Easing barriers to states helping each other in emergencies
While states have the Emergency Management Assistance Compact (EMAC) that facilitates rapid sharing of equipment, personnel, and other resources during times when governors have formally declared an emergency, what can be done in urgent and emergency situations that don't warrant a gubernatorial declaration?
The National Governors Association's (NGA) Center for Best Practices says that although states often face situations that threaten their citizens' health and challenge their public health infrastructure's response capabilities, such incidents rarely rise to the level of declared emergencies, preventing state officials from availing themselves of resources that may be located across a state line. The problem, wrote NGA senior policy analyst Chris Logan in an NGA issue brief, is that there are legal considerations that increase in complexity according to the level of assistance contemplated.
"Information sharing efforts, for example, face few legal obstacles, while efforts to share equipment, use out-of-state laboratories, or utilize out-of-state doctors and nurses raise significant legal questions relating to cost reimbursement, license and credential portability for medical or other personnel, liability, and workers' compensation," he says.
Mr. Logan tells State Health Watch the issue brief looks at what some states have done to overcome the legal barriers and various approaches that have been taken to resolve some of the difficult issues.
He reports that any cross-border mutual aid agreement that envisions the fast and efficient transfer of equipment and/or personnel requires participating states to resolve conflicts or contradictions among applicable laws and regulations.
Mr. Logan says governors don't have absolute authority to declare states of emergency in the wake of natural disasters, terrorist attacks, or disease outbreaks. Such authority is granted by state law and is subject to the existence of specific conditions. State laws also vary in granting governors authority to declare emergencies specific to situations threatening the public health. As a result, the way individual states' laws are written may prevent governors from declaring emergencies even in situations that will test the limits of a state's public health infrastructure.
"Political considerations also may affect a governor's willingness to declare a state of emergency," Mr. Logan tells SHW, because making the declaration can result not only in significant expenditures but also in a public perception that the governor overreacted.
10 states in Mid-America Alliance
In 2004, 10 states — Colorado, Iowa, Kansas, Missouri, Montana, Nebraska, North Dakota, South Dakota, Utah, and Wyoming — launched the Mid-America Alliance, an effort to develop an interstate public health mutual assistance agreement for use in nonemergencies. Mr. Logan says groups of states in other parts of the country are exploring similar efforts among themselves and with states and provinces in Mexico and Canada, and such interstate regional approaches to planning and response are encouraged through the Department of Homeland Security's National Incident Management System and the Centers for Disease Control and Prevention's guidelines for the new state cooperative agreement on Public Health Emergency Preparedness.
Also, under EMAC, party states are responsible for some planning activities, which may provide legal authorization for states to engage with one another in pre-event planning activities for any incident, whether or not the incident results in an emergency declaration. Outside EMAC, according to Mr. Logan, state laws also may allow sharing of epidemiologic information and perhaps epidemiologists (who generally are not licensed by the states) to better detect and control infectious disease outbreaks before they reach disastrous proportions.
Although the EMAC language allows pre-event planning and information sharing among states, at least one legal expert has concluded that it probably does not authorize states to enter into agreements for interstate movement of equipment or resources containing EMAC-like binding provisions governing reimbursement, compensation, and liability in the absence of an emergency declaration. The language stipulates that the compact does not preclude any state from entering into agreements with another state or affect any other agreements already in force between states. According to the compact, supplementary agreements may include provisions for activities such as the evacuation and reception of injured and other people and the exchange of medical, fire, police, public utility, reconnaissance, welfare, transportation, and communications personnel, and equipment and supplies.
The NGA report says some state laws specifically address cross-border mutual aid outside EMAC's bounds, but a more comprehensive mechanism would be useful for states to share assets and personnel quickly and effectively during events that are not declared emergencies. Any such strategy would have to take into account legal issues that EMAC resolves in emergency situations such as cost reimbursement; licensing, credentialing, and privileging; civil liability, and workers' compensation.
Costs incurred in many ways
Mr. Logan notes that states can incur a variety of costs as a result of providing assistance to other states, including 1) direct expenses related to shipping equipment and transporting people and fuel; 2) depreciation costs related to use of machinery and equipment; and 3) potential overtime costs for workers needed to fill in for those deployed as part of a relief effort. EMAC addresses cost reimbursement by requiring that states receiving assistance under the compact pay donor states for "any loss or damage to or expense incurred in the operation of any equipment and the provision of any service in answering a request for aid and for the cost incurred in connection with such requests." It also allows states to donate equipment and services without charge and allows two or more EMAC party states to enter into supplementary agreements establishing different cost allocations.
