unit (such as a city, county, or consolidated city-county). Weak Strong 5 15 23

24. Localities Defining Emergency and/or Disaster Augusta E Seattle Burlington Billings E Rapid City E New York City E Reno Philadelphia City D E San Francisco Cook County E Denver Baltimore County Oklahoma City Little Rock Tucson E/D E/D E/D E/D E/D E/D E/D E/D E/D E D Gwinnett County Dallas E E -- Localities that define emergency E New Orleans Miami D Laredo -- Localities that define disaster -- Localities that define both -- Localities that do not define emergency and/or disaster 24

25. ESAR- VHP Local Annex: Local Definitions of Emergencies

26. “Emergency” Defined – Baltimore County, MD “Emergency” means demand on local government services which exceeds or threatens to exceed the city’s response capability or an unexpected and/or unusual problem confronting the community which is threatening to life or property.  BURLINGTON, VT., CODE § 11-3(A)(2). 26

27. Disaster Defined – Cook County, IL “Disaster” means the occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause, including but not limited to fire, flood, earthquake, wind, storm, hazardous materials spill or other water contamination requiring emergency action to avert danger or damage, epidemic, air contamination, blight, extended periods of severe and inclement weather, drought, infestation, critical shortages of essential fuels and energy, explosion, riot, hostile military or paramilitary action, public health emergencies, or acts of domestic terrorism. COOK COUNTY, IL., CODE § 26-36(A)(2008). 27

28. Types of Local Emergencies “Other” types of crises defined: Augusta, ME • Disaster • Disaster emergency • Local emergency • Manmade disaster • Natural disaster • War-caused disaster 28

29. Local Definitions of Volunteers • Only 2 (10%) of the localities surveyed explicitly define the term “volunteer” (Burlington, VT and Dallas, TX) • Other localities have developed alternative, innovative approaches to include volunteers under liability protections

30. Local Definitions of Volunteers • How localities define “volunteer” implicates the coordination of emergency response efforts and the availability of liability protections • Without a clear definition of who constitutes a “volunteer:” • Local officials may be unsure about whom they may deploy to address critical threats to the public’s health • VHPs may hesitate to respond due to uncertainty about liability protections

31. Local Liability Protections 31

32. Liability Protections Three types of liability protections are found among the selected localities: • General Immunity • Sovereign Immunity • Indemnification 32

33. ESAR-VHP Local Annex: Principal Findings Scope and Effect of Home Rule Among Localities Enhanced Preparedness Among City-County Local Governments Variation in Emergency Declarations at the Local Level Variation among Local Liability Protections Innovations in Defining Volunteers

34. Scope and Effect of Home Rule Among Localities • Factors used to classify localities as having “strong” or “weak” home rule powers: • Degree State Constitutions allow Home Rule • Classification of localities under state statutes • Adoption of Home Rule charters • How localities describe their Home Rule powers under ordinances and Home Rule charters

35. Degree of Home Rule Augusta Seattle Burlington Billings Rapid City New York City Reno Philadelphia City Denver Cook County San Francisco Baltimore County Oklahoma City Little Rock Tucson Gwinnett County Dallas --Strong home rule powers Laredo New Orleans Miami -- Weak home rule powers

36. Scope and Effect of Home Rule Among Localities • Degree of home rule is significantly correlated with the provision of liability protections at local level • Localities with the strongest home rule powers are more likely to provide liability protections

37. Scope and Effect of Home Rule Among Localities 9 of the 15 (60%) with strong home rule powers provide liability protection for locally deployed VHPs 37

38. Scope and Effect of Home Rule Among Localities 1 of the 5 (20%) localities with weak home rule powers provide liability protection for locally-deployed VHPs (Burlington, VT) 38

39. Scope and Effect of Home Rule Among Localities Take-Home Message #1 Localities with the strongest home rule powers are more likely to provide liability protections in their local laws 39

40. 2009 Local Annex: Principal Findings Scope and Effect of Home Rule Among Localities Enhanced Preparedness Among City-County Local Governments Variation in Emergency Declarations at the Local Level Variation among Local Liability Protections Innovations in Defining Volunteers

41. Enhanced Preparedness Power Among City-County Local Governments • Consolidated city-counties (Denver, Philadelphia, San Francisco, New York City) have particularly extensive emergency preparedness laws • All are large cities granting city officials extensive rule and law-making powers during declared emergencies

42. Enhanced Preparedness Power Among City-County Local Governments Philadelphia: Mayor can create and enforce regulations immediately bypassing normal administrative procedures New York City: During a declared emergency, the mayor can implement “all emergency measures” which last for the duration of the emergency

43. Enhanced Preparedness Power Among City-County Local Governments Denver : Director of Emergency Management authorized to adopt rules and regulations for carrying out emergency management objectives San Francisco: Mayor can do whatever is “necessary to meet the emergency” 43

44. Enhanced Preparedness Power Among City-County Local Governments • Why is this important for VHPs? • Officials may have the authority to modify liability protections concerning VHPs in real time to meet the demands of the emergency: • For example, in San Francisco: • Mayor can command the aid of as many citizens deemed necessary, affording them all privileges, benefits, and immunities provided by State law for registered disaster service workers. San Francisco, Cal., Code § 7.60(b)(3) (2008).

45. Enhanced Preparedness Power Among City-County Local Governments Take-Home Message #2 Consolidated City-Counties have extensive emergency powers that may include the ability to provide liability protections for VHPs in real time. 45

46. ESAR-VHP Local Annex: Principal Findings Scope and Effect of Home Rule Among Localities Enhanced Preparedness Among City-County Local Governments Variation in Emergency Declarations at the Local Level Variations among Local Liability Protections Innovations in Defining Volunteers

47. Emergency Declarations in Local Laws 47

48. Variation in Emergency Declarations at the Local Level “Dual declarations” are possible in 8 (40%) of the surveyed localities that define both emergency and disaster or another crisis

49. Localities Defining Emergency and Disaster Augusta Burlington Reno Denver Oklahoma City Little Rock E/D E/D E/D E/D E/D E/D E/D E/D E/D Gwinnett County Miami -- Localities that define both emergency and disaster 49

50. Variation in Local Emergency Declarations Variation in local emergency declarations provides options for specialized responses but may also lead to complications • Problem of “dual-declarations” • Confusion about the scope and application of legal protections for VHPs