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Modeling Mutual Assistance Among Hospitals: Innovations in Response to the 2009 H1N1
Influenza (and future) Outbreaks
James G. Hodge, Jr., J.D., LL.M.Professor, Johns Hopkins Bloomberg School of Public Health; Executive Director, Centers for Law and the Public’s Health: A Collaborative
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AcknowledgmentsEvan Anderson, J.D.
Research Associate, Johns Hopkins Bloomberg School of Public HealthSenior Fellow, Centers for Law and the Public’s Health: A Collaborative
Stephen P. Teret, J.D., M.P.H.Professor, Johns Hopkins Bloomberg School of Public Health
Co-Principal Investigator
Jon S. Vernick, J.D., M.P.H.Associate Professor, Johns Hopkins Bloomberg School of Public Health
Investigator
Thomas D. Kirsch, M.D., M.P.H., F.A.C.E.P.Associate Professor and Director of Operations
Department of Emergency Medicine, Johns Hopkins UniversityInvestigator
Gabor Kelen, M.D.Professor and Chair, Department of Emergency Medicine
School of Medicine, Johns Hopkins UniversityCo-Principal Investigator, PACER
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Principal Objectives• Briefly discuss the need to align health care services and
resources among hospitals during emergencies
• Examine the use of MOUs between hospitals during emergencies to help coordinate services and allocate resources
• Explain our research and methodology to develop a Model MOU
• Summarize the central features of the Model MOU
• Examine how the Model MOU helps to address key legal and policy issues during actual emergencies, including the H1N1 influenza outbreak
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Project Steps to Create a Model MOU
• Comprehensive examination of existing MOUs and various legal issues [September 2007]
• Creation of a Blueprint Outline identifying critical provisions of a Model MOU [April 2008]
• Vetting of the Blueprint Outline with Experts in Hospital Emergency Preparedness [May – October, 2008]
• Drafting and Vetting the Model MOU [November – May 2009]
• Completion of the Model MOU [May 13, 2009]
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Public health emergency preparedness - 1
• During government-declared emergencies, medical and health resources can become scarce…
leaving hospitals and other health care providers overwhelmed and challenged in their abilities to render patient care.
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Public health emergency preparedness - 2
• Hospitals and other health care
providers may need to share
resources (e.g., personnel,
equipment, supplies) to meet
patient surge capacity during
declared emergencies.
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Public health emergency preparedness - 3
• Collaboration among
hospitals and health care
entities in specific regions
can be vital to securing the
health of individuals and
populations.
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Key Challenges to Collaboration
• Creating consistency among hospital response efforts
• Facilitating policy decisions in times of medical triage
• Defusing obstacles to sharing resources and personnel, including concerns about:– Liability – Reimbursement– Coordination
• Providing clear directions for responses that convey and meet expectations
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Hospitals’ Use of MOUs in Emergencies - 1
• Memoranda of Understanding (MOUs) offer hospitals and administrators an important tool to coordinate personnel and resources in specific regions
• Nationally, hundreds of emergency care hospitals and other health care entities have executed MOUs over the last decade to facilitate collaborative efforts.
• However, these MOUs differ extensively in breadth, scope, quality, and utility.
• Many of these agreements do not reflect critical legal issues that may be implicated during declared states of emergency.
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Hospitals’ Use of MOUs in Emergencies - 2
The goal of Project B2 is to develop a national model
MOU for acute care hospitals (and potentially other
healthcare entities within a regional health care system)
that reflects legal principles and best practices during
declared emergencies.
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Construction of the Model MOU
• Drafted for those who may primarily rely on the document
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Construction of the Model MOU
• Drafted for those who may primarily rely on the document
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Construction of the Model MOU
• Unlike some existing MOUs, the Model MOU is not constructed as a binding contract.
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Model MOU - 1
• Definitions [Section 1.1]
• Activation of the Hospital Mutual Aid Network [Section 1.3]
• Effect of Emergency Laws [Section 1.4]
• Effect of National Incident Management System (NIMS) Requirements [Section 1.8]
• Requesting and Sharing Resources [Section 2.0 et seq.]
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Model MOU - 2
• Transfer of Resources [Section 2.2 – 2.4]
• Transfer of Personnel (employees, contractors, volunteers) [Section 2.5]
• Scope of Practice [Section 2.6]
• Transfer of Patients [Section 2.9]
• Liability of Hospitals and Healthcare Personnel [Section 3.1]
• Financial Obligations [Section 3.2]
• Mediation and Dispute Resolution [Section 4.2]
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Major Topical Themes in the Model MOU
• Legal Environment in Declared Emergencies
• Transferring Patients
• Liability of Individuals and Institutions
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Legal Environment During Declared Emergencies - 1
Once an emergency has been
declared (as in response to
the H1N1 outbreak), the legal
landscape changes.
