UNIFORM EMERGENCY VOLUNTEER HEALTH
PRACTITIONERS ACT
SECTION
1. SHORT TITLE. This [act] may be cited as the Uniform Emergency
Volunteer Health Practitioners Act.
SECTION
2. DEFINITIONS. In this [act]:
(1)
“Disaster relief organization” means an entity that provides emergency or
disaster relief services that include health or veterinary services provided by
volunteer health practitioners and that:
(A)
is designated or recognized as a provider of those services pursuant to a
disaster response and recovery plan adopted by an agency of the federal
government or [name of appropriate governmental agency or agencies]; or
(B)
regularly plans and conducts its activities in coordination with an agency of
the federal government or [name of appropriate governmental agency or
agencies].
(2)
“Emergency” means an event or condition that is an [emergency, disaster, or
public health emergency] under [designate the appropriate laws of this state, a
political subdivision of this state, or a municipality or other local
government within this state].
(3) “Emergency declaration” means a declaration of
emergency issued by a person
authorized
to do so under the laws of this state [, a political subdivision of this state,
or a municipality or other local government within this state].
(4) “Emergency Management Assistance Compact” means
the interstate compact
approved
by Congress by Public Law No. 104-321,110 Stat. 3877 [cite state statute, if
any].
(5)
“Entity” means a person other than an individual.
(6)
“Health facility” means an entity licensed under the laws of this or another
state to provide health or veterinary services.
(7)
“Health practitioner” means an individual licensed under the laws of this or
another state to provide health or veterinary services.
(8)
“Health services” means the provision of treatment, care, advice or guidance,
or other services, or supplies, related to the health or death of individuals
or human populations, to the extent necessary to respond to an emergency,
including:
(A)
the following, concerning the physical or mental condition or functional status
of an individual or affecting the structure or function of the body:
(i)
preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative
care; and
(ii)
counseling, assessment, procedures, or other services;
(B)
sale or dispensing of a drug, a device, equipment, or another item to an
individual in accordance with a prescription; and
(C)
funeral, cremation, cemetery, or other mortuary services.
(9)
“Host entity” means an entity operating in this state which uses volunteer
health practitioners to respond to an emergency.
(10)
“License” means authorization by a state to engage in health or veterinary
services that are unlawful without the authorization. The term includes
authorization under the laws of this state to an individual to provide health
or veterinary services based upon a national certification issued by a public
or private entity.
(11)
“Person” means an individual, corporation, business trust, trust, partnership,
limited liability company, association, joint venture, public corporation,
government or governmental subdivision, agency, or instrumentality, or any
other legal or commercial entity.
(12)
“Scope of practice” means the extent of the authorization to provide health or
veterinary services granted to a health practitioner by a license issued to the
practitioner in the state in which the principal part of the practitioner’s
services are rendered, including any conditions imposed by the licensing
authority.
(13)
“State” means a state of the United States, the District of Columbia, Puerto
Rico, the United States Virgin Islands, or any territory or insular possession
subject to the jurisdiction of the United States.
(14) “Veterinary services” means the provision of
treatment, care, advice or guidance, or
other
services, or supplies, related to the health or death of an animal or to animal
populations, to the extent necessary to respond to an emergency, including:
(A)
diagnosis, treatment, or prevention of an animal disease, injury, or other
physical or mental condition by the prescription, administration, or dispensing
of vaccine, medicine, surgery, or therapy;
(B) use of a
procedure for reproductive management; and
(C)
monitoring and treatment of animal populations for diseases that have spread or
demonstrate the potential to spread to humans.
(15)
“Volunteer health practitioner” means a health practitioner who provides health
or veterinary services, whether or not the practitioner receives compensation
for those services. The term does not include a practitioner who receives
compensation pursuant to a preexisting employment relationship with a host
entity or affiliate which requires the practitioner to provide health services
in this state, unless the practitioner is not a resident of this state and is
employed by a disaster relief organization providing services in this state
while an emergency declaration is in effect.
Legislative Note: Definition of “emergency”:
The terms “emergency,” “disaster,” and “public health emergency” are the most
commonly used terms to describe the circumstances that may lead to the issuance
of an emergency declaration referred to in this [act]. States that use other
terminology should insert the appropriate terminology into the first set of
brackets. The second set of brackets should contain references to the specific
statutes pursuant to which emergencies are declared by the state or political
subdivisions, municipalities, or local governments within the state.
Definition of “emergency declaration”: The
references to declarations issued by political subdivisions, municipalities or
local governments should be used in states in which these entities are
authorized to issue emergency declarations.
Definition of “state”: A state may expand
the reach of this [act] by defining this term to include a foreign country,
political subdivision of a foreign country, or Indian tribe or nation.
Comment
1. A disaster relief organization is an
entity that provides disaster relief services or assistance in response to an
emergency declaration. For example, the American Red Cross, which has been
chartered by Congress to provide emergency relief services, constitutes a
disaster relief organization as the term is used in this act. Other members of
the National Voluntary Organizations Active in Disaster, Inc. (NVOAD) that
provide similar services may also be considered disaster relief organizations.
The definition limits such
organizations, however, only to those expressly designated in federal or
state disaster relief plans, or which regularly plan and conduct their
activities in coordination with state or federal agencies. As used in this
context, the reference to “its activities” means emergency or disaster relief
services that include the provision of health or veterinary services. This
definition defines the term “disaster relief organization” narrowly to reflect
the special rights and privileges afforded to disaster relief organizations by
this act. Disaster relief organizations are one of only three types of private
entities, including national or regional associations of healthcare licensing
boards or health practitioners and health facilities providing comprehensive
inpatient and outpatient care, that are authorized by Section 5(a)(4)(C) to
establish and operate registration systems for volunteer health practitioners
(without prior governmental approval). In addition, although generally the
term “volunteer health practitioners” does not include individuals with a
pre-existing employment relationship with a “host entity,” employees of
disaster relief organizations acting as host entities may be classified as
volunteers health practitioners when their regular place of employment is located
in another state.
2. This act does not define the circumstances
and conditions that constitute an emergency, but rather defers to other
laws currently in effect in all states, including laws providing for the
declaration of public health emergencies. In deciding which laws to cross
reference within this definition, states should include laws using different
terminology, such as a “disaster,” “crisis” or “catastrophe.” Because Section
4(a) allows states to limit or restrict the application of this act when
issuing an emergency declaration, states should include within this definition
all potentially applicable laws to accomplish the broad objectives of this
act. No matter how a state defines “emergency,” its declaration is the trigger
through which the protections of this Act go into effect.
3. An emergency declaration is the
official pronouncement made by a state or local official authorized to declare
the existence of an “emergency” pursuant to laws referenced in paragraph 2 that
authorizes the use, deployment, and protection of volunteer health
practitioners who comply with the provisions of this uniform law. This act
defers to other state laws incorporated into the definition of the term
“emergency,” however, to establish the methods, procedures, and requirements
for issuing and publishing an emergency declaration.
4. The Emergency Management Assistance
Compact (EMAC), which is currently in effect in all 50 states, specifies
procedures for the use of governmental resources, including state and local
employees who are health practitioners, to provide for mutual assistance
between states to manage declared emergencies. This act supplements the
provisions of EMAC and other state mutual aid compacts by authorizing the
interstate use of volunteer health practitioners who are not state and local
employees in same manner as government employees may be used under EMAC and
other state compacts. In addition, Section 9 of this act authorizes the
incorporation of private sector health practitioners into “state forces”
deployed in response efforts through EMAC and other mutual aid agreements. The
term EMAC includes the provisions of the Compact in effect at the time of
adoption of this act and any amendments subsequently enacted to the Compact.
5. An entity may include any public or
private legally recognized type of person, but does not include an individual.
The term does not include individuals so as to distinguish the term “health
facility” from the term “health practitioner.”
6. A health facility is an entity engaged
in the provision of health or veterinary services in its ordinary course of
business or activities. The term does not include individual health
practitioners. Specific types of facilities are not listed within the
definition to avoid a restrictive interpretation of the term to mean only
facilities similar to the listed entities as provided by the statutory
construction doctrine of ejusdem generis. Instead, all types of
entities authorized by state law to provide health or veterinary services are
defined as health facilities.
7. A health practitioner is an
individual, not an entity, who is licensed in any state, including the host
state, to provide health or veterinary services or who holds a national
certificate that is recognized by the host state as equivalent to licensure for
purposes of providing health services to individuals or human populations or
veterinary services to animals or animal populations. The term makes reference
to the laws of other states for the purpose of allowing practitioners licensed
in other states to practice as volunteer health practitioners subject to the
requirements and limitations provided by this act, including the limitations on
their scope of practice as provided by Section 8(a). The inclusion of veterinary
practitioners within the term recognizes the vital role that veterinary
practitioners often serve in emergency response efforts (as was well recognized
following Hurricane Katrina), but does not imply or suggest that veterinarians
are authorized to provide human health services during emergencies, nor does it
imply or suggest that nonveterinarians are authorized to provide veterinary
services. The term includes professionals providing services to “populations”
to make it clear that individuals licensed for the purpose of providing public
health services, rather than services to individual consumers, are included
within the definition. Individual types of professions are not listed within
the definition for the same reason that individual types of health facilities
are not listed in Paragraph 6.
