LIABILITY LIABILITY CONSIDERATIONS FOR CONSIDERATIONS FOR VOLUNTEERSVOLUNTEERS

Randi Wind MilsapRandi Wind MilsapGeneral Counsel, WI Dept of General Counsel, WI Dept of Military AffairsMilitary Affairsrandi.milsap@wisconsin.govrandi.milsap@wisconsin.gov

RISKY BUSINESS?RISKY BUSINESS?

TYPES OF TYPES OF VOLUNTEERS VOLUNTEERS STATE AGENCY VOLUNTEERSTATE AGENCY VOLUNTEER LOCAL UNIT OF GOVERNMENT LOCAL UNIT OF GOVERNMENT

VOLUNTEERVOLUNTEER FEDERAL VOLUNTEERFEDERAL VOLUNTEER PROVIDER OF EQUIPMENT OR PROVIDER OF EQUIPMENT OR

SERVICES VOLUNTEERSERVICES VOLUNTEER ““GOOD SAMARITAN”GOOD SAMARITAN”

STATE GOVERNMENT STATE GOVERNMENT VOLUNTEER VOLUNTEER

LABOR MAY NOT BE COMPENSATEDLABOR MAY NOT BE COMPENSATED ALLOWS FOR REIMBURSEMENT OF:ALLOWS FOR REIMBURSEMENT OF:

– TRAVEL, LODGING & MEALSTRAVEL, LODGING & MEALS MUST REGISTER OR PRE-REGISTER MUST REGISTER OR PRE-REGISTER

IN WRITINGIN WRITING GOOD FAITH ACTS OR OMISSIONS GOOD FAITH ACTS OR OMISSIONS

COVEREDCOVERED

STATE GOVERNMENT STATE GOVERNMENT VOLUNTEER (con’t.)VOLUNTEER (con’t.)

WORKERS COMP.WORKERS COMP. COVERED AS COVERED AS

STATE EMPLOYEESTATE EMPLOYEE INCLUDES INCLUDES

TRAINING TRAINING ACTIVITIES ACTIVITIES

NO CAP IN NO CAP IN AMOUNT PAIDAMOUNT PAID

LIABILITY COVERED AS STATE COVERED AS STATE

EMPLOYEE FOR ANY EMPLOYEE FOR ANY CLAIM RELATED TO CLAIM RELATED TO ASSISTANCE ASSISTANCE PROVIDEDPROVIDED

RECKLESS, WANTON, RECKLESS, WANTON, OR INTENTIONAL OR INTENTIONAL ACTS/OMISSIONS ACTS/OMISSIONS NOT COVEREDNOT COVERED

LOCAL UNIT OF LOCAL UNIT OF GOVERNMENT GOVERNMENT VOLUNTEER VOLUNTEER

LABOR MAY NOT BE COMPENSATEDLABOR MAY NOT BE COMPENSATED ALLOWS FOR REIMBURSEMENT OF:ALLOWS FOR REIMBURSEMENT OF:

– TRAVEL, LODGING & MEALSTRAVEL, LODGING & MEALS MUST REGISTER OR PRE-REGISTER MUST REGISTER OR PRE-REGISTER

IN WRITINGIN WRITING GOOD FAITH ACTS OR OMISSIONS GOOD FAITH ACTS OR OMISSIONS

COVEREDCOVERED

LOCAL GOV’T LOCAL GOV’T VOLUNTEERVOLUNTEERWORKERS COMP.WORKERS COMP. COVERED AS COVERED AS

EMPLOYEE OF UNIT EMPLOYEE OF UNIT OF GOV’T FOR OF GOV’T FOR WHICH REGISTERED WHICH REGISTERED IN WRITING IN WRITING

INCLUDES TRAINING INCLUDES TRAINING ACTIVITIESACTIVITIES

REIMBURSED FOR REIMBURSED FOR EXCESS OF $1 PER EXCESS OF $1 PER CAPITA PER EVENTCAPITA PER EVENT

LIABILITY COVERED AS COVERED AS

EMPLOYEE OF UNIT EMPLOYEE OF UNIT OF GOV’T FOR ANY OF GOV’T FOR ANY CLAIM RELATED TO CLAIM RELATED TO ASSISTANCE ASSISTANCE PROVIDEDPROVIDED

RECKLESS, RECKLESS, WANTON, OR WANTON, OR INTENTIONAL INTENTIONAL ACTS/OMISSIONS ACTS/OMISSIONS NOT COVEREDNOT COVERED

HOW DO I REGISTER HOW DO I REGISTER IN IN WRITINGWRITING??