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U.S. Confirmed Cases of 2009 U.S. Confirmed Cases of 2009 H1N1 FluH1N1 Flu
Last Updated: May 27, 2009Last Updated: May 27, 2009Source: CDC Source: CDC http://www.cdc.gov/h1n1flu/http://www.cdc.gov/h1n1flu/
>10 confirmed cases
Legend
>1 confirmed case(s)
No confirmed cases
>50 confirmed cases
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Multiple Levels of Emergency Declarations
LocalLocal
StateState
FederalFederal
Emergency
or
Disaster
Public
Health
Emergency
Emergency
or
Disaster
Public
Health
Emergency
“FEMA”
Emergency
“HHS”
Public
Health
Emergency
InternationalInternational
WHO
Public Health Emerg-ency of
Intl Concern
Emergency
Declarations
By Intl Govs
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2009 H1N1 Flu - WHO
• April 25, 2009: WHO Director General, Dr. Margaret Chan, declares first-ever public health emergency of international concern pursuant to the International Health Regulation (2005)
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2009 H1N1 Flu - DHHS
• April 26, 2009: U.S. DHHS Acting Secretary, Charles Johnson, declares a public health emergency
Via the Public Health Service Act, 42 U.S.C. § 247d
Allows federal, state, and local agencies to utilize federal resources to prevent and mitigate H1N1 flu
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Localities Declaring Emergencies/Disasters/Public Health Emergencies
Emergency, Disaster, and Public Health Emergency, Disaster, and Public Health Declarations in Response to H1N1 Flu Declarations in Response to H1N1 Flu
Los Angeles County
Last Updated: May 27, 2009Last Updated: May 27, 2009
Disaster Declaration
Emergency Declaration
Public Health Emergency Declaration
Federal DHHS Public Health Emergency Declaration
LEGENDLEGEND
Emergency and Public Health Emergency Declarations
San Mateo County
San Bernardino County
Alameda County
Sonoma County
American Samoa(U.S. Territory)
Ventura County
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San Francisco
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Multiple Levels of Emergency Declarations
Local emergency or disaster
Local public health emergency
State emergency or disaster
State public health emergency
Federal “FEMA” emergency
Federal “DHHS” public health emergency
Authorities, powers, actors, liabilities, immunities, and other critical legal issues vary depending on the type of declared emergency
International W.H.O. Public Health Emergency of International Concern (PHEIC)
International Govts Emergency Declarations
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Maryland Emergency Declarations
May 1, 2009:• Declaration of an Emergency • Declaration of Public Health
Emergency [Catastrophic health
emergency]
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Maryland Emergency Declarations
Declaration of Public Health Emergency
What the Declaration Authorizes: Potential Impact on Hospitals:
Isolation and quarantine of individuals or groups
Healthcare services may be redirected
Immunizes health care providers from civil or criminal liability
HCWs have limited liability protections
Penalizes any person who knowingly and willfully fails to comply with government orders
Nonconforming HC services may lead to sanctions
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Maryland Emergency Declarations
Declaration of State of Emergency
What the Declaration Authorizes Potential Impact on Hospitals:
Governmental use/distribution of supplies, equipment, facilities
Distribution meds may be dictated by state policy
Suspension of laws that impede emergency responses
Normal rules for HC delivery change
Evacuation of the population from threatened areas
HCWs/patients/staff may be diverted
Control movement of populations; closure of facilities
Availability of HCWs may be curtailed
Use of private property subject to compensation for governmental purposes
Taking of meds/ supplies may diminish available supplies
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Legal Environment During Declared Emergencies - 2
Unlike many existing MOUs, our Model MOU
recognizes and embraces these changes in the
legal environment. Specifically, the provisions
of the MOU shall be applied consistent with
changing legal norms.
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Transferring Patients in Emergencies - 1
• Transferring existing and prospective patients between hospitals may be essential during emergencies, but is subject to legal challenges:
• EMTALA • Resource availability• Appropriate processes• Benefits and burdens• Health information privacy
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Transferring Patients in Emergencies - 1
• The Model MOU addresses these issues:
• Anticipates and recognizes the effect of EMTALA waivers
• Requires hospitals to pre-determine “resourced beds”• Acute trauma care• Pediatric care• ICU
• Implements a process for hospitals seeking to transfer existing patients:
• Determination of a lack of adequate care• Seek patient consent• Notification of transfer • Safe transportation
• Assurances of health information privacy
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Liability Concerns - 1
Who may potentially face civil liability?
Hospital employees, contractors, and volunteers
Health care entities that transfer patients, resources, &
personnel
Health care entities that receive patients, resources, &
personnel
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Liability Concerns - 2Mitigating liability risks via the Model MOU
Recognition of changing standards of care
Use of volunteer health practitioners
Transferred employees/contractors
Lending hospitals
Failure to respond
Workers’ compensation
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Next Steps
• Circulate the Model MOU nationally for potential consideration and use by hospitals
• Scholarship to introduce and explain the Model MOU
• Present the Model MOU at various national or regional conferences
• Study its actual use in real-time emergencies to assess its utility
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Conclusion• Questions, comments, thoughts?
• For more information about legal preparedness issues, including real-time information related to legal responses to the 2009 H1N1 outbreak, please contact us or visit our website at: www.publichealthlaw.net
• James G. Hodge, Jr., [email protected]
• Stephen P. Teret, [email protected]
• Evan Anderson, [email protected]
• Thank you!