8. Health services are broadly defined,
based on a similar definition of the term from the HIPAA Privacy Rule, 45
C.F.R. 160.103, to include those services provided by volunteer health
practitioners that relate to the health or death of individuals or populations
and that are necessary to respond to an emergency. They include direct patient
health services, public health services, provision of pharmaceutical products,
and mortuary services for the deceased. On an individual level, health services
include transportation, diagnosis, treatment, and care for injuries, illness,
diseases, or pain related to physical or mental impairments. On the population
level, health services may include the identification of injuries and diseases,
and an understanding of the etiology, prevalence, and incidence of diseases,
for groups or members within the population. This may entail public health
case finding through testing, and screening, or medical interventions (e.g.,
physical examinations, compulsory treatment, immunizations, or directly
observed therapy (DOT)). On a broader scale, states may implement traditional
public health activities including surveillance, monitoring, and epidemiologic
investigations. The term does not include services that do not provide direct
health benefits to individuals or populations. For example, ancillary services
(e.g., administrative tasks, medical record keeping, transportation of
medical supplies) are not health services for purposes of this act.
9. A host entity is a health entity,
disaster relief organization, or other entity that uses volunteer health
practitioners to provide health or veterinary services during an emergency.
Unlike entities that facilitate the use or deployment of volunteers, the host
entity is responsible for actually delivering health services to individuals or
human populations or veterinary services to animals or animal populations
during the emergency. Host entities may thus include disaster relief organizations,
hospitals, clinics, emergency shelters, doctors’ offices, outpatient centers,
or any other places where volunteer health practitioners may provide health or
veterinary services. Host entities must comply with the requirements of
Section 4(c) to be authorized to use volunteer health practitioners and have
the authority under Section 8(d) to restrict the types of services that
volunteer health practitioners may provide.
10. A license is distinct from a
non-governmental certification or other privately issued recognition that may
be used to designate competency in a particular profession or area of
practice. It is a state-granted designation that regulates the scope of
practice. Licensing laws may either prohibit unlicensed persons from providing
services reserved for licensed practitioners or prohibit unlicensed persons
from holding themselves out to the public as a member of a profession. An
authorization to provide health or veterinary services pursuant to a national
certification is included in the definition to clarify that a tangible
certificate or prior government authorization may not in some circumstances be
necessary for a governmental permission to constitute a license. Nothing in
this definition, however, is intended to allow individuals holding national
certifications to provide health or veterinary services except as otherwise
authorized by law. Instead, pursuant to Sections 8(a) and (e), an individual
holding a national certification may function as a volunteer health practitioner
only to the extent authorized to do so by the laws of the state in which the
individual primarily practices and by the laws of the host state in which an
emergency is declared.
11. A person is defined broadly to
encompass individuals and entities.
12. Scope of practice is used to define
the extent of the authorization provided to a volunteer health practitioner to
provide health or veterinary services during an emergency. Scope of practice
may be established by laws, regulations or policies established by licensure
boards or other regulatory agencies of the state in which a practitioner is
licensed and primarily engages in practice. Scope of practice also includes
any conditions that may be imposed on the practitioner’s authorization to
practice, including instances where state law recognizes the existence of a
license but declares practice privileges to be “inactive.” The term is defined
by reference to the laws of the state in which the principal part of a
practitioner’s services are provided to establish a single standard applicable
to practitioners licensed to practice in multiple states. This act defers to
relevant state laws to determine whether a practitioner with an inactive
license may serve as a volunteer health practitioner. To the extent the law of
the state in which an individual is licensed and primarily engages in practice
allows a practitioner with an inactive license to practice, either generally,
only during emergencies, or only in a volunteer capacity, such an individual
may practice in a “host state” consistent with the requirements of this uniform
law. On the other hand, if the law of the state in which an individual is
licensed only allows an individual with an inactive license to practice if the
license is renewed or reactivated (typically by satisfying continuing education
requirements and paying additional registration fees), then the individual may
only function as a volunteer health practitioner following the renewal or
activation of the license.
13. A state is any territory or insular
possession subject to the jurisdiction of the United States. States
implementing this Act may also choose to include within the definition of
“state” an Indian tribe, nation, or foreign government and its political
subdivisions. States having entered into emergency response compacts with
foreign jurisdictions (e.g., members of the New England Emergency Assistance
Compact include Canadian Provinces) should consider expanding the definition to
include such jurisdictions.
14. Veterinary services are services
pertaining to the health or death of animals or animal populations as distinct
from health services provided to humans or human populations. Veterinary
services do include, however, the monitoring or treatment of zoonotic diseases
in animals for the purposes of protecting human populations.
15. A volunteer health practitioner is an
individual who voluntarily provides health or veterinary services during a
declared emergency. Unlike many existing federal and state legal definitions
of volunteers that require the individual act without compensation, this
definition and the Act contain no such requirement. Thus, the volunteer status
of a health practitioner is not compromised by any compensation awarded to the
practitioner prior to, during the course of, or subsequent to the declared
emergency. Such compensation, however, must not arise from a preexisting
employment relationship with a host entity or affiliate unless the practitioner
does not reside in the state in which the emergency is declared and is employed
by a disaster relief organization providing health or veterinary services in that
state while an emergency declaration is in effect.
This definition differs from many legal
definitions of “volunteer” that often characterize a volunteer as an individual
who does not receive compensation for services. The federal Volunteer
Protection Act (VPA) affords volunteers various protections (including from
civil liability), but they cannot be compensated beyond reimbursement for
expenses incurred or minimal compensation. See 42 U.S.C. § 14505(6). In
Colorado, for example, a volunteer may not receive compensation other than
reimbursement for actual expenses incurred. C.R.S. 13-21-115.5 (3)(c)(I). This
characterization also holds in many states that afford civil liability
protections for volunteers. In Delaware, for example, only “medical providers
who provide their services without compensation” are entitled to liability protections
as volunteer health practitioners. 10 Del. C. § 8135 (c)(1) (2006).
This definition recognizes, however, that the
principal basis for defining a volunteer health practitioner is not whether the
practitioner is compensated but whether the practitioner’s actions are
volitional. In other words, compensation outside an employment relationship
with a host entity is inconsequential in establishing whether an individual is
or is not a volunteer. What matters is that the volunteer is acting freely in
choosing to provide health or veterinary services in emergency circumstances.
This definition thus expands the pool of potential volunteer health
practitioners who may enjoy the protections of this act to those who may be
compensated in some way.
Part of the justification
for this more expansive view of voluntarism relates to the positive effects of
compensation to support volunteers during emergencies. Many prospective
volunteer health practitioners are licensed individuals working in existing health
facilities. They may seek to volunteer knowing that their existing employers
will continue to compensate them even while they are away. The volunteers may
be able to use their sick or vacation days for this purpose, or their employers
may simply allow them to volunteer without using these benefits. Some disaster
relief organizations may provide some nominal sums to volunteer health
practitioners to support their efforts. Compensation in these or other
instances encourages certain individuals, who may not otherwise be able to act,
to involve themselves in relief efforts.
Many disaster relief entities may receive
reimbursement for expenses incurred or services provided through particular
government agencies. Sometimes, such expenditures can impede the participation
of major volunteer organizations. The MRC, for example, reported that one
barrier to the participation of some if its local units was that they were “not
eligible for Federal Emergency Management Agency reimbursement for services
rendered in an emergency (American Red Cross and Salvation Army are currently eligible).”
Medical Reserve Corps
Hurricane Response Final Report 18
(March 13, 2006). The Administration on Aging (AoA) reiterated that health
providers “need to be reimbursed for care provided to patients in
hurricane-affected areas and evacuee areas.” Summary of Federal Payments
Available for Providing Health Care Services to Hurricane Evacuees and
Rebuilding Health Care Infrastructure 2 (Agency on Aging, October
2005). This is particularly
necessary to “facilitate their ongoing operations and compensate for additional
costs and unanticipated utilization of services.”
A preexisting employment relationship with a host
entity to provide health or veterinary services in the host state precludes a
health practitioner from being a “volunteer” for purposes of the act. This is
distinct from the mere provision of compensation because the practitioner is
adhering to the terms of the employment contract. This is significant for a
number of reasons. First, an individual cannot concurrently be an employee and
a volunteer within a host entity. This would obfuscate the legal obligations
and protections afforded under existing state laws. An employee has a duty to
provide services that stems from the employment relationship.
