Uniform Emergency Volunteer Healthcare Services Act
Agenda of Issues for Discussion
June 9-10, 2006 Drafting Committee Meeting
Section
1. Short Title.
Is the act
given an appropriate name? Based upon discussions at April’s Drafting
Committee Meeting, the name of the Act was changed from the “Uniform Interstate
Emergency Healthcare Services Act” to the “Uniform Emergency Volunteer
Healthcare Services Act” in order to clarify that application of the Act to
services voluntarily rendered and to apply the immunities provided by § 7 to
volunteers deployed on both an intrastate and interstate basis. Does the revised title appropriately
communicate the subject matter of the Act?
Section
2: Definitions
What types of
“healthcare entities” should be authorized to establish registration systems? A
new term “comprehensive healthcare facility” was added to the Act to limit the
types of healthcare facilities authorized to establish registration systems by
§ 4(a)(2) to only entities offering comprehensive inpatient and outpatient
services on a regional basis, such as tertiary and teaching hospitals. A restricted definition was added to the Act
because of the concern that not all types of “healthcare entities” were
suitable to establish and maintain registration systems, such as separately
licensed ambulatory surgery facilities, individual pharmacies, clinical labs
and radiation centers. Is a limitation
on the type of healthcare facilities authorized to establish registration systems
appropriate and, if so, does the proposed term provide a suitable limitation?
What types of
organizations should enjoy the immunities provided to “coordinating entities”? The
definitions of the terms “host entity” and “source entity” have been revised to
more clearly delineate their meaning, but the definition of the term
“coordinating entity” has not been revised pending more guidance from Committee
members and observers regarding the types of entities that should qualify for
the immunities provided to coordinating entities by § 7(c). What types of “coordinating entities” should
qualify the immunities provided by § 7(c)?
Should the definition of the term “coordinating entity” be revised to
more clearly indicate that types of entities that fall within the scope of the
definition? Are the revised definitions
of the terms “host entity” and “source entity” satisfactory?
Is the term
“disaster relief organization” properly defined? A
definition of the term “disaster relief organization” was added to the text to
clarify the types of such organizations authorized to (A) establish
registration systems by § 4(a)(2); (B) limit, restrict or modify the types of
services may be provided pursuant to § 6(c); and (C) determine the types of
such organizations provided with immunities pursuant to § 7(c); and which may
compensate volunteers without the loss of “host entity” status as provided by §
9(b)(1). As explained in the Research
Memo circulated by the Committee’s Reporter, it was concluded that such
organizations could not be reasonably defined solely based upon their
membership in National VOAD. Does the
recommended definition appropriately identify entities acting as
non-governmental disaster relief organizations?
Should the Act
apply to veterinary services? Following April’s Drafting Committee Meeting,
comments were received from several observers unable to attend the meeting
strongly recommending inclusion within the act’s coverage veterinary
services. Should the term “healthcare
services” be expanded to apply to the “health or death of an individual or animal” in order to expand the types
of individuals classified as “volunteer healthcare practitioners” by the Act?
Should the Act
apply to foreign healthcare practitioners? Advice has been provided to
the Drafting Committee that significant problems arose during the response to
Hurricane Katrina regarding whether foreign healthcare practitioners should be
afforded practice privileges during emergencies. While the committee was originally concerned
that dealing with the recognition of foreign practitioners may pose
constitutional issues and that the matter should be left to federal authorities
to address, advice was received that DHHS regards the issue as appropriate for
resolution by the states. Consistent with
this advice, should the definition of the term “state” be expanded in the
manner provided by the May 31st Draft to allow states to grant
recognition to foreign healthcare practitioners?
Section
3. Authorization for Volunteer
Healthcare Practitioners to Provide Services
Are host states
given an appropriate level of discretion to limit, regulate or restrict the use
of volunteer healthcare practitioners? Based on discussions at the
April Drafting Committee Meeting, § 3(c) was drafted in a manner to authorize,
but not require, host states to issue orders limiting, restricting or
regulating the duration of practice by volunteer healthcare practitioners, the
geographical areas in which services may be provided, the class or
practitioners authorized to provide services and “other matters necessary to coordinate
effectively the provision of healthcare services.” Is the standby grant of such authority an
appropriate measure to limit the inappropriate application of the Act without
creating additional non-uniform restrictions and limitations upon the deployment
of volunteer healthcare practitioners that could impede attainment of the
objectives of the Act?
