Created by faculty, students, and staff at the Center for Law and the Public’s Health at Georgetown and Johns Hopkins Universities (Center) with funding and personnel support from the Health Resources and Services Administration (HRSA), this Report identifies and discusses the legal and regulatory issues that relate to or impact the development and implementation of the state-based Emergency System for Advance Registration of Volunteer Health Professionals (ESAR-VHP), including emergency declarations; licensing, credentialing, and privileging issues; civil and criminal liability issues; and workers’ compensation. The Report examines and summarize areas of law relevant to ESAR-VHP, highlighting important legal issues and presenting timely and germane examples from existing law.
Although the information contained in this Report should be helpful to grantees and others, it does not constitute the official position of HRSA or of the Department of Health and Human Services (DHHS), nor does it constitute legal advice. Legal advice on the issues discussed in this Report is necessarily fact-specific and may vary depending upon state law, the nature of the grantee, and specific circumstances. For specific requests for legal advice, HRSA suggests that each grantee contact its state's Office of the Attorney General or its institution’s legal counsel.
The National Agenda for Public Health Legal Preparedness, which contains 98 action options, is the result of a 2007 summit convened by CDC's Public Health Law Program (PHLP/OCPHP) and the Coordinating Office for Preparedness and Emergency Response (COTPER). The American Medical Association was a summit collaborating organization along with other national organizations representing public health, emergency management, law enforcement, the judiciary, state elective office, legal practice, health care and other key sectors. Summit faculty included, among others, Dr. Ronald Davis, President of the American Medical Association; the Honorable Thurbert Baker, then-President of the National Association of Attorneys General; H. Thomas Wells, President-Elect of the American Bar Association; Dr. Georges Benjamin; and then-Acting HHS Deputy Secretary, Eric Hargan. In 2008, PHLP and COTPER will be convening regional workshops to assist state and local public health officials and their partners in using the action agenda to make concrete improvements in their legal preparedness for public health emergencies.
At the 2008 Interim Meeting of the AMA House of Delegates, the recommendations of Board of Trustees Report 4 "Legal Issues Surrounding the Deployment and Utilization of Licensed Physicians in Response to Declared Disasters" were adopted. The second recommendation provided that "our AMA support the National Conference of Commissioners on Uniform State Laws (NCCUSL) Uniform Emergency Volunteer Health Practitioners Act (UEVHPA) with the liability language of Alternative A."
The UEVHPA was promulgated by the National Conference of Commissioners on Uniform State Laws in 2006 and was amended in 2007. The purpose of the UEVHPA was to develop a uniform and coordinated approach to quickly deploy health practitioners to disaster areas. The UEVHPA is triggered by the declaration of an emergency by an authorized state or local official, is in effect for the duration of that emergency, and applies to all licensed volunteer practitioners who provide health or veterinary services. Importantly, the receipt of compensation for services does not remove a volunteer from protection by the act, unless they are paid pursuant to a pre-existing employment agreement. To receive the protections provided under the UEVHPA, the volunteer practitioner must be registered with an authorized registration system (i.e. ESAR-VHP or MRC). The UEVHPA provides that while an emergency declaration is in effect, those volunteer health practitioners who are registered with a registration system and licensed and in good standing in the state in which the practitioner’s registration is based, may practice in another state to the extent authorized, as if licensed in that state. The UEVHPA does not authorize a practitioner to provide services outside of their scope of practice, even if similarly licensed practitioners in the states would be permitted to provide the services
The UEVHPA provides two alternative sections on immunity from liability for states to consider. Alternative A “provides immunity from liability for ordinary negligence to all volunteer health practitioners and immunity from vicarious liability to the entities engaged in deploying and using them.” Alternative B “provides immunity from liability for ordinary negligence only to practitioners who are nominally compensated in a manner comparable to the federal Volunteer Protection Act and defers to other state law the question whether the entities deploying and using them may be vicariously liable.” Exceptions to protection from liability under both alternatives include: (1) willful misconduct or wanton, grossly negligent, reckless, or criminal conduct; (2) an intentional tort; (3) breach of contract; (4) a claim asserted by a host entity or by an entity located in this or another state which employs or uses the services of the practitioner; or (5) an act or omission relating to the operation of a motor vehicle, vessel, aircraft, or other vehicle. In addition, under the UEVHPA, volunteer health practitioners who are injured or die as a result of providing health or veterinary services are deemed to be an employee of the state for purposes of receiving benefits under the workers’ compensation law.
Since 2006, the UEVHPA has been enacted in 6 states (Utah, Colorado, New Mexico, Indiana, Kentucky, and Tennessee).