Second, dual status as an employee and volunteer
would undermine the purpose of, and protections afforded under, this act. The
purpose of the act is to create an environment that integrates volunteer health
practitioners into an emergency response. Converting employees into volunteers
would be inconsistent with this objective by potentially negating preexisting
duties of health practitioners. A health practitioner that was previously
obligated to provide a particular service because of an employment relationship
should not be encouraged to abscond from that responsibility upon the
declaration of an emergency.
A unique situation may arise where a corporation
conducts its business through multiple locations and deploys staff to provide
health or veterinary services at a site that has been affected by the
emergency. A pharmacy chain, for example, may have thousands of locations
throughout the United States, each of which is owned by the corporation. Each
employee at any store location is an employee of the larger corporation. During
a large-scale event, some of the chain’s stores could be overwhelmed with
demands for prescription orders from existing and new patients. The
corporation might seek to deploy pharmacists from out-of-state to voluntarily
assist in stores or mobile emergency pharmacies within the geographic area
impacted by the emergency. During a declared emergency, these pharmacists
would qualify as “volunteer health practitioners.” The employees that were
under a preexisting employment contract with the store in the host state that
received the assistance, however, would still be employees subject to the terms
of their relationship with the corporation. These employees would not be
considered volunteers due to their preexisting employment obligation to provide
services in the host state.
The current definition waives the
preexisting-employment exemption for out-of-state employees of disaster relief
organizations. Disaster relief organizations are often nonprofit organizations
that are self-sustaining and must unilaterally bear the costs associated with
their efforts. This definition is in accord with the nature and role of
disaster relief organizations in an emergency response and existing federal
statutes acknowledging the same. The purpose of this exception is not to create
a special class of employees but rather to recognize the vital role of disaster
relief organizations that are asked by state or local authorities to oversee
and manage emergency response efforts. For example, an individual employed by
the Red Cross as a nurse in Alabama is required to be licensed by Alabama to
engage in nursing in Alabama during an emergency, but is authorized to practice
nursing for the Red Cross in California by this act during an emergency even if
the individual is not licensed as a nurse by California.
SECTION
3. APPLICABILITY TO VOLUNTEER HEALTH PRACTITIONERS. This
[act] applies to volunteer health practitioners registered with a registration
system that complies with Section 5 and who provide health or veterinary
services in this state for a host entity while an emergency declaration is in
effect.
Comment
Under existing state and local laws, an
emergency is initiated with its declaration (as determined in accordance with
existing state or local laws) and is terminated usually upon subsequent
proclamation by an authorized state or local agency or official. The legal
landscape for responding to natural disasters, public health threats, or other
exigencies changes instantly with the declaration of a state of emergency. Accommodations
must be made to ensure the efficient deployment and use of volunteer health
practitioners to meet surge capacity in existing health facilities, emergency
shelters, or other places where health or veterinary services are needed. This
section authorizes volunteer health practitioners to provide health or
veterinary services for the duration of the emergency and must be interpreted in
pari materia with the other provisions of this act. As a result, this
section only authorizes volunteer health practitioners to provide health or
veterinary services in the state if all of the other requirements of the act
are satisfied, such as registration, compliance with scope of practice
limitations, and compliance with any modifications or restrictions imposed by the
host state or host entity during an emergency.
This act applies only during the declared
emergency, and thus a state that wants to invoke its provisions in anticipation
of an impending disaster so that volunteer health practitioners are more
readily available when the disaster occurs must declare an emergency under laws
of the state other than this act. Special provisions were not included in this
act to allow the use of volunteer health practitioners in advance of
emergencies because most jurisdictions typically issue emergency declarations
in advance of actual emergency events so as to facilitate the effective
deployment of emergency response services. Similarly, special provisions are
not included in this act to authorize the use of out-of-state practitioners in
emergency planning exercises because planning exercises do not involve the
actual provision of health or veterinary services for which health care
licensing is typically required.
SECTION
4. REGULATION OF SERVICES DURING EMERGENCY.
(a)
While an emergency declaration is in effect, [name of appropriate governmental
agency or agencies] may limit, restrict, or otherwise regulate:
(1)
the duration of practice by volunteer health practitioners;
(2)
the geographical areas in which volunteer health practitioners may practice;
(3)
the types of volunteer health practitioners who may practice; and
(4)
any other matters necessary to coordinate effectively the provision of health
or veterinary services during the emergency.
(b)
An order issued pursuant to subsection (a) may take effect immediately, without
prior notice or comment, and is not a rule within the meaning of [state
administrative procedures act].
(c)
A host entity that uses volunteer health practitioners to provide health or
veterinary services in this state shall:
(1)
consult and coordinate its activities with [name of the appropriate
governmental agency or agencies] to the extent practicable to provide for the
efficient and effective use of volunteer health practitioners; and
(2)
comply with any laws other than this [act] relating to the management of
emergency health or veterinary services, including [cite appropriate laws of
this state].
Comment
While Section 3 authorizes volunteer health
practitioners to provide health or veterinary services during a declared
emergency, Section 4(a) clarifies that these services may be subject to limits,
restrictions, or regulations set forth by the appropriate emergency management
or public health agency that is responsible for overseeing or managing
emergency response efforts. These limits, restrictions, or regulations may
relate to (1) the duration of practice by volunteer health practitioners, (2)
the geographical areas in which volunteer health practitioners may practice,
(3) the class or classes of volunteer health practitioners who may practice,
and (4) any other matters necessary to coordinate effectively the provision of
health or veterinary services. Additional restrictions concerning the type and
scope of services provided by volunteer health practitioners by the state
licensing board or other agency that regulates health practitioners are also
permitted during the emergency pursuant to Section 8(c).
The provisions of Section 4(a) and 8(c)
recognize that the services of volunteer health practitioners may be required
only (1) for a portion of the period of time an emergency declaration is in
effect; (2) in certain substantially affected geographic areas; or (3) in
certain critically impacted professional fields. The power to limit or
restrict the activities of volunteer health practitioners includes the
authority to determine that no volunteer health or veterinary services are
needed to respond to an emergency.
The approach taken by this act to authorize the
use of volunteer health practitioners following any emergency declaration,
unless otherwise ordered pursuant to Section 4(a) or 8(c), is intended to
create a system that can function autonomously even when communications are
disrupted or when public officials are forced to dedicate their time and
attention to more pressing matters than coordinating volunteer health
practitioners. This approach is consistent with many current disaster
management plans which rely upon the deployment of resources by critical
non-governmental organizations without a specific order, directive or request
from government agencies. During the response to Hurricane Katrina, medical
and public health professionals had to improvise and use their own initiative
because efforts to deploy them from staging areas were extremely time-consuming
and failed to adequately get them to areas where their services were most
needed. The Federal Response to Hurricane Katrina: Lessons Learned 46
(The White House, February 2006).
The provisions of this act presumptively
allowing volunteer health practitioners to respond to emergencies unless
directed otherwise are carefully balanced by the provisions of Section 4(c)
which (1) require volunteer health practitioners to work through local “host
entities” and (2) mandate host entities to consult and coordinate their
activities with the agency(ies) responsible for managing the emergency response
to ensure that all volunteer health practitioners are being used in an
efficient and effective manner. Subsection (c)(1) is intended to encourage
host entities to utilize the services of volunteer health practitioners in
concert and to discourage host entities and the volunteers that provide care
under them from acting pursuant to their own judgments where such judgments may
conflict with the objectives as set forth by the appropriate government
agency. Under subsection (c)(2), host entities must adhere to all laws
relating to the management of emergency health or veterinary services. This
caveat builds upon subsection (c)(1) by setting the initial parameters of
conduct during the emergency response. Namely, the laws relating to the
management of health or veterinary services in the host state shall govern
unless they are modified or restricted by the appropriate state agency(ies) pursuant
to Section 8. This act is not intended, however, to govern or control the
extent to which host entities must utilize volunteer health practitioners under
the direction and control of local emergency management agencies. Instead, it defers
decisions regarding the extent with which emergency management services are
coordinated and controlled to the other laws made applicable to host entities
and volunteer health practitioners by subsection (c)(2).