EMAC states that if a person holds a license, certificate, or other permit issued by any party state to the compact, that person "shall be deemed licensed, certified, or permitted by the state requesting assistance to render aid involving such skill to meet a declared emergency or disaster, subject to such limitations and conditions as the governor of the requesting state may prescribe by executive order or otherwise."
The compact does not compel private health care organizations to grant privileges to out-of-state medical professionals, although the Joint Commission on Accreditation of Health Care Organizations' standard for hospital emergency management plans allows hospital officials, at their discretion, to grant temporary privileges to doctors and licensed practitioners. Interstate mutual-aid agreements for nonemergencies must address not only the need for interstate license portability (at least on a temporary basis), but also the role played by the private sector in credentialing and privileging licensed health care professionals, Mr. Logan adds.
Legal liability questions are significant obstacles to creating interstate mutual-aid agreements, Mr. Logan says, because if patients are injured, harmed, or killed during a response to an incident, the courts will be asked to determine whether the liable party is the out-of-state health professionals, the organizations that provided or accepted the professionals, or the officials administering the program under which the out-of-state professionals were provided.
In addition to common allegations of negligence, breach of privacy, and misrepresentation, liability claims during large-scale public health incidents could result from allegations of substandard care due to post-event patient surges. Liability claims also could arise from use of out-of-state laboratories should an outside facility make a mistake that results in harm or injury. The information transferred from one lab to another is likely to include protected personal health information and liability claims could arise if the receiving laboratory mishandles or misuses the protected information.
EMAC provides that employees of a state providing assistance to another state during an emergency "shall be considered agents of the requesting state for tort liability and immunity purposes; and no party state or its officers or employees rendering aid in another state pursuant to this compact shall be liable on account of any act or omission in good faith on the part of such forces while so engaged …"
The compact specifies that "good faith" does not include willful misconduct, gross negligence, or recklessness. Similar standards may apply for assistance provided in situations that are not emergencies, although states may be less willing to accept liability for out-of-state workers in such situations. Mutual-aid agreements for nonemergencies have to address those concerns, Mr. Logan says.
Another challenge in bringing personnel across state lines without a declaration of emergency is determining who is employing the personnel for purposes of workers' compensation claims. To be resolved is whether the employer is the donor state, the recipient state or, in the case of private sector health professionals, the donor or recipient state private sector health organizations.
Mr. Logan reports some state laws resolve the question by defining volunteers as state employees for the duration of an emergency, but when events are not declared emergencies, those laws may not apply. In those cases, he says, the hospital or other facility that grants temporary privileges to out-of-state health professionals should be considered the employer for compensation purposes. In other states, no such laws exist. EMAC requires member states to provide compensation and death benefits to its employees or their survivors if they are injured or killed while providing assistance to another state "on the same terms as if the injury or death were sustained within their own state."
Mr. Logan advances several strategies he says can be used by participating states to resolve conflicts or contradictions among applicable laws and regulations:
- identify and remedy areas of legal conflict on a case-by-case basis;
- use existing interstate agreements as a basis for cross-border mutual aid;
- establish policies that allow out-of-state professionals to practice under limited circumstances;
- implement the Emergency System for Advance Registration of Volunteer Health Professionals;
- use "sovereign immunity" and "Good Samaritan" protections;
- form a new interstate compact.
Significant legal challenges face any effort to develop interstate mutual-aid agreements for nonemergencies, Mr. Logan concludes. But each of the issues has potential solutions and he offers this advice for governors considering establishing or participating in multistate mutual-aid agreements for situations that don't result in emergency declarations:
- Assess whether your state's laws allow for license portability from other states and consider joining existing multistate agreements such as the Nurse Licensure Compact.
- Review your state's policies for using volunteer disaster workers, particularly as the policies relate to worker's compensation claims.
- Assess whether sovereign immunity or Good Samaritan laws or other statutes provide liability protections to volunteer health professionals.
- Assess whether the laws in your state deal effectively with the issue of private health organizations' ability to credential and privilege out-of-state medical professionals and work with the private sector to develop policies and protocols to allow for use of out-of-state professionals.
- Determine whether existing interstate agreements or arrangements address issues of cost recovery, liability, and workers' compensation and whether those arrangements might be applicable to situations affecting the public health.
- Work with governors in neighboring states to determine an appropriate strategy for aligning laws and regulations to facilitate cross-border movement of public health professionals in nonemergencies.