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VHP Legal and Regulatory Issues in Real-time during the Gulf Coast Hurricane Emergencies. James G. Hodge, Jr., J.D., LL.M. Lance A. Gable, J.D., M.P.H. Principal Investigator, HRSA ESAR-VHP Legal Project Director, HRSA ESAR-VHP Legal

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VHP Legal and Regulatory Issues in Real-time during the

Gulf Coast Hurricane Emergencies

James G. Hodge, Jr., J.D., LL.M. Lance A. Gable, J.D., M.P.H.

Principal Investigator, HRSA ESAR-VHP Legal Project Director, HRSA ESAR-VHP Legal

and Regulatory Issues Project and Regulatory Issues Project

Associate Professor, Johns Hopkins Bloomberg

School of PH

Executive Director, Center for Law & the Public’s Senior Fellow, Center for Law & the Public’s

Health at Georgetown and Johns Hopkins Health at Georgetown and Johns Hopkins Universities Universities

principal objectives
Principal Objectives
  • Assessing the Legal Environment During Emergencies
  • The Center’s Real-time Responses to Hurricanes Katrina, Rita, and Wilma
  • Specific Issues for Workshop Discussion
    • Legal authority to deploy VHPs
    • Multiple levels of emergency declarations
    • EMAC limitations
    • “Federalizing” VHPs
  • Questions, Comments, Thought for Discussion
assessing the legal environment hurricane katrina
Assessing the Legal Environment – Hurricane Katrina
  • Invocation of Federal and State Emergency Declarations
  • Interjurisdictional Coordination Among Federal, State, and Local Governments
  • Capacity to Utilize Volunteer Health Personnel and Others
  • Actual and Anticipated Harms to Displaced Persons and Those Assisting Them
  • Potential for Litigation & Policy Reform
assessing the legal environment in disasters hurricane katrina
Assessing the Legal Environment in Disasters – Hurricane Katrina

Licensing

Emergencies

Liability

Protections from Harms

center s real time responses to legal issues during the hurricane related emergencies
Center’sReal-Time Responses to Legal Issues During the Hurricane-related Emergencies
  • Extensive consultation with VHPs en route and on location in AL, LA, MS, TX, and other states
  • Additional consultation with prospective senders and hosts of VHPs
  • Production of memos and articles re: specific legal issues
  • Tracking of federal and state legal responses
  • Circulation of new editions of HRSA’s
  • Legal and Regulatory Issues Report (9/05) and the Center’s Advanced Tool Kit (8/05)
  • Resources available at www.publichealthlaw.net/ Research/Affprojects.htm
specific issues for workshop discussion
Specific Issues for Workshop Discussion
  • Legal Authority to Deploy VHPs
  • Multiple Levels of Emergency Declarations
  • EMAC Limitations Concerning Private Sector VHPs
  • “Federalizing” VHPs through DHHS
legal authority to deploy vhps13
Legal Authority to Deploy VHPs

Question?

How Are These VHP Gaps Filled?

legal authority to deploy vhps14
Legal Authority to Deploy VHPs

Question?

Who Fills the Gaps?

Feds [F], States [S], Locals [L],Private Sector [P]

legal authority to deploy vhps15
Legal Authority to Deploy VHPs
  • Federal agents
    • DHHS’ or other full-time employees
    • Federalized agents
    • Military personnel
  • State or local agents
    • State or local full-time employees via EMAC
    • Temporary state agents
    • National Guard, Medical Reserve Corps
  • Private Sector
    • Hospitals or other care providers
    • Charitable organizations
  • ESAR-VHP
multiple levels of emergency declarations
Multiple Levels of Emergency Declarations
  • Federal, state, and many local governments have the ability to declare a state of “general emergency” or “disaster.” The powers and processes that arise from such declarations vary.
  • Federal and many state governments (as well as some locals) may also declare “public health emergencies.”
  • Emergency powers, legal protections, and operational definitions may be inconsistent in “dual declaration” states.
emergency declarations
Emergency Declarations

Once an emergency has

been declared, the legal

landscape changes.

emergency declarations18
Emergency Declarations

Individuals are bestowed special protections

Government is vested with specific powers to facilitate emergency responses

State licensure requirements may be waived

Responders may be protected from civil liability

multiple levels of emergency declarations19
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

VHP deployment, uses, authorities, liabilities, immunities, protections from harm vary (and those with the answers) depend on the declared emergency

multiple levels of emergency declarations20
Multiple Levels of Emergency Declarations

Federal “HHS” public health emergency

Federal “FEMA” emergency

State public health emergency

State emergency or disaster

Local public health emergency

Local emergency or disaster

emac volunteer health professionals
EMAC: Volunteer Health Professionals
  • Emergency Management
  • Assistance Compact (EMAC)
  • Mutual Aid Agreement
  • Passed into law by 49 states
  • Formalized emergency request

framework

  • Broad immunity for responders –

considered agents of requesting state

emac limitations concerning private sector vhps filling the pool
EMAC Limitations Concerning Private Sector VHPs: Filling the Pool

State Officers and Employees

Local Employees

Private Sector

emac volunteer health professionals23
EMAC: Volunteer Health Professionals
  • How EMAC is designed to work:
    • Pool of responders are needed to fill surge capacity needs
    • These needs are only partially filled using the available VHPs who are “state officers or employees”
emac response hurricane katrina
EMAC Response: Hurricane Katrina
  • State approaches to fill the pool:
    • Memoranda of Understanding with local governments or private volunteers (OH)
    • Temporary hiring or appointment to state positions (MD)
    • Automatic incorporation of local government employees into the state government (VA)
emac responses in future emergencies
EMAC Responses in Future Emergencies
  • Potential state approaches to fill the pool:
    • Expansion of temporary hiring procedures under state laws to systematize these processes
    • Amendment of EMAC to include coverage for a broader array of VHPs
emac responses in future emergencies26
EMAC Responses in Future Emergencies
  • Limitations on future efforts to fill the pool:
    • Existing EMAC structure may deter some potential volunteers
    • Sending states may not wish to take on the burdens of taking on extra responders
    • Amendment of EMAC legislation may be politically challenging
federalization of vhps opening the door
Federalization of VHPs: Opening the Door
  • The federal government has authority to “federalize” VHPs during a declared general or public health emergency

Federal Government

federalization of vhps opening the door28
Federalization of VHPs: Opening the Door
  • Three approaches may be used under federal law to incorporate volunteers:
    • Intermittent disaster response personnel
    • Temporary HHS volunteers
    • Schedule A of the Excepted Service

Federal Government

federalization of vhps opening the door29
Federalization of VHPs: Opening the Door
  • Federalized VHPs qualify for a variety of legal protections for the duration of their participation in the emergency response

Legal Protections:

Immunity from Civil Liability (FTCA)

Workers’ Compensation Coverage (FECA)

Reemployment Rights

federalizing vhps issues
Federalizing VHPs: Issues
  • When may states use federal volunteers?
  • Who is in control of federal VHPs?
  • How do federal VHPs, EMAC VHPs, and state, local, and private sector health professionals work together?
  • Who is in charge?
questions comments thoughts
Questions, Comments, Thoughts
  • Opportunity for Discussion
  • For more information, contact us or visit our website:
  • www.publichealthlaw.net/Research/Affprojects.htm
  • James G. Hodge, Jr., Executive Director jhodge@jhsph.edu
  • Lance Gable, Senior Fellow gable1@law.georgetown.edu