SECTION
5. VOLUNTEER HEALTH PRACTITIONER REGISTRATION SYSTEMS.
(a)
To qualify as a volunteer health practitioner registration system, a system
must:
(1)
accept applications for the registration of volunteer health practitioners
before or during an emergency;
(2)
include information about the licensure and good standing of health
practitioners which is accessible by authorized persons;
(3)
be capable of confirming the accuracy of information concerning whether a
health practitioner is licensed and in good standing before health services or veterinary
services are provided under this [act]; and
(4)
meet one of the following conditions:
(A)
be an emergency system for advance registration of volunteer health-care
practitioners established by a state and funded through the Health Resources
Services Administration under Section 319I of the Public Health Services Act,
42 USC Section 247d-7b [as amended];
(B)
be a local unit consisting of trained and equipped emergency response, public
health, and medical personnel formed pursuant to Section 2801 of the Public
Health Services Act, 42 U.S.C. Section 300hh [as amended];
(C) be operated by a:
(i)
disaster relief organization;
(ii)
licensing board;
(iii)
national or regional association of licensing boards or health practitioners;
(iv)
health facility that provides comprehensive inpatient and outpatient
health-care services, including a tertiary care and teaching hospital; or
(v)
governmental entity; or
(D)
be designated by [name of appropriate agency or agencies] as a
registration system for purposes of this [act].
(b) While an emergency declaration is in
effect, [name of appropriate agency or agencies], a person authorized to act on
behalf of [name of governmental agency or agencies], or a host entity, may confirm
whether volunteer health practitioners utilized in this state are registered
with a registration system that complies with subsection (a). Confirmation is
limited to obtaining identities of the practitioners from the system and
determining whether the system indicates that the practitioners are licensed
and in good standing.
(c)
Upon request of a person in this state authorized under subsection (c), or a
similarly authorized person in another state, a registration system located in
this state shall notify the person of the identities of volunteer health
practitioners and whether the practitioners are licensed and in good standing.
(d)
A host entity is not required to use the services of a volunteer health
practitioner even if the practitioner is registered with a registration system
that indicates that the practitioner is licensed and in good standing.
Legislative Note: If this state uses a
term other than “hospital” to describe a facility with similar functions, such
as an “acute care facility”, the final phrase of subsection (b)(4) should
include a reference to this type of facility – for example, “including a
tertiary care, teaching hospital, or acute care facility.”
Comment
Section 5 authorizes the use of each of the
various types of registration systems found to be effective in responding to
the Gulf Coast Hurricanes of 2005. These systems include not only federally
sponsored local Medical Reserve Corps, ESAR-VHP systems, and other systems
expressly created under federal or state laws, but also registration systems
established by disaster relief organizations, such as Disaster Human Resources
System of the American Red Cross; systems established by associations of the
state licensing boards, such as the Federation
of State Medical Licensing Boards, the Council of Nurse Licensing Boards and
the Association of State and Provincial Psychology Licensing Boards; systems
established by national associations of health professions, including the
American Medical Association, the American Nurses Association, the American
Psychology Association, the National Association of Social Workers, the
American Counseling Association, the National Association of Chain Drug Stores,
and the American Veterinary Medicine Association; and systems established by
major tertiary care hospital systems. This act allows each of these various
types of organizations to establish and operate registration systems without
explicit governmental approval because they have demonstrated the resources,
competence and reliability to review and communicate information regarding the
professional qualifications of health practitioners. In addition, the act
recognizes registration systems operated by state governments or by any other
organization granted approval to establish a registration system by any state.
This
act does not require or authorize a state to designate or approve registration
systems. The experience of the multiple entities that successfully recruited
and verified the credentials following the Gulf Coast Hurricanes of 2005 showed
that such a requirement is unnecessary and inefficient in deploying and
utilizing volunteer health practitioners. Instead, this act empowers and
legitimizes the operations of numerous types of public and nongovernmental
organizations that have consistently demonstrated their ability to properly
recruit, train, deploy and verify the credentials of volunteer health
practitioners.
This act designates three core responsibilities
of registration systems. Each system must (1) facilitate the registration of
volunteer health practitioners prior to, or during, the time their
services may be needed; (2) maintain organized information about the volunteers
that is accessible by authorized personnel; and (3) be capable of being used to
verify the accuracy of information concerning whether the volunteers are
licensed and in good standing. While registration systems may also perform
other types of functions, such as recruiting and training volunteers or
coordinating their deployment with states and disaster relief organizations,
they are not required to do so to maintain as much flexibility as possible to
authorize the operations of diverse types of registration systems able to
deliver different types of resources that may be needed in response to
emergencies. Similarly, this
act does not prohibit or prevent registration systems from establishing
additional registration requirements beyond the minimum requirements in
subsection (a). For example, this act would not prevent a registration system
from requiring specialized training for all individuals registered with a
particular system or requiring the affiliation of registrants with one or more
public or private disaster relief organizations. Likewise, this act does not
require a particular registration system to accept all types of health care
practitioners or from exercising its own discretion regarding whether to accept
the registration of a particular practitioner.
Under
subsection (a)(1), the requirement to facilitate registration prior to, or
during, the time services are needed is necessary to (1) discourage the
deployment of non-registered “spontaneous volunteers” at the time of a
disaster, (2) encourage practitioners to register in advance of emergencies,
and (3) give practitioners, if the system so provides, the opportunity to
obtain specialized training appropriate to the provision of health or
veterinary services in emergencies. This allows volunteers to integrate
themselves into the existing response efforts and enables the managing agency
to efficiently deploy forces to the appropriate affected areas.
In
Oklahoma, shelters were set up to receive up to 5,000 evacuees from areas
impacted by Hurricane Katrina in 2005. The Oklahoma State Department of
Health, however, did not have the manpower to fully staff these shelters. To
meet surge capacity, members of the state’s MRC units were contacted through
the state-managed database, issued state identification, and deployed in a
single day. State Mobilization of Health Personnel During the 2005 Hurricanes
6 (ASTHO, July 2006). Moreover, the state utilized the MRC website to process
over 3,000 calls from potential volunteers and track volunteers that had been
deployed. This led to their effective utilization. Other examples underscore
the vital roles that such organizations play in emergency response efforts.
The
National Medical Reserve Corps office reported that one important factor that
contributed to its success in response to Hurricane Katrina was that its “teams
of volunteers were identified, credentialed, trained, and prepared in advance
of the emergency.” Medical Reserve Corps Hurricane Response Final Report 2
(March 13, 2006). The American Medical Association (AMA) collaborated with Dr.
David J. Brailer, National Coordination for Health Information Technology, to
expand KatrinaHealth.org, an electronic database of prescription medical
records through which authorized pharmacists and physicians can access records
of medications evacuees were using before the storm hit, including specific
dosages. A report that summarized the implementation challenges in utilizing
KatrinaHealth included variations across states and between institutions which
can “create havoc when disasters, evacuees, and volunteer providers cross
jurisdictional boundaries.” Lessons from KatrinaHealth 19 (June 13,
2006). Few mechanisms existed to coordinate the large number of health
practitioners willing to volunteer. In Dallas, emergency medical providers
ultimately created “a new care network on the fly;” in Houston, they used the
medical school’s existing open-source courseware to post messages and exchange
information. Lessons from KatrinaHealth 20 (June 13, 2006). Despite the
publicized numbers of registered federal volunteers, a doctor who worked in
three different shelters and makeshift clinics in Mississippi for a total of
thirty-four days reported that “these measures did not solve the coordination
issues on the ground.” Lessons from KatrinaHealth 21 (June 13, 2006).
The National Association of County and City
Health Officials (NACCHO) examined the response of five local health
departments that assisted evacuees fleeing the Gulf coast in the wake of
Hurricane Katrina. Although there were ample volunteers to assist in the
recovery efforts, NACCHO observed that their contributions were not
sufficiently planned and coordinated. “[P]rior and just-in-time training,
assessment of knowledge and skills, and systematic assignments all must
improve.” Shelter from the Storm: Local Public Health Faces Katrina 22
(NACCHO, February 2006). NACCHO further noted that “a greater national
calamity, such as a smallpox outbreak, would require human resources beyond
what public health professionals could deliver on their own.” Shelter from
the Storm: Local Public Health Faces Katrina 22 (NACCHO, February
2006).
Spontaneous
volunteers have, on occasion, stymied emergency response efforts and added to
the existing burden facing health practitioners in charge of overseeing a
specific disaster site. HRSA noted that after the attacks on September 11,
2001, thousands of spontaneous volunteers presented themselves at ground zero
in New York City to provide medical assistance. In most cases, however,
authorities were unable to distinguish qualified personnel from those that were
not qualified. See ESAR-VHP Interim Technical and Policy Guidelines,
Standards, and Definitions Section 1.2 (HRSA, June 2005). The unsolicited
presentation of volunteers coupled with the lack of a coordinated mechanism to
integrate their services reduced the effectiveness of the overall response
effort. A former Director of New York’s Emergency Management Office, observed
that “[V]olunteers just show[ed] up …To accommodate them we had to set up
another city. We had to feed them and take care of sanitation and other
things. But we just couldn’t use them.” Id. Prior registration enables
agencies to request, receive, and deploy the necessary volunteer personnel to
wherever their services are required and integrate themselves into the ongoing
response efforts.