VOLUNTEER SIGN-IN SHEETSVOLUNTEER SIGN-IN SHEETS– MINIMAL CRITERIAMINIMAL CRITERIA

PRE-REGISTRATIONPRE-REGISTRATION

HAM RADIO LOGSHAM RADIO LOGS

DISPATCH LOGSDISPATCH LOGS

FEDERAL FEDERAL GOVERNMENT GOVERNMENT VOLUNTEERVOLUNTEER

FEDERAL VOLUNTEER FEDERAL VOLUNTEER PROTECTION ACT OF 1997 PROTECTION ACT OF 1997 (VPA)(VPA)– CIVIL IMMUNITY FOR VOLUNTEERS CIVIL IMMUNITY FOR VOLUNTEERS

SERVING NONPROFIT SERVING NONPROFIT ORGANIZATIONS OR GOVERNMENT ORGANIZATIONS OR GOVERNMENT ENTITIES FOR ACTS AND OMISSIONSENTITIES FOR ACTS AND OMISSIONS

VPA VOLUNTEER VPA VOLUNTEER COVERAGECOVERAGE PROTECTS VOLUNTEER WHO:PROTECTS VOLUNTEER WHO:

– PERFORMS OR DIRECTS SERVICES PERFORMS OR DIRECTS SERVICES – VOLUNTEERS FOR NONPROFIT OR VOLUNTEERS FOR NONPROFIT OR

GOVERNMENTAL ORGANIZATIONSGOVERNMENTAL ORGANIZATIONS– RECEIVES NO COMPENSATION OR RECEIVES NO COMPENSATION OR

ANYTHING VALUING MORE THAN ANYTHING VALUING MORE THAN $50/MO OR $600/YR$50/MO OR $600/YR REASONABLE REIMBURSEMENT FOR REASONABLE REIMBURSEMENT FOR

EXPENSES ARE ALLOWEDEXPENSES ARE ALLOWED

VPA COVERAGE VPA COVERAGE CONDITIONSCONDITIONS

VOLUNTEER ACTING WITHIN SCOPE OF VOLUNTEER ACTING WITHIN SCOPE OF RESPONSIBILITIES AT TIME OF RESPONSIBILITIES AT TIME OF ACT/OMISSIONACT/OMISSION

VOLUNTEER PROPERLY LICENSED, VOLUNTEER PROPERLY LICENSED, CERTIFIED OR AUTHORIZED TO ACTCERTIFIED OR AUTHORIZED TO ACT

NO WILLFUL, CRIMINAL OR RECKLESS NO WILLFUL, CRIMINAL OR RECKLESS MISCONDUCTMISCONDUCT

HARM NOT CAUSED BY OPERATING A HARM NOT CAUSED BY OPERATING A VEHICLE WHERE STATE REQUIRES VEHICLE WHERE STATE REQUIRES LICENSURELICENSURE

INTERACTION INTERACTION BETWEEN STATE AND BETWEEN STATE AND FEDERAL LAWFEDERAL LAW FEDERAL LAW PREEMPTS STATE FEDERAL LAW PREEMPTS STATE

LAW TO THE EXTENT LAW IS LAW TO THE EXTENT LAW IS INCONSISTENTINCONSISTENT

DOES NOT PREEMPT STATE LAW DOES NOT PREEMPT STATE LAW WHERE STATE PROVIDES WHERE STATE PROVIDES ADDITIONAL PROTECTION TO ADDITIONAL PROTECTION TO VOLUNTEERSVOLUNTEERS

BOTTOM LINE:BOTTOM LINE:

STATE AND FEDERAL VOLUNTEER STATE AND FEDERAL VOLUNTEER PROTECTION LAW DOES NOT PROTECTION LAW DOES NOT MEAN THAT VOLUNTEERS MEAN THAT VOLUNTEERS CANNOT BE SUED CANNOT BE SUED

