Mass Medical Care with Scarce Resources: The Essentials - Assessing the Legal Environment

[sharon sanders]

3. Assessing the Legal Environment

<table class="bluebox" border="1" cellpadding="8" cellspacing="0" width="80%"> <tbody><tr valign="top"> <td>Key Questions
What are the principal types of emergency declarations?
What are the basic legal issues that emergency planners must consider?
Can normal licensing requirements for volunteer health personnel be circumvented during an emergency?
What legal protections are there for health care workers and volunteer health personnel during an emergency?
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Laws at all levels of government are a critical part of emergency responses and allocation decisions involving scarce resources in MCEs. Constitutional provisions, statutes, administrative regulations, cases, compacts, mutual aid agreements, and public health or emergency management policies or plans are all relevant to assessing the legal environment in declared emergencies.


Please note that the information in this report and this section does not provide specific legal advice. Legal advice on these issues is necessarily fact-specific and varies depending on State or local laws and specific circumstances. Community planners are encouraged to work closely with their State Attorney General offices or local counsel to identify specific legal issues and solutions before and during MCEs.


By their nature, MCEs will typically result in the invocation of state of emergency declarations at multiple levels of government (Federal, Tribal, State and local). Emergency declarations essentially change the legal environment to facilitate emergency responses.¹ State and local public health agencies (and their public and private sector partners) may assume a number of extraordinary public health powers.² Governmental emergencies, however, vary depending often on the type of emergency declared and the level of government making the declaration.³ As discussed below, major types of emergency declarations include public health emergencies, general emergencies, and disasters.

Public health emergencies. Some States or local governments may declare a public health emergency.⁴ Once a state of public health emergency has been declared, State and local public health agencies (and their public and private sector partners) may be given a number of extraordinary public health powers.⁵ These include the ability to waive State professional licensing and certification requirements for volunteer health professionals (VHPs) participating in emergency response efforts,⁶ liability protections for medical personnel,⁷ and expedited procedures to acquire essential supplies and personnel.⁸

General emergencies and disasters. Every State and many local governments have developed a legal structure for declaring a general emergency or disaster and related emergency management functions. A state of emergency or disaster typically may be declared in response to any natural or manmade event or occurrence that threatens the public's health or safety. Thus, an official such as a Governor, State health commissioner, local mayor, county commissioner can declare an emergency, depending on the laws in the jurisdiction.⁹

Dual declarations. Some States allow for the dual declaration of public health emergencies and general emergencies, which can lead to legislative confusion and duplication of efforts.¹⁰ Dual declarations present two major problems: the flow of specific powers and protections from emergency declarations vary depending on the type of declaration, and responsibility and authority for emergency responses may become convoluted when differing State or local agencies are charged with coordinating responses.¹¹

Federal declarations. The Federal Government also has the power to declare an emergency or disaster. These powers operate independently or in conjunction with State and local emergency response efforts.¹² The President may authorize emergency assistance "to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States" at the request of a State Governor or when the emergency is primarily a Federal responsibility.¹³ Depending on whether the event is an emergency or a major disaster, the Federal Government has differing powers.¹⁴ For example, Federal disaster assistance is only available on the request of the State Governor for major disasters, including natural catastrophes, fires, floods, or explosions, for which "effective response is beyond the capabilities of the State and the affected local governments?."¹⁵
In addition, the HHS Secretary is authorized to declare a public health emergency.¹⁶ This declaration authorizes a host of Federal actions. At any time, the HHS Secretary may deploy members of the Public Health Service or intermittent disaster response personnel to support States in responding to public health emergencies.
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Balancing Individual and Communal Interests

While emergency laws can help planners make decisions about scarce resources, other legal requirements also may affect these decisions. Constitutional principles may limit government actions. For example, allocation decisions that (1) Are based on discrimination against race, ethnicity, national origin, religion, or sex, for example, (2) lack meaningful justification, or (3) deny individuals an opportunity to be heard may violate constitutional principles of equal protection and due process or civil rights statutes. Legal action may be brought to stop the enforcement of these decisions even during emergencies.
Disability laws, such as the Americans With Disabilities Act¹⁷ or State or local equivalents, may require protections for people with disabilities during emergencies. Some States and localities bar discrimination under much broader human rights laws.¹⁸


State and local governments legally may require the prioritization of their own workforce over the general population concerning specific medical interventions to ensure government stability and continued efforts to protect the public's health. Similar decisions by health care entities to protect their essential personnel when resources are scarce also may be legally supportable.¹⁹


Federal or State agencies may prescribe specific laws or guidance on prioritization of vulnerable populations. These types of legal actions demonstrate how laws can help allocation decisions, but also how they may interfere with local decisions of community health planners.
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Suspension of Existing Legal Requirements