This
Act does not, however, mandate prior registration in recognition of the
possibility that large scale disasters may create needs for more practitioners
than those who register in advance. This is evident from response efforts for
Hurricane Andrew in 1993 and the four storms during the hurricane season that
struck Florida in 2004. In neither situation were response efforts completely
sufficient to alleviate public health and individual health concerns. The
large scale mortality and morbidity caused by Hurricane Katrina further
demonstrated that what may be perceived as adequate preparation cannot
compensate for unforeseeable circumstances. Katrina as Prelude: Preparing
for and Responding to Future Katrina-Class Disturbances in the United States,
p.5, Testimony before the U.S. Senate Homeland Security and Governmental
Affairs Committee submitted by Herman B. Leonard and Arnold M. Howitt (March 8,
2006). Therefore, a registration system must be able to allow volunteers to
register during an emergency, as well as prior thereto.
ESAR-VHP is listed in subsection (a)(4)(A) as an
example of a registration system that provides organized information to ensure
an accurate assessment of a volunteer health practitioner’s ability to provide
health services during an emergency. These systems have arisen from a federal
grant program authorized by Section 107 of the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002. Congress directed DHHS to
“establish and maintain a system for the advance registration of health
professionals, for the purpose of verifying the credentials, licenses,
accreditations, and hospital privileges of such professionals when, during
public health emergencies, the professionals volunteer to provide health services.”
In response, HRSA created the ESAR-VHP Program to assist states and U.S.
territories to develop their emergency registration systems through the
provision of grants and guidance. HRSA has distributed resources to nearly
every state and many U.S. territories and developed guidelines and standards
for these systems. Jurisdictions are responsible for designing, developing,
and administering their respective systems consistent with federal guidelines. Thus,
ESAR-VHP is not a federal system, but rather a national system of
jurisdiction-based emergency volunteer registries.
Under subsection (a)(4)(B), a registration
system operated by a Medical Reserve Corps (MRCs) is also sufficient. The MRCs
program was created in 2002 as a community based and specialized component of
Citizen Corps, part of the USA Freedom Corps initiative launched in January,
2002. The program’s purpose is to pre-identify, train, and organize volunteer
medical and public health practitioners to render services in conjunction with
existing local emergency response programs. As of the Fall of 2006, there were
408 MRCs operating across the nation in ten regions. Some states explicitly reference
MRC units via statutes that afford protection to volunteer health practitioners
during an emergency. These states include Connecticut (Conn. Gen. Stat. §
19a-179b), North Carolina (N.C. Gen. Stat. § 1-539.11), Oklahoma (59 Okl. St. §
493.5, and 76 Okl. St. § 32), Utah (Utah Code. Ann. § 26A-1-126), and Virginia
(Va. Code Ann. §§ 2.2-3601, 2.2-3605, 32.1-48.016, and 65.2-101). MRC units
consist of personnel with and without a background in health services. The
“medical” component of the units does not limit membership to medical
professionals. Individuals without medical training are permitted to join and
fill essential supporting roles. The protections of this act, however, only
extend to volunteer health practitioners who are duly registered under Section
4 and adhere to the scope of practice requirements pursuant to Section 8.
Subsection (a)(4)(C) approves registration
systems operated by disaster relief organizations, licensing boards, national
and regional associations of licensing boards or health practitioners, or
governmental entities. As used here, regional is a subset of national and
means a multistate association of licensing boards or health practitioners.
The entities listed typically use registration systems in their ordinary course
of business or activities.
Subsection
(a)(4)(C) also approves registration systems operated by comprehensive health
facilities, which include public or private (for-profit or nonprofit)
facilities that provide comprehensive inpatient or outpatient services on a
regional basis. As used here, regional means that the facility draws
from an extensive patient base that exceeds a single, small local community. A comprehensive health facility is
distinguishable from a health entity by the breadth of its health services as
well as its regional base. As indicated in the act, this includes tertiary
care and teaching hospitals. For purposes of this act, a registration
system operated by such entities is subject to all the requirements of
subsection (a)(1)-(3).
Subsection (a)(4)(D) authorizes the appropriate
state agency or agencies to designate for the purposes of this act a registration
system other than those set forth in subsections (a)(4)(A)-(C), provided these
systems meet the essential requirements in subsection (a)(1)-(3).
Subsection (b) permits a state agency or its
designee, or a host entity, to confirm the identity and status within a
registration system of a volunteer health practitioner. Confirmation is
strongly recommended, but not required, noting that potential exigencies may
prevent confirmation in some instances. Confirmation is limited to identification
and an assessment of good standing of volunteer health practitioners within the
system. This provision is a security safeguard that allows state officials to
ensure that volunteer health practitioners capable of providing health or veterinary
services during an emergency are appropriately registered with a registration
system. Another purpose of this provision is to prevent fraudulent attempts or
acts of unlicensed individuals posing as qualified volunteer health
practitioners during emergencies. The primary purpose, however, is to ensure
the timely approval of registered volunteer health practitioners to provide
health or veterinary services to individuals or populations affected by an
emergency.
Subsection (b) does not, however, authorize
states to review and approve the credentials and qualifications of individual
volunteers or to establish requirements on a state-by-state basis to confirm
the registration of volunteers. These authorizations or requirements may
undermine a fundamental goal of the act to establish uniformity across states
for the recognition of volunteer health practitioners that can function
automatically if necessary (e.g. communications are disrupted) and
access to state officials to secure authorizations is impossible or impractical
during an emergency.
Cases may arise where personnel authorized to
manage the emergency response are unaware of the identities of volunteer health
practitioners and whether they are licensed or in good standing. Subsection
(c) mandates any entity that uses a registration system to provide, upon
request of an authorized person, the names of all volunteer health
practitioners within the system and the most current status of their licensure
and standing. This provision empowers authorized personnel to directly acquire
information pertaining to the identities and qualifications of volunteers
without resorting to additional requests or alternative procedures that may
hinder the response efforts.
Subsection (d) grants host entities the
authority to choose whether or not they will engage the services of a volunteer
health practitioner in response to an emergency declaration. The decision to
use a volunteer is not predicated on the mere affirmation of licensure and good
standing. There may be many reasons why a host entity chooses not to use the
services of a particular practitioner or class of practitioners. This may
include, for example, ample availability of existing full-time or part-time
employees or volunteers that are required to provide a particular service. As
well, a host entity is under no legal obligation to engage the services of a
volunteer aside from any pre-existing agreements that may have been entered
into by the relevant parties. This act does not set any additional
requirements beyond those imposed upon individuals or entities that seek to
avail themselves of the privileges and protections of the act.
SECTION
6. RECOGNITION OF VOLUNTEER HEALTH PRACTITIONERS LICENSED IN OTHER
STATES.
(a)
While an emergency declaration is in effect, a volunteer health practitioner,
registered with a registration system that complies with Section 5 and licensed
and in good standing in the state upon which the practitioner’s registration is
based, may practice in this state to the extent authorized by this [act] as if
the practitioner were licensed in this state.
(b)
A volunteer health practitioner qualified under subsection (a) is not entitled
to the protections of this [act] if the practitioner is licensed in more than
one state and any license of the practitioner is suspended, revoked, or subject
to an agency order limiting or restricting practice privileges, or has been
voluntarily terminated under threat of sanction.
Comment
This Section addresses the need for licensure
recognition of volunteer health practitioners who are licensed outside the
state in which an emergency is declared. Out-of-state volunteers can be a
critical resource to meet surge capacity in the host jurisdiction. In
providing explicit authorization for out-of-state health practitioners to
provide services within a state during an emergency, this act follows existing
precedent established by EMAC and numerous other existing state laws. For
example, the Louisiana Health Emergency Powers Act, R.S. 29:769(e), provides
for the temporary registration of certain health providers licensed in another
jurisdiction of the United States. Louisiana’s Department of Health and
Hospitals may now issue temporary registrations to “licensed, certified, or registered”
health practitioners in another jurisdiction whose licenses, certifications or
registrations are “current and unrestricted and in good standing….” R.S.
29:769(e)(1). According to the Center for Law and the Public’s Health at
Georgetown and Johns Hopkins Universities, at least 13 other jurisdictions
have passed legislation since 2001 to similarly authorize interstate licensure
recognition during declared emergencies. Unfortunately, the lack of uniformity
and consistency among these laws generates confusion and uncertainty which may
delay and impede the efficient and expeditious deployment of volunteer health
practitioners. This act seeks to build upon the precedent established by these
laws to improve their effectiveness and functionality.
Subsection (a) provides that a host
state shall recognize the out-of-state license of a volunteer health
practitioner as being of equivalent status to a license granted by the host
state’s licensure board during an emergency. This is subject to all of the
requirements of the act, including requirements that (1) the volunteer health
practitioner be duly licensed in another state and in good standing; (2) that
an emergency exist (as defined in Section 2(2)); (3) that the practitioner be
registered with a registration system; and (4) that the practitioner comply
with the scope of practice limitations imposed by the act, the laws of the host
state, and any special modifications or restrictions to the normal scope of
practice imposed by the host state or host entity pursuant to Section 8.