VOLUNTEERS ARE LIABLE FOR VOLUNTEERS ARE LIABLE FOR CRIMINAL ACTIONS CRIMINAL ACTIONS

PROVIDERS OF PROVIDERS OF EQUIPMENT OR SERVICES EQUIPMENT OR SERVICES

VOLUNTEERVOLUNTEER CIVIL LIABILITY IMMUNITY FOR DEATH OR CIVIL LIABILITY IMMUNITY FOR DEATH OR

INJURY TO PERSONS OR PROPERTY INJURY TO PERSONS OR PROPERTY DAMAGEDAMAGE

APPLIES TO ACTS OR OMISSIONSAPPLIES TO ACTS OR OMISSIONS ALSO COVERS EQUIPMENT, MATERIALS, ALSO COVERS EQUIPMENT, MATERIALS,

FACILITIES & LABOR FURNISHEDFACILITIES & LABOR FURNISHED DOES NOT COVERDOES NOT COVER RECKLESS, WANTON, RECKLESS, WANTON,

OR INTENTIONAL MISCONDUCTOR INTENTIONAL MISCONDUCT NO INDEMNIFICATIONNO INDEMNIFICATION

PROVIDERS OF PROVIDERS OF EQUIPMENT OR SERVICES EQUIPMENT OR SERVICES

VOLUNTEER VOLUNTEER CIVIL IMMUNITY CIVIL IMMUNITY CONTINGENTCONTINGENT ON: ON:

– ACTIONS TAKEN UNDER DIRECTION OFACTIONS TAKEN UNDER DIRECTION OF GOVERNORGOVERNOR ADJUTANT GENERALADJUTANT GENERAL GOVERNING BODY, CHIEF OR ACTING GOVERNING BODY, CHIEF OR ACTING

CHIEF EXEC. OFFICER OR HEAD OF EM OF CHIEF EXEC. OFFICER OR HEAD OF EM OF COUNTY, TOWN, MUNICIPALITY OR TRIBECOUNTY, TOWN, MUNICIPALITY OR TRIBE

DHS (IF LEAD AGENCY)DHS (IF LEAD AGENCY) A LOCAL HEALTH DEPT AS AGENT OF DHS A LOCAL HEALTH DEPT AS AGENT OF DHS

PROVIDERS OF PROVIDERS OF EQUIPMENT OR SERVICES EQUIPMENT OR SERVICES

VOLUNTEERVOLUNTEER ANDAND ACTIONS TAKEN ARE IN ACTIONS TAKEN ARE IN

RESPONSE TO:RESPONSE TO:– ENEMY ACTION, ORENEMY ACTION, OR– A DISASTER, ORA DISASTER, OR– FEDERALLY DECLARED STATE OF FEDERALLY DECLARED STATE OF

EMERGENCY, OREMERGENCY, OR– STATE OF EMERGENCY DECLARED STATE OF EMERGENCY DECLARED

BY GOVERNOR BY GOVERNOR

GOOD SAMARITAN GOOD SAMARITAN LAW LAW

§§845.48 (1) Wis. Stats.845.48 (1) Wis. Stats. CIVIL LIABILITY IMMUNITY CIVIL LIABILITY IMMUNITY APPLIES TO PERSON WHO APPLIES TO PERSON WHO

RENDERS “EMERGENCY CARE” AT RENDERS “EMERGENCY CARE” AT SCENE OF EMERGENCY SCENE OF EMERGENCY IN GOOD IN GOOD FAITHFAITH

APPLIES TO ACTS OR OMISSIONSAPPLIES TO ACTS OR OMISSIONS DOES NOT COVERDOES NOT COVER RECKLESS, RECKLESS,

WANTON OR INTENTIONAL WANTON OR INTENTIONAL CONDUCTCONDUCT

““GOOD SAM” GOOD SAM” LIMITATIONSLIMITATIONS

DOES NOT APPLY TO EMPLOYEES DOES NOT APPLY TO EMPLOYEES TRAINED IN HEALTHCARE OR TRAINED IN HEALTHCARE OR HEALTH CARE PROFESSIONALS IF:HEALTH CARE PROFESSIONALS IF:– EMERGENCY CARE RENDERED FOR EMERGENCY CARE RENDERED FOR

COMPENSATION AND WITHIN SCOPE COMPENSATION AND WITHIN SCOPE OF USUAL AND CUSTOMARY OF USUAL AND CUSTOMARY EMPLOYMENTEMPLOYMENT

– PROFESSIONAL “BENEFIT”PROFESSIONAL “BENEFIT”

““GOOD SAM” GOOD SAM” EMERGENCY CARE EMERGENCY CARE

RULINGRULING MUELLER v. McMILLIAN WARNER MUELLER v. McMILLIAN WARNER

INSURANCE CO.INSURANCE CO. REFERS TO INITIAL EVALUATION REFERS TO INITIAL EVALUATION

AND TREATMENT OF AN INJURED AND TREATMENT OF AN INJURED PERSON UNTIL CARE CAN BE PERSON UNTIL CARE CAN BE TRANSFERRED TO MEDICAL TRANSFERRED TO MEDICAL PROFESSIONALSPROFESSIONALS

HOW DOES HIPAA HOW DOES HIPAA APPLY TO A APPLY TO A

VOLUNTEER?VOLUNTEER?