Section
4. Volunteer Healthcare
Practitioner Registration Systems
Are host states
given appropriate powers to confirm the qualifications of out-of-state
healthcare practitioners without unduly restricting the deployment of
volunteers? Based on discussions at the April Drafting
Committee Meeting, § 4(c) was revised to authorize states to “confirm whether
volunteer healthcare practitioners … are entitled to protections of this act”
by obtaining confirmation from a registration system regarding the identities
of individuals registered and in good standing with a registration system. In addition, § 4(d) requires states to
establish procedures in advance “for the efficient confirmation of volunteer
healthcare practitioners.” Do these
provisions appropriate balance the need for states to confirm the proper
registration of volunteer practitioners while avoiding the creation of
non-uniform barriers to the use of volunteer healthcare practitioners? Is the additional mandate to establish
procedures in advance for “efficient confirmation” necessary and desirable?
Section
5. Interstate Licensure Recognition
for Volunteer Healthcare Practitioners
Is the
relationship between the Act and licensure requirements properly described?
Section 5(a) has been revised based on comments received at the April
Drafting Committee Meeting to clarify that “if a volunteer healthcare
practitioner authorized to provide healthcare services in this state by this
act is licensed and in good standing in another state, the state shall
recognize the out-of-state license as if the license had been issued by this
state during the period of an emergency declaration or other invocation of the
act.” As phrased, does this the language
achieve the objectives of the Act? Is it
clear that proof of the possession of a license in good standing issued by
another state is merely a prerequisite for a defense against claims of
unauthorized practice versus authorization for a state to establish additional
“confirmation” requirements beyond those established by § 4(c)? Is it clear that during the duration of an
emergency the privileges afforded to out-of-state practitioners may be limited
as otherwise provided by the Act and that the protections and privileges
provided by the Act are contingent upon conforming to the other requirements of
the Act as otherwise provided by § 6?
Section
6. Provision of Volunteer
Healthcare Services
Should the
scope of practice be defined based on the laws of the host state?
During the April Drafting Committee Meeting, three options to describe
the authorized scope of practice were discussed, namely reliance upon the laws
of host states, source states, or a combination of both standards. After further research, the Committee’s
Reporter recommends all practitioners be subject to laws of the host state
defining the permitted scope of practice so as to treat all volunteer
healthcare practitioners in a given practice setting uniformly. Is this the correct policy choice?
Does the Act
properly provide for modifications on the scope of practice and services
provided by volunteers? As revised, § 6(b) authorizes the host state
to “modify, restrict or enlarge the normal scope of practice or standard of
care” applicable to volunteer practitioners and § 6(c) authorizes host
entities, such as disaster relief organizations, to limit, restrict or modify
the “types of services” volunteers may provide in a manner “consistent with the
scope of practice or standard of care” otherwise applicable. Do these provisions properly allow the
regulation of the scope of practice, standard of care and types of services
that may be provided under the Act?
Are
practitioners appropriately protected from liability for good faith mistakes
regarding the authorized scope of practice, standard of care or services
provided? Volunteers are provided protections from
administrative sanctions for unauthorized practice by § 6(d), (e) and (f) based
upon actions taken in “good faith,” in a manner “consistent with their normal
scope of practice,” based upon actual knowledge regarding modifications to the
scope of practice while taking into consideration “exigent circumstances.” Are these standards appropriate?
Section
7. Civil Immunity
Should civil
immunities be provided in the manner provided by the Act? As
drafted, § 7(a) and (b) provides volunteer healthcare practitioners authorized
to practice in the manner provided by the act to immunity from civil liability
for damages arising out of healthcare services provided pursuant to the act and
“nonhealthcare-related acts performed within the scope of their activities as
volunteer healthcare practitioners.”
