Administration and Leadership, Columns

Pro Bono: Avoiding Liability Issues During Natural Disaster Responses

Issue 3 and Volume 43.

Plan ahead to avoid liability issues during natural disasters

Worrying about legal liability would seem like the last consideration in a natural disaster, but EMS agencies should consider a few significant issues before deploying personnel for a natural disaster-related response, such as last year’s Hurricanes Harvey and Maria.

An Obligation to Respond

First, clarify whether your agency has the legal obligation—or the legal right—to respond to such incidents. Of course, if you’re the designated 9-1-1 agency for your city or town, you likely would have legal obligations to provide care and services.

However, there are often other EMS agencies in an area that may not have assigned or designated 9-1-1 territory, but that handle non- emergency or interfacility transports as their primary line of business.

It may be that your local EMS plan still considers those resources to be “fair game” for activation in a natural disaster, so be sure to consult your system’s EMS plans and operational guidelines to determine whether you may be required to contribute your agency’s assets. If not, then you should clarify—in advance—whether your resources can be offered or utilized in a natural disaster. (Most local agencies would say yes in a heartbeat, but never assume!)

More states are moving to implement temporary practice authorizations in disaster situations, which is a good thing.

interstate operations

If your deployment might cross state lines, be sure to check that other states’ EMS laws and regulations to determine if your agency is permitted to operate there without holding a license in that state under a disaster exception of some type.

If not, you may need to work with that state’s EMS office to determine your options. Some agencies participate in federal programs through FEMA, such as a disaster medical assistance team—which involves entering into a written contract and a formal activation plan.

You’ll also want to ensure that your individual EMS practitioners are permitted to practice in neighboring states in a disaster or declared emergency.

Although many states allow for this, not all do, and in some areas, it may be necessary to hold that state’s certification to practice there. In a true disaster, we wouldn’t expect to see a state EMS agency pursue disciplinary action against an out-of-state practitioner who came to help, but it’s always best to address this in advance of a disaster situation.

More states are moving to implement temporary practice authorizations in disaster situations, which is a good thing.

Furthermore, the Recognition of EMS Personnel Licensure Interstate Compact (REPLICA) has now been enacted in about a dozen states and continues to grow, which will allow for recognition of EMS personnel across state lines in a disaster.

Are You Covered?

Be sure to take a look at your agency’s various insurance coverages (e.g., auto, professional liability, workers compensation, etc.) and make sure you don’t have any restrictions or limitations on coverage when engaging in operations outside of your usual coverage area. Ordinarily there aren’t limitations or exclusions of that type, but again, don’t assume.

Clinical Protocols

Finally, be sure to obtain clarification—in advance of a natural disaster occurring—about what clinical protocols will be followed in the jurisdiction in which your personnel will be practicing. In some cases, your providers will still follow their “home” protocols, but in others, they may be required to follow the clinical protocols of the jurisdiction in which care is being provided.

Obtaining clarification in advance of this important issue can allow for proper training and preparedness of your staff, and address potential scope of practice or liability issues before they arise.

Conclusion

With a bit of planning, the liability and legal concerns that arise in a natural disaster can be addressed before a natural disaster occurs. This will allow your agency and your personnel to focus on the things that truly matter: caring for the sick and injured when disaster strikes.