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10 - Legislative Authorities and Regulatory Issues


Published online by Cambridge University Press:  05 August 2011

Kristi L. Koenig
University of California, Irvine
Carl H. Schultz
University of California, Irvine
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Catastrophic disasters disrupt the health and medical system. Medical infrastructure (e.g., hospitals, clinics, doctors' offices, laboratories, pharmacies, and medical suppliers) may suffer physical damage, or lose electrical power or communications capabilities such as Internet and computer services. A disaster creates new requirements for medical care when large numbers of people suffer from serious injuries or infectious diseases or are exposed to chemical, radiological, or biological contamination. As demonstrated by the 2004 Indian Ocean tsunami and the 2005 Hurricane Katrina in the U.S., a disaster can generate evacuees in the hundreds of thousands that are separated from their regular medical care network (e.g., doctors, nurses, prescription medications, and medical records), yet continue to require baseline health and medical needs.

Catastrophic disasters also challenge the legal basis of the medical system. Compliance with some legal requirements becomes impossible and practitioners must be aware of current standards and legal mandates that exist in the disaster environment. For example, in the United States, federal rules require clinicians to perform a medical screening examination and stabilize any patient who arrives on hospital grounds requesting medical care. How does this regulation apply when there is a physical plant disruption such as a hospital flood or fire, or chemical or radiological contamination of the building? Another example is that virtually all sovereign governments ensure the competence of medical professionals by issuing licenses to those authorized to practice medicine within its borders – yet in a disaster, medical volunteers will cross state or national boundaries to treat disaster victims.

Koenig and Schultz's Disaster Medicine
Comprehensive Principles and Practices
, pp. 151 - 164
Publisher: Cambridge University Press
Print publication year: 2009

