Interjurisdictional Legal Responses During Public Health Emergencies and Altered Standards of Care

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Interjurisdictional Legal Responses During
Public Health Emergencies and Altered Standards
of Care
James G. Hodge, Jr., J.D.,
LL.M. Professor, Johns Hopkins Bloomberg
School of Public Health Executive Director,
Centers for Law the Publics Health A
Collaborative at Johns Hopkins and Georgetown
Universities
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Objectives

• Legal Environment in Emergencies
• Legal Triage
• Altered/Situational
• Standards of Care

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Assessing the Legal Environment in Emergencies

• Laws pervade emergency responses at every
  level of government
• They determine what constitutes a public health-
  or other type 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

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Assessing the Legal Environment in Emergencies
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The Convergence of Governments During Emergencies
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The Convergence of Partners During Emergencies
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The Convergence of Specific Actors During
Emergencies
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Legal Triage During Emergencies
Legal Triage
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Legal Triage During Emergencies
Legal triage refers to the efforts of legal
actors and others to construct a favorable legal
environment through a prioritization of issues
and solutions that facilitate public health
responses during emergencies.
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Legal Triage During Emergencies

• Legal actors 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
• Revisit the utility, efficacy, and ethicality of
  legal guidance.

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Declared States of Emergency
Once an emergency has been declared, the legal
landscape changes.
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Emergency Declarations
How the legal landscape changes depends on the
type of emergency declared
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Emergency Declarations

• Before 9/11
• Existing legal infrastructures focused on general
  emergency or disaster responses
• All hazards approach

• After 9/11
• Reforms of emergency laws to address public
  health emergencies
• Based in part on the Centers Model State
  Emergency Health Powers Act (MSEHPA)

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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
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States That Define Emergency
HI
WA
NH
VT
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
OK
AZ
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
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States That Define Disaster
HI
WA
NH
VT
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
OK
AZ
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
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States That Define Public Health Emergency
HI
WA
NH
VT
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
OK
AZ
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
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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

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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

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The Model State Emergency Health Powers Act
(MSEHPA)
Individuals are bestowed special protections and
entitlements
Government is vested with specific, expedited
powers to facilitate emergency responses
State medical licensure requirements may be waived
Responders may be protected from civil liability
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States That Define Public Health Emergency and
Emergency or Disaster
HI
WA
NH
VT
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
OK
AZ
NM
AR
SC
GA
AL
MS
TX
LA
Emergency, disaster, and public health
emergency (or similar terms) defined in state
statutes - 26
FL
PR - (Puerto Rico) VI - (U.S. Virgin Islands)
Data Current as of April 1, 2008
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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) can lead to
  overlapping priorities
• Widely divergent responses and decisions on key
  issues

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The Proliferation of Emergency Issues During
Legal Triage
Authority
Liability
Allocation of Resources
Legal Triage
Altered Standards
VHPs
Public Health Powers
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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
Deployment, uses, authorities, liabilities, and
immunities of various actors depend on the
declared emergency
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Standards of Care - Defined

• Standards of care in the medical context refer
  generally to the type and level of medical care
  required in specific circumstances via
  professional norms, accreditation, or other
  requirements.
• Legal standards of care refer to the amount of
  skill that a medical practitioner should exercise
  in particular circumstances based on reasonable
  and common practice in medical care.

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Standards of Care - Defined

• Breaches of legal standards of care may lead to
  liability if
• The actor has a duty to provide care
• Breach is intentional or negligent
• Harm is proximately caused by the breach and
• Breach results in damages.

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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
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5.5
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Data as of October 5, 2006
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Risks of Civil Liability
Liability Risks to HCWs, Volunteers, and
Hospitals
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Civil Liability Protections
Umbrella of Liability Coverage
Federal VPA
Indemnification
EMAC
State VPA
Mutual Aid Agreements
Good Samaritan Acts
MOUs
State EHPA
UEVHPA
JCAHO Standards/ Policies Practices
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UEVHPA

• The Uniform Emergency Volunteer Health
  Practitioners Act of 2007
• Developed by the National Conference of
  Commissioners on Uniform State Laws (NCCUSL)
• Addresses key issues of registration, licensure
  portability, civil liability, standards of care,
  and workers compensation for VHPs
• Available at www.uevhpa.org

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Standards of Care Take Home Messages
The line of liability is intrinsically tied to
changing standards of care during
emergencies which may vary across
jurisdictions Predicting/determining where the
line is drawn in advance is key, but flexibility
is part of emergency preparedness and must be
taken into account
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Additional Resources

• ESAR-VHP Legal and Regulatory Issues Report
  Checklist
• ESAR-VHP Legal and Regulatory Issues Report
  Annex
• Local Emergency Laws - 2009 (Forthcoming)
• Centers Advanced Tool Kit for ESAR-VHP
  Coordinators
• 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
• All available at the Centers website
  www.publichealthlaw.net
• Thank you!

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