Statutes allowing suspensions of existing provisions of law (except constitutional norms) exist in most Federal, State, and local emergency laws.²⁰ Their use during an emergency can affect allocation decisions profoundly.
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Interjurisdictional Legal Coordination

Emergency responses may require moving people and property between jurisdictions efficiently. Difficult legal questions arise that require coordination of activities and resources across local, State, and Federal boundaries.²¹ Interjurisdictional coordination may arise between similar jurisdictions (e.g., between adjacent counties) or different jurisdictions (e.g., between local or tribal and/or State and Federal governments).²²
Formal mutual aid agreements between States (e.g., the Emergency Management Assistance Compact [EMAC²³]), local governments (e.g., Illinois Public Health Mutual Aid System Agreement²⁴), and foreign countries (e.g., International Emergency Management Assistance Compact between several New England States and Canadian provinces²⁵) help with exchanges of resources in real time during emergencies.
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Medical Licensure Reciprocity

During MCEs involving Federal or State declarations of emergency, the potential for significant losses of health care personnel coupled with hundreds or thousands of new patients presents an immediate need for additional trained health care providers.²⁶ These providers may come from facilities both in and out of State.


In nonemergencies, licensed non-Federal practitioners in one State cannot practice medicine or public health services in another State without waivers of State licensure requirements or other conditions (e.g., Good Samaritan provisions).²⁷ Federal health care providers need only to be licensed in one State to perform their official duties in any State.²⁸
States have created several legal approaches to circumvent normal licensing requirements for VHPs during emergencies. These provisions allow these volunteers to practice during an emergency as if they were licensed in the jurisdiction, subject to restrictions on the scope of practice set forth by the State or a political subdivision.²⁹ Licensure reciprocity provisions must be clearly communicated during emergencies to ensure that VHPs can participate in emergency response.


Patient family members, neighbors, or others in the community also may be needed to provide palliative or other medical care or offer essential support for medical personnel. While a State-based declaration of an emergency typically does not authorize individuals without medical training to provide systematic medical care of patients, their supervised participation in the care of relatives or companions is essential. Just as in nonemergencies, such activities are legally warranted in many cases. Individuals lacking medical training also may provide key support services to patients, provided that they do not actually treat them. Screening patients through the administration of basic services by nonmedical personnel is legally permissible in emergencies; diagnosing patients, deciding their treatment, or prescribing their medications is likely not.
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Liability and Other Protections for Health Care Workers and Volunteers

The uncertainties of emergency legal environments, the need to work within standards appropriate to the situation,³⁰ and the unpredictability of harms to some patients (especially during emergencies) raise liability fears among health care workers and VHPs attempting to provide health services via medical triage. Immunity from civil liability for harms to patients may be available through legal sources,³¹ including:

• Governmental sovereign immunity (if the worker or volunteer is a government employee or agent).
• Federal and State volunteer protection acts.³²
• States' Good Samaritan Acts.³³
• State emergency health powers statutes³⁴; and
• Mutual aid compacts such as (EMAC).³⁵ For example, State officers or employees providing aid via EMAC during emergencies are protected from civil liability as agents of the requesting State so long as they act in good faith and without "willful misconduct, gross negligence, or recklessness."³⁶

Fewer liability protections exist for the entities (e.g., private hospitals, medical clinics) that respond to emergencies.³⁷ The Federal Volunteer Protection Act of 1997, for example, provides immunity for volunteers of nonprofit entities but not for the entities themselves.³⁸ Some State laws mimic this approach; additional state legislative reforms are in development.³⁹ Currently, however, hospitals and other health care entities may be subject to potential liability during an emergency, even if their employees or VHPs are protected.⁴⁰ The Uniform Emergency Volunteer Health Practitioners Act (UEVHPA), which has been enacted in several States (including Arkansas, Colorado, Indiana, Kentucky, New Mexico, Tennessee, and Utah), provides some liability protections for entities coordinating or hosting VHPs.⁴¹
<table class="bluebox" border="1" cellpadding="8" cellspacing="0" width="80%"> <tbody><tr valign="top"> <td>Resource
Further information on the Uniform Emergency Volunteer Health Practitioners Act is available at http://www.uevhpa.org/DesktopDefault.aspx.
</td> </tr> </tbody></table> Liability concerns may also arise concerning injuries to health care workers or VHPs. Under some circumstances, government or the private sector may compensate these individuals for injuries (physical or mental) incurred in responding to the emergency. Workers are often protected from these harms through workers' compensation programs that cover individuals injured or killed at work⁴², even during emergencies.⁴³


VHPs, however, are not typically classifiable as employees and so do not benefit automatically from worker's compensation plans. VHPs deployed as Federal or State agents may be covered by governmental workers compensation plans. VHPs deployed through EMAC are automatically eligible for State workers compensation benefits. Some States, such as Michigan, have legally extended their workers compensation programs to registered VHPs providing services in the State during an emergency.⁴⁴ Some employers have worked out contractual agreements with their workers' compensation carriers to continue to cover employees who volunteer to respond to an emergency outside their jobs.
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Making Allocation Decisions in Real Time: Legal Triage

