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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 Public’s 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

Compacts

Cases

Policies Regulations

Statutes

Constitutions

Treaties

Types of Laws

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The Convergence of Governments During Emergencies

Community

City

County Tribal

State

National

International

Govern-ment

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The Convergence of Partners During Emergencies

Emergency Management

Private Industries

NGOs

Hospitals

National Security

Law Enforcement

Environment

Public Health

Partners

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The Convergence of Specific Actors During Emergencies

Military

Volunteers

HealthAdministrators

Health CareWorkers

Federal Agents

Law Enforcers

Lab Directors

Public HealthOfficials

Actors

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Legal Triage During Emergencies

Government

Partners

Actors

Laws

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 Center’s Model State Emergency Health Powers Act (MSEHPA)

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Multiple Levels of Emergency Declarations

LocalLocal

StateState

FederalFederal

Emergency

or

Disaster

Public

Health

Emergency

Emergency

or

Disaster

Public

Health

Emergency

“FEMA”

Emergency

“HHS”

Public

Health

Emergency

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States That Define “Emergency”

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT

PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)

““Emergency” or similar termEmergency” or similar termdefined in state statutes - 39defined in state statutes - 39

Data Current as of April 1, 2008

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States That Define “Disaster”

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT

PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)

““Disaster” or similar term Disaster” or similar term defined in state statutes - 42defined in state statutes - 42

Data Current as of April 1, 2008

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States That Define “Public Health Emergency”

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT

PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)

““Public health emergency” Public health emergency” or similar term defined in or similar term defined in state statutes - 26state statutes - 26

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)

Government is vested with specific, expedited powers to facilitate emergency responses

Individuals are bestowed special protections and entitlements

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”

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT

PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)

““Emergency”, “disaster”, andEmergency”, “disaster”, and““public health emergency” (or public health emergency” (or similar terms) defined in state similar terms) defined in state statutes - 26statutes - 26

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

Altered Standards

Allocation of Resources

Public Health Powers

Authority

VHPs

Liability

LegalTriage

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Multiple Levels of Emergency Declarations

Local emergency or disaster

Local public health emergency

State emergency or disaster

State public health emergency

Federal “FEMA” emergency

Federal “DHHS” public health emergency

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 Issues

Civil Liability – As a potential volunteer, how important to you is your immunity from civil lawsuits whether to volunteer during emergencies?

0%

10%

20%

30%

40%

50%

Not Important SomewhatImportant

Important Essential

5.5%

25%

35.6% 33.8%

Data as of October 5, 2006

69.4%

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Risks of Civil Liability

Liability Risks to HCWs, Volunteers, and Hospitals

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Umbrella of Liability Coverage

Mutual Aid Agreements

Good Samaritan

Acts

Federal VPA

State VPA

EMACIndemnification

JCAHO Standards/Policies & Practices

MOUs

UEVHPAState EHPA

Civil Liability Protections

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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

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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

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• ESAR-VHP Legal and Regulatory Issues Report & Checklist

• ESAR-VHP Legal and Regulatory Issues Report Annex: Local Emergency Laws - 2009 (Forthcoming)

• Center’s 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 Center’s website: www.publichealthlaw.net

• Thank you!