Helping the Helper (web article)

Easing Legal Hurdles Could Aid Volunteer Health Personnel Responding to Emergencies

Thousands of Americans, particularly heath professionals, are ready to volunteer to aid the survivors of disasters and catastrophic events like the 9/11 attacks and Hurricane Katrina. Despite the steady outpouring of goodwill, volunteers were largely underutilized in many disasters because of legal questions over out-of-state licensure, liability and defining the role volunteers can play in an emergency.

To improve the way volunteers are utilized during disasters, James G. Hodge, Jr., JD, LLM, associate professor in the Bloomberg School’s Department of Health Policy and Management, and colleagues at the Center for Law and the Public’s Health have worked with the National Conference of Commissioners on Uniform State Laws (NCCUSL) to develop the Uniform Emergency Volunteer Health Practitioners Act. The Office of Communications and Public Affairs spoke with Hodge to learn how the provision could help states better utilize volunteer health practitioners during emergencies.

Question: What will the Uniform Emergency Volunteer Health Practitioners Act provide?

Answer: This act attempts to provide a strong legal framework that facilitates the use and deployment of volunteer health practitioners during declared emergencies. These are people who provide essential services when you really need them most, like during Hurricane Katrina or other public health disasters. The act provides structural and substantive positions that are designed to facilitate their deployment.

The utilization of volunteer assistance is a major issue that has come up not just during Hurricane Katrina, but in prior emergencies like 9/11 and in other instances. We have a great, well-organized system for gathering and finding out who is interested in volunteering within the health care sectors, the public health sector and even in mortuary services. What many jurisdictions lack, however, are effective legal provisions that pave the way for these volunteers to be fully utilized.

Question: Why do we need to address the issues surrounding the use of volunteer health practitioners?

Answer: There is a lot of apprehension about the sort of role volunteers will play during emergencies. Volunteers are not always local people who are willing to step in and provide services. Many times they come from other states (or even countries). As was the case during Hurricane Katrina, volunteers came from all over the country to Louisiana and Mississippi to offer help. In most cases, they had specific skills and sometimes excellent training to handle emergency situations, but too often they were not fully utilized. Liability concerns were a big part of the problem. Licensure issues were another concern.

Question: How is licensure a problem?

Answer: Many states do not have automatic provisions for recognizing out-of-state licenses during an emergency. For instance, if you have a license to practice medicine in Maryland, you cannot go practice medicine in another state without getting another license, even under emergency circumstances.

Louisiana did have a legal provision recognizing out-of-state licenses during declared emergencies. It was approved before Hurricane Katrina as part of Louisiana’s adoption of portions of the Center’s Model State Emergency Health Powers Act. As a result, Louisiana officials were able to usher in out-of-state volunteers and allowed them to provide the specific medical services that were needed to meet surge capacity (increased number of patients) at hospitals or staff emergency shelters. However, Mississippi did not have a similar statutory provision.

The Uniform Emergency Volunteer Health Practitioners Act features out-of-state licensure recognition whenever an emergency is declared. Thus, if you are an out-of-state volunteer registered with an approved volunteer system, like state-based ESAR-VHP (Emergency System for Advance Registration of Volunteer Health Professionals) programs or local Medical Reserve Corp units, your medical license will be recognized by the host state. Your licensure will be respected and your ability to provide services will be allowed within certain practice limitations. The benefit to the host state is that it may rely on the sending state (through its volunteer registration system) to check on the timelines and adequacy of the volunteer’s license. This greatly facilitates the immediate and efficient use of volunteers.

Question: What about liability issues?

Answer: There are liability questions from all sides concerning the use of volunteers during emergencies: volunteers, the entities that send them and the entities that host them. For the volunteers, personal liability is the number one issue. They want to know if they will be held personally responsible if something goes wrong while providing emergency aid.

While the current version of the act does not fully address all the liability questions yet, it will likely feature strong liability protections for volunteers with some exceptions, such as if a volunteer were to act in a criminal way or act outside the scope of one’s practice. For example, a nurse cannot perform all of the functions of a doctor just because an emergency has occurred.

Question: What about life or death situations? In an emergency health practitioners may be forced to make a judgment call on whether to act to save someone’s life.

Answer: That is an important issue. We built language into the act to address those types of situations. Of course, if you were a nurse there is a lot you could do because you have significant medical training, but you cannot go beyond the scope of your practice. The act does not try to limit anyone into doing only that which they would do in a non-emergency. Rather, volunteers must act within their knowledge and their scope of their practice.

Question: Has any state passed the act?

Answer: A number of organizations—American Public Health Association, Association of State and Territorial Health Officials, American Medical Association, American Bar Association, and others—have played a role in helping to draft this model legislation. The measure is now being circulated to state legislatures across the country by the National Conference of Commissioners on Uniform State Laws. We’re making legislators aware that this model act is available for passage.

We’ve seen provisions included in the act pass in several jurisdictions over the last year even as we were drafting the measure. We are very confident that the legislative activity will continue and that we will see a number of states pass this act in whole or in part.

You helped draft the Model State Emergency Health Powers Act following the terrorist attacks of September 11 and the anthrax attack in 2001. How does the Uniform Emergency Volunteer Health Practitioners Act differ from your earlier work?

The Model State Emergency Health Powers Act, which we drafted at the Center for Law and the Public’s Health, helped create an entire new field of public health law focused on emergencies. Legal provisions affecting volunteer health practitioners fit neatly into this larger field. The Uniform Act is in many ways a continuation of the work we started several years ago.

For example, the Emergency Health Powers Act includes a provision to deal with out-of-state volunteer licensure issues. Many states, however, did not pick up on it. Very few states have crafted or passed legislation related to volunteers.

The Uniform Emergency Volunteer Health Practitioners Act goes into greater legislative detail about who is considered a volunteer, what they can do during an emergency, how to use these volunteers and when they will be protected from liability. The act, much like the Center’s Model Emergency Act, recognizes that any legal wrangling you have to do in an emergency is not time well spent. In an emergency, you need strong statutory guidance that automatically supports essential emergency functions.—Tim Parsons