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“Legal Issues” Report identified in a study for the Department of Health and Human Services' Emergency System for the Advance Registration of Volunteer Health Professionals, September 2006 Draft. Available at
This doctrine of sovereign immunity, which originates from English common law during the feudal period, premised on the maxim that the “King could do no wrong” persists as a basic principle of sovereignty. See 74 Fordham L. Rev. 2927, April 2006. The Federal Tort Claims Act, 28 USC § 1346(b), provides limited exception to the doctrine of sovereign immunity only under certain circumstances.
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Malpractice insurers in turn manage their risk by requiring that insured practitioners and institutions establish systems and procedures that will reduce the likelihood of malpractice judgments.
42 U.S.C. § 14503.
Cal. B&P § 2395.
Cal. GC § 8659.
42 U.S.C. § 14503.
Fla. Stat. § 252.51.
42 U.S.C. § 239(2).
N.Y. Unconsol. Law § 9101.
The Commission on Uniform State Laws has approved the Uniform Volunteer Emergency Health Practitioners Act. This “Uniform Act” – which becomes “law” in a state only when adopted by state legislatures – includes alternate provisions on liability with varying protection. Pre-final as of 10/17/2007 Available at:
In Florida, a person is not liable for civil damages arising out of care or treatment, in emergency situations, including declared emergencies. Fla. Stat. § 252.51.
Under 42 U.S.C. §§ 300hh–15, the federal government extends immunity to “Intermittent Disaster-Response Personnel” appointed by the Secretary, to assist the Corps in carrying out duties during a public health emergency. Applicable protections of section 2812 shall apply to such individuals. Pandemic and All-Hazards Preparedness Act PL109–417, December 19, 2006, 120 Stat. 2831.
42 USC § 264 is the principal federal quarantine statute. The Department of Health and Human Services has proposed revised quarantine regulations, but these have not been finalized at the time of this writing. 70 Fed.Reg. 71892 November 30, 2005.
Medicare Spending and Financing, The Henry J Kaiser Foundation Fact Sheet, June 2007.
Total expenditure for Medicaid in 2007 was $181.7 billion, representing approximately 9% of the $2 trillion spent on healthcare annually in the United States. Ku L., “Medicaid costs are growing more slowly than costs for Medicare or private insurance,” Center on Budget and Policy Priorities, Nov. 13, 2006.
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45 C.F.R. § 164.510.
45 C.F.R. § 164 et seq.
45 C.F.R. § 164.512(b).
CA Civil Code § 56.10.
45 C.F.R. § 164.510(b)(3).
45 C.F.R. § 164.510(b)(4).
CA Civil Code § 56.10(c)(15).
Arkansas C.A § 20–27–1706: “Pursuant to the Health Insurance Portability and Accountability Act of 1996, disclosure of protected health information is allowed for public health, safety, and law enforcement purposes.”
California Probate Code § 4717.
6 U.S.C. § 774.
45 C.F.R. § 164.512(f)(2). Disclosure to law enforcement officials is also authorized where it is pursuant to a court subpoena or order. 45 CFR § 164.512(f)(l)(ii).
45 C.F.R. § 164.512.
45 C.F.R. §164.515 Accounting for disclosures of protected health information.
45 C.F.R. § 164.512.
45 CFR § 160.103.
22 Cal. Code Regs. § 70751 et seq.
Health and Safety Code § 123149.
Leavitt Mike, Secretary of the Department of Health and Human Services, “Waiver Under Section 1135 of the Social Security Act,” September 4, 2005. Available at: Accessed November 25, 2008.
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Best v. Bellevue Hospital New York. 115 Fed.Appx. 459. C.A.2 (N.Y.), 2004. After this two year saga, the federal court declared that in order to detain a patient under the health code, New York had to comply with both procedural due process (“the right to a particularized assessment of an individual's danger to self or others”) and substantive due process (“the right to less restrictive alternatives”).
Kirk v. Wyman, 83 S.C. 372 at 394 (1909)(dissenting).
Wellman v. Faulkner, 715 F.2d 269, In this case, the judge held that inadequate medical care and overcrowding in prison was unconstitutional.
Best v. Bellevue Hospital New York.
The Georgia provision was adopted after review of the Model State Emergency Health Powers Act.
In, Moore v. Morgan, C.A.11 (Ala.) 1991, 922 F.2d 1553, County failed to satisfy constitutional responsibility in maintaining county jail by delay in rectifying overcrowded conditions and was held liable for damages, as provided under 42 U.S.C. § 1983 and U.S.Const.amend.VIII.
Joint Commission MS 4.110.
In disasters other than minor ones, the declaration also constitutes authority for medical practitioners licensed in other jurisdictions to practice in Florida, subject to such conditions as the declaration may prescribe. FLA. Stat. 252.36(3)(c)(1)(2004).
California Emergency Services Act § 8850 et seq.
JCAHO Standard M.S.4.110 (amended January 2004).
D.C. HOSPITAL ASSOCIATION, MUTUAL AID MEMORANDUM OF UNDERSTANDING 6–10 (Sept 27, 2001), available at 22 J. Contemp. Health L. & Policy 5.
Leavitt Mike, Secretary of the Department of Health and Human Services, “Waiver Under Section 1135 of the Social Security Act,” September 4, 2005. Available at:
The National Fire Protection Association (NFPA) § 1600 provides disaster and emergency management and business continuity programs the criteria to assess current programs or to develop, implement, and maintain aspects for prevention, mitigation, preparation, response, and recovery from emergencies. Voluntary private sector compliance with NFPA § 1600 recommendations was strongly encouraged by the U.S. Congress in passing in the 9/11 bill, P.L. 110–53, 6 U.S.C 321k. However, Joint Commission standards supersede any NFPA recommendations.
SOM, Appendix A, Interpretive Guidelines for Hospitals (guidance for § 482.41) and Appendix W. Interpretive Guidelines for Critical Access Hospitals (§ 485.623).
29 U.S.C § 651
Title 22, Cal. Code Regs. §§ 7(a), 71539(a), and 72551.
Centers for Medicare & Medicaid Services, Department of Health and Human Services. Medicare Program: Clarifying Policies Related to the Responsibilities of Medicare-Participating hospitals in Treating Individuals with Emergency Medical Conditions, Federal Register. September 9, 2003, Vol. 68, No. 174.
42 C.F.R. § 489.24.
42 U.S.C. § 1320b-5
Leavitt M, Secretary of the Department of Health and Human Services, “Waiver Under Section 1135 of the Social Security Act,” September 4, 2005. Available at:
Hassol A., Zane R., Reopening Shuttered Hospitals to Expand Surge Capacity; Bioterrorism and Other Public Health Emergencies –Tools and Models for Planning and Preparedness, February 2006.
HSPD 5. Available at:–9.html.
HSPD 8. Available at:–6.html.
Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. No. 107–88, 116 Stat. 594; see also Pandemic Flu and All-Hazards Preparedness Act, Pub.L. No. 109–417.
FY 2007 budget allocates $3.393 billion state and local governments for disaster preparedness.
42 USCA § 5122.
For example in FEMA Document 508–5, “Typed Resource Definitions, Health and Medical Resources (May 2005 – available as of April 2007 at
P.L. 93–288, as amended, 42 USC §§ 5121–5206 and related authorities.
FEMA Recovery Policy 9524, available at
44 CFR Part 13, “Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.”
44 CFR § 13.36.
Ga. Code Ann., § 38–3–51. In California the statute is even broader: it provides that the Governor may “commandeer or utilize any private property or personnel deemed by him necessary in carrying out his responsibilities and the state shall pay the reasonable value thereof.” California Emergency Services Act, GC § 8572. The power granted to commandeer personnel is unusual in emergency management statutes, and the limitations on exercise of this authority are unclear.
E.g., HSPD 5, HSPD 8.
California Emergency Services Act, GC § 8571.
Bragg, A., “Experiencing the 2004 Florida Hurricanes: A Lawyers Perspective,” in Abbott, E. and Hetzel, O., A LEGAL GUIDE TO HOMELAND SECURITY AND EMERGENCY MANAGEMENT FOR STATE AND LOCAL GOVERNMENTS, (ABA Press 2005).
Journal of Law, Medicine, and Ethics, Supplement to Volume 36, available at
Emile, F. Chang, MSC, Howard, Backer MD, Tareg, A. Bey, MD, and Kristi, L. Koenig, MD (2008) “Maximizing Medical and Health Outcomes after a Catastrophic Disaster: Defining a New “Crisis Standard of Care,” Western Journal of Emergency Medicine: Vol. 9: No. 3, Article 18. Available at: Accessed November 25, 2008.Google Scholar
“American Lawyers” Public Information Series; Community panflu preparedness: A checklist of key legal issues for healthcare providers; 2008 American Health Lawyers Association, pg. 20, footnote 45. Available at: Accessed November 25, 2008.
A “Table Top” is so named because it does not try to recreate an emergency event by simulating the event and actually deploying response resources (ambulances, helicopters, doctors, nurses, and so forth), rather a scenario is presented to participants representing their organizations. These participants – perhaps while sitting around a table – think through and describe how they would respond to an event and interact with other organizations.

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