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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!