Liability and Other Legal Issues Concerning Volunteer Health Professionals in Emergencies –

Liability and Other Legal Issues Concerning Volunteer Health Professionals in Emergencies – An Overview James G. Hodge, Jr., J.D., LL.M. Lincoln Professor of Health Law and Ethics Director, Public Health Law and Policy Program Sandra Day O’Connor College of Law Arizona State University

Major Topical Areas • Legal Triage In Emergencies • Licensure Reciprocity • Civil Liability, Immunity, and Indemnification • Workers’ Compensation 2

Assessing the Role of Law 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

Legal Triage Legal Triage in PHEs – Public health law in real-time

Legal Triage Legal triage refers to the efforts of legal actors and others to construct a favorable legal environment during emergencies through a prioritization of issues and solutions that facilitate legitimate public health responses Hodge, JG, Anderson, ED. Principles and practice of legal triage during public health emergencies. NYU Ann. Surv. Am. L. 2008; 64(2): 249-291.

Legal Triage • Legal actors and others must be prepared to: • assess and monitor changing legal norms during emergencies; • identify legal issues that may facilitate or impede public health responses as they arise; • develop innovative, responsive legal solutions to reported barriers to public health responses; • explain legal conclusions through tailored communications to planners and affected persons; and • consistently revisit the utility, efficacy, and ethicality of legal guidance.

State of Emergency Once an emergency has been declared, the legal landscape changes.

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

Multiple Levels of Emergency Declarations International Federal Emergency Declarations By Intl Govs WHO PHEIC “HHS” Public Health Emergency State “FEMA” Emergency Emergency or Disaster Local Public Health Emergency Public Health Emergency Emergency or Disaster

Multiple Levels of Emergency Declarations International Govts Emergency Declarations InternationalW.H.O. Public Health Emergency of International Concern (PHEIC) Federal “DHHS” public health emergency Federal “FEMA” emergency State public health emergency State emergency or disaster Local public health emergency Local emergency or disaster Public health authorities and powers, actors, liabilities, immunities, and other critical legal issues vary depending on the declared emergency

Emergency Declarations - State Approaches • Before 9/11: • Existing state legal infrastructures focused on general emergency or disaster responses • “All hazards” approach • After 9/11: • Reforms of emergency laws in many states are reformed to address “public health emergencies” • Based in part on the Model State Emergency Health Powers Act (MSEHPA) 11

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 - 39 PR - (Puerto Rico) VI - (U.S. Virgin Islands) Data Current as of April 1, 2008

“Emergency” Defined - Arizona "State of emergency" means “the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons or property within the state caused by air pollution, fire, flood or floodwater, storm, epidemic, riot, earthquake or other causes, except those resulting in a state of war emergency, which are or are likely to be beyond the control of the services, personnel, equipment and facilities of any single county, city or town, and which require the combined efforts of the state and the political subdivision.” Ariz. Rev. Stat. § 26-301 (2006)

“Emergency” Defined - Arizona “Local emergency” means “the existence of conditions of disaster or of extreme peril to the safety of persons or property within the territorial limits of a county, city or town, which conditions are or are likely to be beyond the control of services, personnel, equipment and facilities of such political subdivision as determined by its governing body and which require the combined efforts of other political subdivisions.” Ariz. Rev. Stat. § 26-301 (2006)

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 - 42 PR - (Puerto Rico) VI - (U.S. Virgin Islands) Data Current as of April 1, 2008

“Disaster” Defined - Texas "Disaster" means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or man-made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, other public calamity requiring emergency action, or energy emergency. Tex. Gov’t Code Ann. § 418.004(1), (3) (Vernon 2003)

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 - 26 PR - (Puerto Rico) VI - (U.S. Virgin Islands) Data Current as of April 1, 2008

“Public Health Emergency” Defined - Arizona “A state of emergency or state of war emergency declared by the governor in which there is an occurrence or imminent threat of an illness or health condition: [1] caused by bioterrorism, an epidemic or pandemic disease or a highly fatal infectious agent or biological toxin; and [2] that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability.” Ariz. Rev. Stat. § 36-787 (2006) 18

Emergency Powers - MSEHPA Individuals are bestowed special protections and entitlements Government is vested with specific, expedited powers to facilitate emergency responses Hospital privileging requirements may be waived Volunteer responders may be protected from civil liability

Crisis Standard of Care As defined by the Institute of Medicine, a “crisis” standard of care applies in declared emergencies, allowing for legal adaptation to changing circumstances and demands.

Proliferation of Issues in Legal Triage Authority Liability Allocation of Resources Legal Triage Crisis Standards VHPs Public Health Powers

Licensure Reciprocity - 1 • Essential question: when can volunteer health professionals practice across state lines? ? ? ? ?