HIPAAHIPAA

ARE YOU A “COVERED ENTITY” UNDER ARE YOU A “COVERED ENTITY” UNDER HIPAA?HIPAA?– NO, UNLESS YOU ARE REPRESENTING OR ACTING NO, UNLESS YOU ARE REPRESENTING OR ACTING

AS AN EMPLOYEE OF A HOSPITAL, HEALTH CARE AS AN EMPLOYEE OF A HOSPITAL, HEALTH CARE CLEARINGHOUSE OR A HEALTH CARECLEARINGHOUSE OR A HEALTH CARE

WRONGFUL DISCLOSURE OF INDIVIDUALLY WRONGFUL DISCLOSURE OF INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATIONIDENTIFIABLE HEALTH INFORMATION– IF YOU KNOWINGLY USE OR CAUSE TO BE USED IF YOU KNOWINGLY USE OR CAUSE TO BE USED

INDIVIDUALLY IDENTIFIABLE HEALTH INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION YOU CAN BE PUNISHED BY FINES UP INFORMATION YOU CAN BE PUNISHED BY FINES UP TO $250,000 AND UP TO 10 YEARS IN PRISONTO $250,000 AND UP TO 10 YEARS IN PRISON

– BE CAREFUL WHAT YOU SAY REGARDING HEALTH BE CAREFUL WHAT YOU SAY REGARDING HEALTH INFORMATION!INFORMATION!

OTHER OTHER CONSIDERATIONSCONSIDERATIONS

DEPLOYMENT ISSUESDEPLOYMENT ISSUES

HOW ARE VOLUNTEERS HOW ARE VOLUNTEERS ACTIVATED OR DEPLOYED?ACTIVATED OR DEPLOYED?

SELF-DEPLOYMENT?SELF-DEPLOYMENT?– NOTIFICATIONNOTIFICATION

BACK-UP OR BUDDY SYSTEM?BACK-UP OR BUDDY SYSTEM?

TRANSPORTATION TRANSPORTATION ISSUESISSUES

DO YOUR VOLUNTEERS DO YOUR VOLUNTEERS TRANSPORT PATIENTS/VICTIMS?TRANSPORT PATIENTS/VICTIMS?

DO YOUR VOLUNTEERS DELIVER DO YOUR VOLUNTEERS DELIVER SUPPLIES?SUPPLIES?

INSURANCE COVERAGE?INSURANCE COVERAGE? PERSONAL? ORGANIZATION?PERSONAL? ORGANIZATION?

DO VOLUNTEERS DRIVE IN DO VOLUNTEERS DRIVE IN HAZARDOUS CONDITIONS?HAZARDOUS CONDITIONS?

TRAINING ISSUESTRAINING ISSUES

ARE YOUR VOLUNTEERS TRAINED ARE YOUR VOLUNTEERS TRAINED TO PERFORM SPECIALIZED TASKS?TO PERFORM SPECIALIZED TASKS?

DO YOU SUSPECT THAT YOUR DO YOU SUSPECT THAT YOUR VOLUNTEERS ARE PERFORMING VOLUNTEERS ARE PERFORMING TASKS FOR WHICH THEY ARE NOT TASKS FOR WHICH THEY ARE NOT TRAINED?TRAINED?

DO YOU HAVE SAFETY BRIEFINGS?DO YOU HAVE SAFETY BRIEFINGS? AGE LIMITATIONS?AGE LIMITATIONS?

RISK MANAGEMENT RISK MANAGEMENT BEST PRACTICESBEST PRACTICES

HELPS REDUCE LIABILITYHELPS REDUCE LIABILITY WHAT DO YOU PROVIDE?WHAT DO YOU PROVIDE?