Interstate licensure recognition is essential to
facilitate volunteer deployment during emergencies. The American Red Cross
(ARC) reported that over 219,500 Red Cross disaster relief workers from all
fifty states, Puerto Rico, and the Virgin Islands responded to Hurricane
Katrina. Facts at a Glance: American Red Cross Response to Hurricane Katrina
and Rita (January 19, 2006). The MRC reported that over 1,500 MRC members
were willing to deploy outside their local jurisdiction on optional missions to
the disaster-affected areas with their states agencies; almost 200 volunteers
from 25 MRC units were activated by HHS, and over 400 volunteers from 80 local
MRC units were deployed to support the ARC disaster operations in Gulf Coast
areas. Medical Reserve Corps
Hurricane Response Final Report 1
(March 13, 2006).
The
American Public Health Association (APHA) reported that health volunteers from
New York, South Carolina, and Florida were deployed to Mississippi after
Hurricane Katrina struck. According to Roger Riley, the past president of the
Mississippi Public Health Association, “the Florida Department of Public Health
was a particular godsend” as it provided employees, mobile clinics, and other
vital support. The Nation’s Health (APHA October 2005). APHA also helped
link public health workers with organizations seeking help by publicizing
volunteer opportunities on its official website.
Allowing
for interstate licensure recognition for health practitioners is consistent
with efforts to suspend licensure requirements for non-health related
professionals that proffer their services to affected individuals. The
American Bar Association (ABA) Task Force, for example, advocated for the
suspension of unlicensed practice rules by various states impacted by Hurricane
Katrina so that lawyers from other jurisdictions might volunteer to assist in
the affected areas. Twenty states acted upon its request. In the Wake of
the Storm: The ABA Responds to Hurricane Katrina 10 (2006). Since
this act contains multiple provisions unique to the provision of health
services, however, and may not reflect specific problems associated with the
use of other types of volunteer professionals during emergencies, its
provisions should not be expanded to apply to other classes of professionals
without careful consideration and evaluation.
Subsection (b) restricts this act’s
protections from administrative sanction to volunteer health practitioners
whose licenses are not subject to a suspension, revocation, or disciplinary
restriction, or who have not voluntarily terminated their license under threat
of sanction, in any state. This is consistent with the requirements underlying
the provision of services in Section 8 such that practitioners who meet any of
the aforementioned criteria have had their qualifications questioned as to
their ability to adequately provide health services. The provisions of
subsection (b) apply only to suspensions, revocations, restrictions and
voluntary terminations that are disciplinary in nature and arise due to actual
or suspected provider misconduct. A decision by a practitioner to not renew a
license in a particular jurisdiction or to accept a requirement that a license
will not be active in a jurisdiction until certain continuing education or
insurance requirements are satisfied because a practitioner is principally
practicing in another jurisdiction, unrelated to findings or allegations of
professional misconduct, will not disqualify an individual from practicing as a
volunteer health practitioner under this act.
SECTION
7. NO EFFECT ON CREDENTIALING AND PRIVILEGING.
(a)
In this section:
(1)
“Credentialing” means obtaining, verifying, and assessing the qualifications of
a health practitioner to provide treatment, care, or services in or for a
health facility.
(2)
“Privileging” means the authorizing by an appropriate authority, such as a
governing body, of a health practitioner to provide specific treatment, care,
or services at a health facility subject to limits based on factors that
include license, education, training, experience, competence, health status,
and specialized skill.
(b)
This [act] does not affect credentialing or privileging standards of a health
facility and does not preclude a health facility from waiving or modifying
those standards while an emergency declaration is in effect.
Comment
This Section acknowledges the distinctions
between credentialing and privileging, and specifically notes that the act is
not intended to interfere with the enforcement or waiver of these requirements
during an emergency. The credentialing process, as defined under subsection
(a)(1), assesses the basic skills or competencies for health practitioners and
utilizes criteria including their licensure, education, training, experience,
and other qualifications that may aid in this determination.
This is distinct from the privileging
process, defined in subsection (a)(2), in that credentialing does not grant any
authority to engage in the provision of health services. Subsection (a) thus
allows states to retain the flexibility to proffer guidelines and
recommendations for intrastate entities that choose to integrate out-of-state
volunteers. It also distinguishes the assessment of such volunteers under
subsection (a)(1) from the actual grant of authority under subsection (a)(2) to
provide health services.
Privileging decisions (under
subsection (a)(2)) entail the grant of authority to individuals to provide
specific types of health services, in addition to the general adherence to
scope of practice guidelines established by state licensure boards.
Privileging determinations are unique to the entity granting the privileges to
the practitioner and do not necessarily extend to services provided under
another entity absent its express authority.
Credentialing and privileging
standards can be an essential prerequisite to the actual delivery of health
services in specific settings. The Joint Commission on Accreditation of
Healthcare Organizations (JCAHO), for example, requires hospitals to be
prepared to engage in rapid credentialing procedures as needed to respond to
emergency events. In 2003, the Commission recommended the creation of a
credentialing database to support a national emergency volunteer system for
health practitioners. Health Care at the Crossroads: Strategies for
Creating and Sustaining Community-wide Emergency Preparedness Systems 24,
36 (JCAHO White Paper, March 2003). This would provide rapid access to
information on volunteer clinicians during the planning and implementation of
an emergency response. Id. at 36. To date this database has not been
established.
Waivers or modifications of
credentialing or privileging standards during emergencies have no effect on
registration requirements under Section 5 or adherence to scope of practice
considerations under Section 8. The authority granted by Section 8(d) to host
entities to restrict services provided through the entity by volunteer health
practitioners may, however, be used to establish credentialing or privileging
standards applicable to volunteer health practitioners utilized during an
emergency.
Any authority to provide health or
veterinary services granted pursuant to a waiver or modification only apply for
the duration of an emergency (as defined in Section 2(2)) and terminate when
the emergency declaration is no longer in effect. At this point, the licensure
recognition for an out-of-state volunteer health practitioner is no longer
valid, and the practitioner must revert to strict compliance with the normal
licensing laws of the host state.
SECTION 8. PROVISION OF VOLUNTEER HEALTH
OR VETERINARY SERVICES; ADMINISTRATIVE SANCTIONS.
(a) Subject to subsections (b) and (c), a volunteer
health practitioner shall adhere to the scope of practice for a similarly
licensed practitioner established by the licensing provisions, practice acts,
or other laws of this state.
(b)
Except as otherwise provided in subsection (c), this [act] does not authorize a
volunteer health practitioner to provide services that are outside the
practitioner’s scope of practice, even if a similarly licensed practitioner in
this state would be permitted to provide the services.
(c)
[Name of appropriate governmental agency or agencies] may modify or restrict
the health or veterinary services that volunteer health practitioners may
provide pursuant to this [act]. An order under this subsection may take effect
immediately, without prior notice or comment, and is not a rule within the
meaning of [state administrative procedures act].
(d)
A host entity may restrict the health or veterinary services that a volunteer
health practitioner may provide pursuant to this [act].
(e)
A volunteer health practitioner does not engage in unauthorized practice unless
the practitioner has reason to know of any limitation, modification, or
restriction under this section or that a similarly licensed practitioner in
this state would not be permitted to provide the services. A volunteer health
practitioner has reason to know of a limitation, modification, or restriction
or that a similarly licensed practitioner in this state would not be permitted
to provide a service if:
(1)
the practitioner knows the limitation, modification, or restriction exists or
that a similarly licensed practitioner in this state would not be permitted to
provide the service; or
(2)
from all the facts and circumstances known to the practitioner at the relevant
time, a reasonable person would conclude that the limitation, modification, or
restriction exists or that a similarly licensed practitioner in this state
would not be permitted to provide the service.
(f)
In addition to the authority granted by law of this state other than this [act]
to regulate the conduct of health practitioners, a licensing board or other
disciplinary authority in this state:
(1)
may impose administrative sanctions upon a health practitioner licensed in this
state for conduct outside of this state in response to an out-of-state
emergency;
(2)
may impose administrative sanctions upon a practitioner not licensed in this
state for conduct in this state in response to an in-state emergency; and
(3)
shall report any administrative sanctions imposed upon a practitioner licensed
in another state to the appropriate licensing board or other disciplinary
authority in any other state in which the practitioner is known to be licensed.
(g)
In determining whether to impose administrative sanctions under subsection (f),
a licensing board or other disciplinary authority shall consider the
circumstances in which the conduct took place, including any exigent
circumstances, and the practitioner’s scope of practice, education, training,
experience, and specialized skill.
