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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 ... – PowerPoint PPT presentation

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


1
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
2
Objectives
  • Legal Environment in Emergencies
  • Legal Triage
  • Altered/Situational
  • Standards of Care

3
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

4
Assessing the Legal Environment in Emergencies
5
The Convergence of Governments During Emergencies
6
The Convergence of Partners During Emergencies
7
The Convergence of Specific Actors During
Emergencies
8
Legal Triage During Emergencies
Legal Triage
9
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.
10
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.

11
Declared States of Emergency
Once an emergency has been declared, the legal
landscape changes.
12
Emergency Declarations
How the legal landscape changes depends on the
type of emergency declared
13
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)

14
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
15
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
16
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
17
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
18
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

19
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

20
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
21
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
22
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

23
The Proliferation of Emergency Issues During
Legal Triage
Authority
Liability
Allocation of Resources
Legal Triage
Altered Standards
VHPs
Public Health Powers
24
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
25
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.

26
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.

27
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
27
Data as of October 5, 2006
28
Risks of Civil Liability
Liability Risks to HCWs, Volunteers, and
Hospitals
29
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
30
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

31
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
31
32
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!

32
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