– SPECIALIZED TRAININGSPECIALIZED TRAINING– SPECIAL EQUIPMENTSPECIAL EQUIPMENT– SPECIAL GEAR AND CLOTHINGSPECIAL GEAR AND CLOTHING

ARE LISTS OF VOLUNTEERS ARE LISTS OF VOLUNTEERS MAINTAINED AND KEPT CURRENT?MAINTAINED AND KEPT CURRENT?

RISK ASSESSMENTS RISK ASSESSMENTS

DO YOU PRE-QUALIFY VOLUNTEERS?DO YOU PRE-QUALIFY VOLUNTEERS? VOLUNTEER REGISTRATION FORMS?VOLUNTEER REGISTRATION FORMS?

– ID SKILLS?ID SKILLS?– ID SPECIAL TRAINING OR LICENSES ID SPECIAL TRAINING OR LICENSES

HELD?HELD? IMMUNIZATION INFORMATION?IMMUNIZATION INFORMATION? RELEASE OF LIABILITY STATEMENTS?RELEASE OF LIABILITY STATEMENTS?

– PERSONAL AND FOR PROPERTY OWNERSPERSONAL AND FOR PROPERTY OWNERS

BACKGROUND CHECKSBACKGROUND CHECKS

AN IMPORTANT CONSIDERATIONAN IMPORTANT CONSIDERATION DEVELOP A WRITTEN POLICYDEVELOP A WRITTEN POLICY PREPARED IN ADVANCEPREPARED IN ADVANCE REDUCES EXPOSURE TO REDUCES EXPOSURE TO

HARMING THE VULNERABLE HARMING THE VULNERABLE BUILDS CREDIBILITY OF YOUR BUILDS CREDIBILITY OF YOUR

ORGANIZATIONORGANIZATION SEXUAL OFFENDER REGISTRIES?SEXUAL OFFENDER REGISTRIES?

CREDENTIALINGCREDENTIALING

DOES YOUR ORGANIZATION OR DOES YOUR ORGANIZATION OR THE SERVICE PROVIDED REQUIRE THE SERVICE PROVIDED REQUIRE THAT VOLUNTEERS MAINTAIN A THAT VOLUNTEERS MAINTAIN A LICENSE OR CERTIFICATION?LICENSE OR CERTIFICATION?

WHO ENSURES THAT LICENSE OR WHO ENSURES THAT LICENSE OR CERTIFICATION ARE CURRENT?CERTIFICATION ARE CURRENT?

WHO IS CUSTODIAN OF THOSE WHO IS CUSTODIAN OF THOSE RECORDS?RECORDS?

INSURANCE POLICIESINSURANCE POLICIES

SHOULD YOUR ORGANIZATION SHOULD YOUR ORGANIZATION MAINTAIN LIABILITY INSURANCE?MAINTAIN LIABILITY INSURANCE?– FOR VOLUNTEER INJURIES?FOR VOLUNTEER INJURIES?– FOR DAMAGES CAUSED BY FOR DAMAGES CAUSED BY

VOLUNTEERS?VOLUNTEERS? DO YOU MAINTAIN INSURANCE DO YOU MAINTAIN INSURANCE

COVERAGE ON YOUR VEHICLES COVERAGE ON YOUR VEHICLES AND SPECIAL EQUIPMENT?AND SPECIAL EQUIPMENT?

MISCELLANEOUS MISCELLANEOUS CONSIDERATIONSCONSIDERATIONS VICARIOUS LIABILITY TO VICARIOUS LIABILITY TO

MUNICIPALITIESMUNICIPALITIES WI OPEN RECORDS LAWWI OPEN RECORDS LAW INJURIES TO VOLUNTEERS INJURIES TO VOLUNTEERS

– TIMELY NOTIFICATION OF TIMELY NOTIFICATION OF “EMPLOYER”“EMPLOYER”

HOW CAN YOU REDUCE HOW CAN YOU REDUCE LIABILITY?LIABILITY? EXERCISE SOUND EXERCISE SOUND

REASONABLE JUDGMENTREASONABLE JUDGMENT ACT IN GOOD FAITHACT IN GOOD FAITH MAKE DECISIONS WITH MAKE DECISIONS WITH

APPRECIATION OF LIABILITY APPRECIATION OF LIABILITY CONSIDERATIONS CONSIDERATIONS

QUESTIONS OR QUESTIONS OR COMMENTS?COMMENTS? THANK YOU FOR THANK YOU FOR

YOUR TIME AND YOUR TIME AND ATTENTION!!ATTENTION!!