Licensure Reciprocity - 2

Licensure Reciprocity - 3

Civil Liability - 1 • 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. 27

Civil Liability - 2 • Who may face civil liability? • Volunteers • Health care entities that provide volunteers • Health care entities that accept volunteers • Persons or entities responsible for the registration system 28

Civil Liability - 3 • Legal theories: • Negligence • Intentional torts • Privacy • Misrepresentation • Discrimination 29

Civil Liability - 4 Liability Risks to VHPs and Hospitals

Civil Liability Protections Umbrella of Liability Protections

Civil Liability - Volunteers • Legal provisions that may protect VHPs from liability: • Volunteer Protection Acts • Governmental (sovereign) immunity • “Good Samaritan” Acts • Emergency statutes

Civil Liability – Volunteers • Volunteer Protection Acts: • Federal and state Volunteer Protection Acts • No emergency required • Apply to volunteers for nonprofit and governmental entities only • Do not apply to organizations • Minimal compensation allowed to VHPs

Volunteer Protection Laws - Arizona A volunteeris immune from civil liability in any action based on an act or omission of a volunteer resulting in damage or injury. The acts must be within the scope of the volunteer'sofficial functions and duties for a nonprofit corporation or nonprofit organization, hospital or governmental entity. Ariz. Rev. Stat. § 12-982 (2006) 28

Civil Liability - Volunteers • Governmental (sovereign) immunity: • Scope of immunity determined by Tort Claims Acts • May cover all government employees, including volunteers • No emergency required • Not absolute for egregious conduct • Volunteers in non-government settings are not covered

Civil Liability - Volunteers • Good Samaritan Acts: • Reduce the standard of care • Emergency situation must exist, but not typically via declaration • Do not typically apply to employees • May not apply for pre-arranged or compensated volunteers • Not applicable to egregious conduct

“Good Samaritan Laws” - Arizona Health care providers licensed or certified to practice as such in this state or elsewhere, . . ., or any other person who renders emergency care at a public gathering or at the scene of an emergency occurrence gratuitously and in good faith shall not be liable for any civil or other damages as the result of any act or omission by such person rendering the emergency care, or as the result of any act or failure to act to provide or arrange for further medical treatment or care for the injured persons. Ariz. Rev. Stat. § 32-1471 (2006)

Civil Liability - Volunteers • Emergency statutes: • Provide immunity during declared emergencies explicitly or by converting VHPs into state employees • Provisions can be broad or redundant • Not applicable to egregious conduct

Civil Liability Protections - Arizona • Emergency statute: • A person or health care provider undertaking any activity required by this article, including reporting, participating in quarantine or isolation procedures, is immune from civil or criminal liability if the person or health care provider acted in good faith. Actions required by this article are presumed to be in good faith. • Ariz. Rev. Stat. § 36-790 (2006)

Civil Liability – Health Care Entities • Immunity for health care entities: • Less immunity options than for VHPs • Some health care entities may qualify for sovereign immunity

Civil Liability – Health Care Entities • Health care entities that provide volunteers: • Unlikely to be liable for acts by its employees in other facilities or jurisdictions. • Health care entities that accept volunteers: • May be liable for actions that take place under their supervision depending on the relationship between the VHP and the entity

Workers’ Compensation • Key Questions: • Are VHPs employees for the purposes of workers’ compensation? • Who is the employer of VHPs? • When is a VHP acting within the scope of his or her employment? • When is a VHP “injured” during emergency responses?

Workers’ Compensation • Are VHPs employees for the purposes of workers’ compensation? • Absent a state law extending workers’ compensation to volunteers, unpaid individuals who respond to emergencies are not covered because they are not “employees” • Narrowly written laws that appear to cover VHPs may not apply if the (1) employer opts to not cover volunteers or (2) volunteer is not appropriately registered.

Workers’ Compensation • Who is the employer of volunteers? • The employer from the “home” state is not likely to be responsible for injuries to volunteers because they are acting outside the course of employment (unless the employer offers to provide coverage) • Temporary “host” employer may be the state or municipal government. • If not, the “host” institution (e.g., hospital) may be responsible.

Workers’ Compensation • When is a volunteer acting within the scope of his or her employment? – even if coverage exists, it only extends to acts within the scope of one’s employment • When is a volunteer “injured” in the course of emergency responses? – Workers compensation only pertains to injuries that occur at work. Questions as to the timing of injuries may arise, especially among states that lack comprehensive occupational health provisions

Conclusion • For more information, please contact us at the Network for Public Health Law – Western Region Office • 480-727-8576 • james.hodge.1@asu.edu • http://www.networkforphl.org/ • Questions, comments, thoughts? • Thank you!

Liability and Other Legal Issues Concerning Volunteer Health Professionals in Emergencies –