Immunity is extended by § 7(c) to source, coordinating and host entities
for damages for which volunteer healthcare practitioners are not liable. These immunities do not apply, however, as
provided by § 9(d) to acts that are willful, wanton, grossly negligent,
reckless, criminal or to liability arising due to a breach of contract or
pursuant to an action initiated by a source or host entity? Should immunities be provided and limited in
the manner provided by § 7?
Section
8. Workers’ Compensation
Should
workers’ compensation provisions be included in the Act?
Currently, § 8 is bracketed to indicate that its inclusion in the act is
not necessary to achieve the desired objectives of uniformity of law, but is
nonetheless recommended for consideration by the states? Should § 8 be included in the Act and, if so,
should it be treated as an optional provision?
Which
volunteer healthcare practitioners should be treated as state employees for
purposes of workers’ compensation protection? In states which elect to
include § 8 in the Act, two options are provided regarding the treatment of
volunteer healthcare practitioners as employees of their host state. Option A treats only residents of the state
acting pursuant to the act in any jurisdiction who do not otherwise have
workers’ compensation coverage available as state employees for workers’
compensation purposes, while Option B treats all volunteer healthcare
practitioners working in the state who do not have coverage available from
another source as state employees.
Should states be provided two options from which to choose or should he
Committee recommend only a single option and, if so, which alternative should
be included in the Act?
Section
9. Effect of Compensation on
Volunteer Status
When should
a preexisting employment relationship with a host entity negate volunteer
status? Generally, § 9 provides that the acceptance
of compensation does not preclude a practitioner from being considered a
volunteer, unless the compensation is received pursuant to a preexisting
relationship with the host entity.
Pursuant to decisions made at the April Drafting Committee Meeting,
exceptions are provided to this limitation in § 9(b) for (A) nonresident
employees of disaster relief organizations; and (B) for nonresident employees
of healthcare facilities or organizations affiliated with the practitioners
ordinary place of employment provided that the practitioners’ compensation does
not exceed usual and customary levels.
Are both exceptions necessary and appropriate?
Section
10. Relation to Other Laws
Should the Act
supplement but not supplant other existing laws affecting volunteer healthcare
practitioners providing services during emergencies? As
drafted, § 10 provides that the Act is not intended to limit additional
protections from liability or other benefits for volunteer healthcare practitioners
provided by other laws or to establish requirements for the use of any
volunteer healthcare practitioners deployed pursuant to EMAC. Does this provision properly and adequately
address the relationship between the Act and other existing state laws?
Section
11. Regulatory Authority
Should states
be provided regulatory authority to interpret and implement the Act?
Pursuant to § 10, states are given the power to promulgate regulations
to implement the Act, but in adopting any such rules are required to consult
with and consider the recommendations of EMAC administrators and “other
similarly empowered agencies in other states to promote uniformity of
application of this act and thereby make the emergency response systems in the
various states reasonably compatible.”
Is such supplemental regulatory authority necessary or should the act be
self-implementing? To what extent may a
broad grant of regulatory authority to implement the Act potentially result in
the proliferation of a variety of non-uniform requirements for the deployment
and use of volunteer healthcare practitioners that may frustrate achievement of
the goals and objectives of the Act?
Further
Consideration of the Act
Should the Act
be presented for a final reading at the 2006 Annual Meeting of the Uniform Law
Commission? Extensive discussions and consultations
regarding the Act began in December 2005 and have included a Study Committee
Meeting held at the American Red Cross Headquarters on February 14, 2006; an
initial Drafting Committee Meeting held in Washington, D.C., on April 28-29,
2006; and several extended telephone conferences with groups and organizations
affected by the Act. Based on the
results of the June 9-10, 2006 Drafting Committee Meeting, a recommendation
should be made to the Uniform Law Commission regarding whether the Act (with
any revisions and modifications as discussed at the June Drafting Committee
Meeting) should be presented at its July 2006 Annual Meeting as a “discussion
draft” or whether the Act should be presented at the Annual Meeting for final
approval by a vote of the states. In
presenting this recommendation, the need to proceed expeditiously to promote
changes to state laws necessary to facilitate effective emergency responses
should be balanced against the need to ensure that advice and recommendations
regarding the Act are obtained from as many stakeholders as possible.