Legislative Note: The governmental agency
or agencies referenced in subsection (c) may, as appropriate, be a state
licensing board or boards rather than an agency or agencies that deal[s] with
emergency response efforts.
Comment
Subsection (a) provides that volunteer health
practitioners may only render health services that would be within the scope of
practice of a similarly situated practitioner in the host state. Outside this
act, the term “scope of practice” may have different meanings depending on how
it is used. In the health professions (e.g., medicine, nursing, etc.), the
“scope of practice” typically refers to the standards that separate one health
profession from another governed by state licensure laws unique to each
profession. Idaho, for example, precludes a health practitioner providing
charitable medical care from acting outside the scope of practice “authorized by
the provider’s licensure, certification or registration.” Idaho Code § 39-7703
(2005). Therefore, nurses are restricted from performing physician services because
such conduct would be outside the scope of practice for nurses.
Another interpretation of “scope of practice”
refers to the general services being provided for a specific entity that
a volunteer health practitioner is serving. Alabama, for example, requires all
volunteers to act “within the scope of such volunteer’s official functions and duties
for a nonprofit organization, … hospital, or a governmental entity….” Ala.
Code §6-5-336(d)(1). Consequently, the scope of practice (i.e. functions and
duties) would not stem exclusively from the explicit licensure requirements
under state law. Rather, the types of services would stem from the privileging
requirements set forth by the organization in which the volunteer is serving.
This act, however, distinguishes between credentialing and privileging
requirements and scope of practice limitations.
Under this act, “scope of practice” is defined
in Section 2(12) to mean the extent of authorization to provide health or
veterinary services established by the licensure boards of the state in which a
practitioner is licensed and primarily engages in practice. This limits the
types of services volunteer health practitioners can perform to those services
unique to their profession. Nonetheless, the scope of practice may differ
among individuals depending on the state(s) where they are principally licensed.
The services a practitioner provides may be modified or restricted by a state
licensing board or other agency pursuant to subsection (c) or restricted by a
host entity pursuant to subsection (d).
The prescriptive authority of nurse
practitioners, for example, varies widely across states. Currently, fourteen
states allow nurse practitioners to prescribe medications, including controlled
substances, independent of physician involvement. Eighteenth Annual
Legislative Update, Nurse Practitioner 31(1):12-38 (January 2006). Arkansas,
for example, does not require physician collaboration or supervision for an
advanced practice nurse. The Arkansas State Board of Nursing may grant a
certificate of prescriptive authority to an advanced practice nurse upon (1)
submission of proof demonstrating completion of a board-approved pharmacology
course that includes preceptorial experience in the prescription of drugs, and
(2) execution of a collaborative practice agreement with a physician who is
licensed in Arkansas. A.C.A. § 17-87-310 (2006). Thirty-three states,
however, require nurse practitioners to have some degree of physician
involvement prior to prescribing medications. Illinois, for example, provides
that advanced practice nurses may prescribe medications pursuant to a
collaborative agreement with a physician. 225 ILCS 65/15-20(a). Some states
have also recognized the potential overlap of services between professions,
concluding that the governing law is that of the host state. Kansas’ Attorney
General, for example, issued an opinion concerning whether chiropractic manual
manipulation was a procedure within the scope of practice of medicine and
surgery. Although chiropractic manipulation may involve methods of practice
“authorized to one or the other profession or both,” it is not within the scope
of practice of medicine and surgery as defined by Kansas state law even though
it may be within the scope of practice under standards that such practitioners
are generally held to as members of the chiropractic profession. Att’y Gen.
Opinion No. 96-12, 1996 Kan. AG LEXIS 12.
As indicated above, (a) requires that a
volunteer health practitioner (whether in-state or out-of-state) must adhere to
the applicable scope of practice for similarly situated practitioners in the
host state during the emergency. For practitioners licensed in the host state
before the emergency, they must, of course, adhere to the state’s scope of
practice for their profession. For out-of-state practitioners who are not
licensed in the host state before the emergency, the requirement to adhere to
the host state’s scope of practice is consistent with the recognition pursuant
to Section 6(a) that out-of-state practitioners are to be viewed as licensed in
the state for the duration of the emergency. Through subsection (a), the scope
of practice requirements for similarly situated practitioners is coupled with
their recognition of a temporary license as provided in Section 6(a). This
helps ensure uniformity in the scope of practice among various practitioners
from other jurisdictions.
Subsection (b) clarifies that this section (nor
any other provisions of the act) does not authorize a volunteer health
practitioner to provide services that are outside the practitioner’s own scope
of practice even if a similarly situated practitioner in this state would be permitted
to provide the services. This restriction, which principally applies to
practitioners whose licensure during non-emergencies is out-of-state, helps
ensure that they do not provide services during emergencies that they would not
be entitled to provide in their usual course of business or activities. This
is significant where a volunteer health practitioner is licensed in more than
one state.
For example, consider a nurse who may
principally practice nursing in Illinois, although also licensed in Arkansas
and Kentucky. If Louisiana declares a state of emergency, the nurse may be
deployed from Illinois to Louisiana to provide services. With the recognition
of licensure pursuant to Section 6(a), the practitioner is permitted to
practice in a state as if licensed in the state for the duration of the
emergency. In Arkansas, the nurse may independently prescribe drugs without
the supervision of a physician whereas in Illinois or Kentucky this may only be
done with some degree of physician involvement or delegation of prescriptive
authority (see scope of practice discussion above). The nurse’s scope of
practice will be limited to the services authorized in Illinois, not those
authorized in Arkansas or Kentucky, since Illinois is the place of principal
practice. It would not matter whether a similarly situated practitioner would
be allowed to independently prescribe medications in Louisiana – the nurse
could not do so under subsection (b) of this act. Simply stated, the volunteer
health practitioner is permitted to do whatever a similarly situated physician
in the host state may do unless such action is outside the practitioner’s scope
of practice in her principal state of practice or is impermissible because of a
restriction by a state licensure board or other agency under subsection (c) or
a restriction imposed by a host entity under subsection (d).
The impetus for these restrictions is to make
sure that out-of-state practitioners do not provide services for which they are
not competent, or that are not legally permissible in the host state, based on
their licensure status in their principal state of practice. In the example
provided above, if Arkansas offered another variation on the practitioner’s
scope of practice that was more limited than the scope of practice in
Louisiana, this need not be considered by the practitioner in the performance
of services since the practitioner does not principally engage in practice in
Arkansas. To require practitioners to adhere to the scope of practice in every
jurisdiction in which they are licensed during an emergency would be overly
confusing and may stymie the provision of essential health services to
individuals and populations.
Subsection (c) authorizes the state licensing
board or other appropriate state agency (or agencies) to modify or restrict the
type of services volunteer health practitioners may provide during an
emergency. This provision must be considered in pari materia with the
licensure laws and regulations of the host state. The rationale is to empower
state agencies to adapt their emergency response plans to unforeseeable
circumstances stemming from an emergency to meet patient needs or protect the
public’s health. In some instances, this may require empowering volunteer
health practitioners to provide services that are not typically allowed under
existing state licensure laws. In New Jersey, for example, the Commissioner of
Health and Senior Services may waive any rules and regulations concerning
professional practice in the state during an emergency. R.S. 26:13-18b(2). In
other circumstances, a state may chose to limit volunteer health practitioners
to only provide certain designated types of services not otherwise available
because of the impact of a disaster. In either case, during an emergency there
may be legitimate reasons for a state to modify or restrict the health services
that a volunteer health practitioner may provide consistent with overriding
public health objectives or patient needs.
Subsection (d) authorizes a host entity to
restrict the services that volunteer health practitioners may provide. Host
entities need to make decisions in real time to allow for an efficient and
effective emergency response. This provision does not authorize a host entity
to alter the scope of practice of a particular profession as defined by state
licensure boards or other appropriate agencies. Therefore, a hospital acting
as a host entity cannot authorize a nurse to provide services that only a
physician may perform. However, the hospital may limit the types of services
that a volunteer health practitioner is authorized to perform. A hospital, for
example, may delegate different responsibilities among volunteer health practitioners
that limit what the practitioners can do in the treatment of patients or
provision of public health services during a non-emergency. This
population-based approach to the delivery of health services is consistent with
the underlying public health objective of this act to assure the health and
well-being of affected members of the population.
Subsection (e) provides that administrative
sanctions for unauthorized practice may not be imposed against a volunteer
health practitioner unless the practitioner has reason to know of any
limitation, modification, or restriction on the services that a health
practitioner may provide (pursuant to subsections (c) and (d)) or that a
similarly situated practitioner in this state would not be permitted to provide
the services (pursuant to subsection (a)). This provision recognizes that
volunteer health practitioners that are already registered under Section 5 and
authorized to provide health services must exercise their best judgment during
exigent circumstances. It would be inapposite with the purpose of this Act --
to facilitate voluntarism -- to require volunteers to second-guess their every
judgment because of concerns over administrative sanctions. So long as they
are providing services that are within their normal scope of practice
(subsection (b)) acting without actual knowledge that they should not do so or
could not reasonably conclude from the facts known to them that they should not
do so, they should not be subject to administrative sanctions during or
following the emergency. However, if a volunteer health practitioner is
expressly informed that certain services should not be provided or the
practitioner should have so concluded, there is no immunity from administrative
sanctions.