Community health planners must align with their local legal community to clarify emergency legal issues in their jurisdictions. Addressing legal issues that underlie the allocation of scarce resources is an essential part of emergency plans. Planners should begin with a series of legal questions that have been answered in prior emergencies. Does local government have sufficient home rule to declare an emergency? If so, under what authority? What types of emergencies can be declared? What powers flow from the declaration? What nonemergency legal provisions may be suspended? What emergency provisions directly affect the allocation of scarce resources? Who is legally responsible for making critical decisions at the State or local level? How much authority will a particular entity have to make critical choices? When can the government challenge that entity's decisions? When is that entity, its employees, or its volunteers legally accountable for these decisions?
<table class="bluebox" border="1" cellpadding="8" cellspacing="0" width="80%"> <tbody><tr valign="top"> <td>Resource
Local Government Public Health Emergency Legal Preparedness and Response, developed by the Centers for Law and the Public's Health: A Collaborative at Johns Hopkins and Georgetown Universities, provides useful checklist on local government public health emergency legal preparedness and response. Available at http://www.publichealthlaw.net/Proje...rgencyPrep.php.⁴⁵
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Legal practitioners must be prepared to prioritize relevant legal issues in real time. Legal triage refers to efforts of these practitioners to construct a favorable legal environment during emergencies through a prioritization of issues and solutions that help public health responses and allocation decisions.⁴⁶ Community health planners should partner with members of the local legal community who are prepared during emergencies to:

• Identify legal issues that may help or hinder allocation decisions as they arise.
• Monitor changing legal norms during emergencies.
• Communicate with lawmakers and policy officials in government and the private sector.
• Develop innovative, responsive legal solutions to reported barriers to allocation decisions.
• Explain legal conclusions through tailored communications to planners and affected individuals.
• Revisit regularly the utility of legal guidance related to allocation decisions.⁴⁷