Subsection (f) authorizes a state licensing
board or other disciplinary authority to impose administrative sanctions on any
volunteer health practitioner whose conduct is inconsistent with licensure or
other laws and for which subsection (e) does not afford protection. Subsection
(f)(1) makes clear that a state licensing board or other appropriate
disciplinary authority may sanction a health practitioner licensed in that
state for conduct that occurs outside the state in response to an emergency
that also occurs outside the state. Subsection (f)(2) authorizes the licensing
board or disciplinary authority in the state in which the emergency occurs to
sanction practitioners licensed in other states for conduct that occurs in the
state in which the emergency occurs. This latter authority is a natural
consequence of the practitioners’ “temporary licensure” status. Subsection
(f)(3) requires any state that imposes sanctions upon a volunteer health
practitioner to inform the licensing board or other disciplinary authority in all
states where the practitioner is known to be licensed. This may help licensing
boards or other disciplinary authorities in all states to record and note
outstanding sanctions against any practitioner licensed in their state.
Subsection (g) requires the state licensing
board or other disciplinary authority to examine the conduct of a volunteer
health practitioner potentially subject to administrative sanction against a
backdrop of mitigating factors, including the practitioner’s scope of practice,
education, training, experience, and specialized skill. This requirement
recognizes that during exigent circumstances, numerous factors may influence a
volunteer health practitioner’s actions or omissions.
SECTION
9. RELATION TO OTHER LAWS.
(a) This [act] does not limit rights, privileges, or
immunities provided to volunteer health practitioners by laws other than this
[act]. Except as otherwise provided in subsection (b), this [act] does not
affect requirements for the use of health practitioners pursuant to the
Emergency Management Assistance Compact.
(b)
[Name of appropriate governmental agency or agencies], pursuant to the
Emergency Management Assistance Compact, may incorporate into the emergency
forces of this state volunteer health practitioners who are not officers or
employees of this state, a political subdivision of this state, or a
municipality or other local government within this state.
Legislative Note: References to other
emergency assistance compacts to which the state is a party should be added.
Comment
Subsection (a) clarifies that this act does not
supplant other protections from liability or benefits afforded to volunteer
health practitioners under other laws. For example, the act does not limit or
preclude the benefits afforded members of disaster relief organizations under
state good Samaritan laws or under the federal Volunteer Protection Act, 42
U.S.C.S. §14501 et seq.
Subsection (b) creates a statutory path to allow
private sector volunteers to be incorporated into state forces for the limited
purpose of facilitating their deployment and use during an emergency through
EMAC or other state mutual aid compacts or agreements. During Hurricane
Katrina, many states sought to deploy volunteers through EMAC to provide them
greater protections and fulfill state responsibilities pursuant to this
compact. In many states, this required the hasty execution of agreements or
issuance of executive orders authorizing the volunteers to become temporary
state agents. To avoid future delays, this provision authorizes the
appropriate state agency to incorporate any private sector volunteers into
state forces as needed to deploy them via EMAC or other interstate compacts or
agreements.
SECTION
10. REGULATORY AUTHORITY.
[Name of appropriate governmental
agency or agencies] may promulgate rules to implement this [act]. In doing so,
[name of appropriate governmental agency or agencies] shall consult with and
consider the recommendations of the entity established to coordinate the
implementation of the Emergency Management Assistance Compact and shall also
consult with and consider rules promulgated by similarly empowered agencies in
other states to promote uniformity of application of this [act] and make the
emergency response systems in the various states reasonably compatible.
Legislative Note: References to other
emergency assistance compacts to which the state is a party should be added.
Comment
The purpose of this section is to authorize
states to adopt regulations reasonably necessary to implement the provisions of
this act. For example, a state may adopt rules governing how host entities may
coordinate their activities with state emergency management agencies when using
volunteer health practitioners as required by Section 5(b). Such regulations
could require host entities to supply emergency management agencies a list of
number and type of volunteer health practitioners recruited by a host entity
and the manner in which these personnel are being utilized. This information could
then be used by state officials to identify and alleviate gaps in their
emergency service delivery network. A state may not, however, impose
requirements inconsistent with the provisions of this act, such as regulations
requiring only the use of approved registration systems or requiring the
individual review and approval of the qualifications of volunteer health
practitioners.
States may also utilize the regulatory authority
provided by this section to establish standards to promote the interoperability
of registration systems. The minimum data elements of the ESAR-VHP system, for
example, include a practitioner’s name, contact information, degree(s),
hospital(s) in which the individual enjoys privileges, specialty(ies), state
license number, state license board check of disciplinary actions taken against
the licensee, National Practitioner Databank check of liability actions, date
of last reappointment, and status of the license (e.g., active, inactive
or retired). Comparable requirements could be imposed upon any registration
system seeking to have its registrants used in a state. In adopting
regulations to implement this act, including standards for the interoperability
of registration systems, however, state agencies must to consult with the intrastate
agencies or entities responsible for coordinating and managing emergency
responses, along with interstate partners pursuant to existing mutual aid
compacts (e.g., the Emergency Management Assistance Compact (EMAC), the
Interstate Civil Defense and Disaster Compact (ICCDC), the Nurse Licensure
Compact (NLC), and the Southern Regional Emergency Management Assistance
Compact) to ensure consistency among regulations and the interoperability of
procedures during an emergency. Coordination and consultation of this type are
essential to ensure that state regulatory requirements do not inadvertently
recreate the very problems which this act seeks to remedy, namely a lack of
consistency and uniformity among state systems that may impair the effective
and rapid deployment of volunteer health practitioners.
[SECTION 11. CIVIL LIABILITY FOR
VOLUNTEER HEALTH PRACTITIONERS; VICARIOUS LIABILITY. Reserved.]
Legislative Note: Final action regarding
Section 11 of the Act has been deferred until the 2007 Annual Meeting of the
National Conference of Commissioners on Uniform State Laws. At that time, the
Drafting Committee will present to the Conference for consideration its final
recommendations relating to the limitation of civil liability for damages for
volunteer health practitioners and organizations that use and maintain
registration systems for volunteer health practitioners. Because many States
have existing laws pertaining to liability limitations and a uniform approach
to liability limitations may play a critical role in promoting the use of
volunteer health practitioners, States considering adoption of this Act prior
to final action by the National Conference regarding Section 11 should
carefully review their existing laws, the laws of other states, provisions of
the Emergency Management Assistance Compact, and the work of the Drafting
Committee, which is available at http://www.law.upenn.edu/bll/ulc/ulc.htm.
[SECTION 12. WORKERS’ COMPENSATION
COVERAGE. Reserved.]
Legislative Note: Final action regarding
Section 12 of the Act has been deferred until the 2007 Annual Meeting of the
National Conference of Commissioners on Uniform State Laws. At that time, the
Drafting Committee will present to the Conference for consideration its final
recommendations regarding the provision of workers’ compensation coverage for
volunteer health practitioners without other forms of workers’ compensation or
disability insurance coverage. Because the establishment of a reasonably
uniform system to compensate volunteer practitioners for injuries sustained
while responding to emergencies is critical to an effective system of
legislation to promote the use of volunteer health practitioners, States
considering adoption of this Act prior to final action by the National
Conference regarding Section 12 should carefully review the laws of other
states providing workers’ compensation coverage to volunteers responding to
emergencies, provisions of the Emergency Management Assistance Compact, and the
work of the Drafting Committee, which is available at http://www.law.upenn.edu/bll/ulc/ulc.htm.
SECTION
13. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In
applying and construing this uniform act, consideration must be given to the
need to promote uniformity of the law with respect to its subject matter among
states that enact it.
Comment
Uniformity of interstate recognition of licensure
for volunteer health practitioners, and the grant of particular privileges and
protections for those volunteers who provide health or veterinary services
during an emergency to individuals or populations, are two principle objectives
of this act.
The goal of uniformity among the states may be
enhanced by use of interoperable registration systems pursuant to Section 4.
Examples may include ESAR-VHP systems that consist of thorough substantive and
technical criteria that meet essential system requirements and provide
additional security safeguards with respect to accessibility by authorized
personnel, privacy concerns, and interoperability with other systems.
SECTION
14. REPEALS. The following acts and parts of acts are repealed:
(1)
.................
(2)
.................
SECTION
15. EFFECTIVE DATE. This [act] takes effect . . . .