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1. Hodge, JG, Anderson, ED. Principles and practice of legal triage during public health emergencies. NYU Ann. Surv. Am. L 2008; 64(2): 249-291.
2. Gostin LO, Sapsin JW, Teret SP, Burris S, Mair JS, Hodge JG Jr, Vernick JS. The Model State Emergency Health Powers Act: planning for and response to bioterrorism and naturally occurring infectious diseases. JAMA 2002;288:622.
3. Hodge, JG, Garcia, A, Anderson, ED, Kaufman, T. Emergency legal preparedness for hospitals and health care personnel. Disaster Medicine and Public Health Preparedness 2009; 3:Suppl 1: S37-S44.
4. Center for Law and the Public's Health. Model State Emergency Health Powers Act (MSEHPA) art. V-VI 2001. Available at: http://www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf. Accessed April 15, 2006.
5. Gostin LO, Sapsin JW, Teret SP, Burris S, Mair JS, Hodge JG Jr, Vernick JS. The Model State Emergency Health Powers Act: planning for and response to bioterrorism and naturally occurring infectious diseases. JAMA 2002;288:622.
6. Center for Law and the Public's Health. Model State Emergency Health Powers Act. ? 608 (2001). Available at: http://www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf. Accessed April 15, 2006.
7. Ibid. ? 804 (2001).
8. Ibid. ?? 505-507 (2001).
9. Hodge JG Jr, Gable LA, Calves S. The legal framework for meeting surge capacity through the use of volunteer health professionals during public health emergencies and other disasters. Journal of Contemporary Health Law and Policy 2006;22:5-71.
10. Ibid. 2006:25-26.
11. Ibid.
12. Hodge, JG, Anderson, ED. Principles and practice of legal triage during public health emergencies. NYU Ann. Surv. Am. L 2008; 64(2): 249-291
13. The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. ?? 5122(1), 5191 (2002).
14. Ibid. ?? 5120-5206 (2002).
15. Ibid. ?? 5170, 5191 (2002) (requiring that, prior to requesting Federal assistance from the President, the State Governor must utilize State resources to respond to the emergency, including the activation of the State emergency management plan).
16. Public Health Security and Bioterrorism Preparedness and Response Act of 2002, 42 U.S.C. ? 247d. 2003.
17. The Americans with Disabilities Act of 1990. Pub. L. No. 101-336.
18. The New York "Human Rights Law," New York Executive Law Art. 15 ?290 et seq.
19. Hodge JG Jr. Bioterrorism law and policy: critical choices in public health. Journal of Law, Medicine & Ethics 2002;30:254-255.
20. Hodge, JG, Anderson, ED. Principles and practice of legal triage during public health emergencies. NYU Ann. Surv. Am. L 2008; 64(2): 249-291.
21. Center for Law and the Public's Health. Public health emergency legal preparedness checklist on interjurisdictional legal coordination. Available at http://www.publichealthlaw.net/Resources/BTlaw.htm (2004).
22. Hodge, JG, Anderson, ED Principles and practice of legal triage during public health emergencies. NYU Ann. Surv. Am. L 2008; 64(2): 249-291.
23. Emergency Management Assistance Compact (EMAC), Pub. L. No. 104-321.
24. Intergovernmental Mutual Aid Agreement for the establishment of the Illinois Public Health Mutual Aid System. Available at: http://www.idph.state.il.us/local/mu...ee_9.30.04.pdf. Accessed November 27, 2006.
25. Fox P. Cross-border assistance in emergencies: the New England/eastern Canadian model. New England Journal of International Contemporary Law 2004;11:75.
26. Hodge JG Jr. Legal issues concerning volunteer health professionals and the hurricane-related emergencies in the Gulf Coast region. Public Health Report 2006;121:205-207.
27. Department of Health and Human Services, Assistant Secretary for Preparedness and Response, Emergency system for advance registration of volunteer health professionals (ESAR-VHP)?legal and regulatory issues. 2008Draft report?September 2008).
28. Ibid.
29. Hodge, JG Jr. Legal issues concerning volunteer health professionals and the hurricane-related emergencies in the Gulf Coast region. Public Health Rep 2006;121:205-207.
30. Agency for Healthcare Research and Quality. Altered Standards of Care in Mass Casualty Events., AHRQ Publication No. 05-0043. April 2005. Available at: http://www.ahrq.gov/research/altstand/. Accessed November 27, 2007.
31. Department of Health and Human Services, Assistant Secretary for Preparedness and Response, Emergency system for advance registration of volunteer health professionals (ESAR-VHP)?legal and regulatory issues. 2008Draft report?September 2008).
32. Federal Volunteer Protection Act of 1997. Pub. L. No. 105-19, ? 4, 111 Stat. 218, 219 (1997), 42 U.S.C. ? 14503 (2000); Ala. Code. ? 6-5-336(d)(1) (LexisNexis 2005); Miss. Code Ann. ? 95-9-1(3) (LexisNexis 1972).
33. Department of Health and Human Services, Assistant Secretary for Preparedness and Response, Emergency system for advance registration of volunteer health professionals (ESAR-VHP)?legal and regulatory issues. 2008Draft report?September 2008).
34. Ibid.
35. Emergency Management Assistance Compact (EMAC), Pub. L. No. 104-321.
36. Emergency Management Assistance Compact (EMAC), Pub. L. No. 104-321, art. VI, 100 Stat. at 3880.
37. Matthews G. Expanding Emergency Liability Protection within Existing State Laws: The Work Around Approach. Available at: http://nciph.sph.unc.edu/law/tampa_report2.pdf. Accessed October 1, 2008.
38. The Volunteer Protection Act, 42 U.S.C. 14503(c).
39. Matthews G. Expanding Emergency Liability Protection within Existing State Laws: The Work Around Approach. Available at: http://nciph.sph.unc.edu/law/tampa_report2.pdf. Accessed October 1, 2008.
40. Hodge JG Jr, Calves S, Gable LA, Meltzer E, Kraner S. Risk management in the wake of hurricanes and other disasters: Hospital civil liability arising from the use of volunteer health professionals during emergencies. Michigan State University Journal of Medicine and Law. In press.
41. Hodge, JG, Pepe RP, Henning, WH. Voluntarism in the wake of Hurricane Katrina: The Uniform Emergency Volunteer Health Practitioners Act. Disaster Medicine and Public Health Preparedness 2007; 1:1: 44-50.
42. Hodge JG Jr. The intersection of Federal health information privacy and State administrative law: the protection of individual health data and worker's compensation. Administrative Law Review. 1999;51:117-144.
43. Department of Health and Human Services, Assistant Secretary for Preparedness and Response, Emergency system for advance registration of volunteer health professionals (ESAR-VHP)?legal and regulatory issues. 2008Draft report?September 2008).
44. M.C.L. ?? 418.161(g), 30.411 Sec. 11(1)(b)-(c).
45. Center for Law and the Public's Health. Checklist on local government public health emergency legal preparedness and response. Available at: http://www.publichealthlaw.net/Proje...rgencyPrep.php. Accessed September 17, 2009.
46. Hodge, JG, Garcia, A, Anderson, ED, Kaufman, T. Emergency legal preparedness for hospitals and health care personnel. Disaster Medicine and Public Health Preparedness 2009; 3:Suppl 1: S37-S44.
47. Hodge, JG, Anderson, ED. Principles and practice of legal triage during public health emergencies. NYU Ann. Surv. Am. L 2008; 64(2): 249-291.