CREDENTIALING, PERSONNEL AND EMTALA ISSUES

1. CREDENTIALING, PERSONNEL AND EMTALA ISSUES ABBIE P. MALINIAK, ESQ. Senior Counsel Fulbright & Jaworski, L.L.P. Phone : (213) 892-9337 E-Mail : amaliniak@fulbright.com

2. Patient Safety and Liability Issues • Credentialing and Privileging • Need for temporary credentialing and relaxation of standards during emergency • Need to address in Medical Staff Bylaws NOW

3. Patient Safety and Liability Issues • Credentialing and Privileging • JCAHO requires hospitals to establish procedure for verifying credentials and granting privileges during and after disaster (HAS Std. MS 4.10) • After Emergency Management Plan has been activated (HAS Std. EC 4.10)

4. Patient Safety and Liability Issues • Licensing, Credentialing/Privileging Issues • JCAHO – If hospital’s disaster plan is activated, may implement modified process for determining qualifications and competence of volunteer practitioners (Std HR 1.25 and MS 4.110) • Still limited to activities under license • Must verify identity and licensure similar to verification process for granting temporary privileges to meet important patient care needs (Std. MS 4.100) • Need to address emergency licensing in Medical Staff Bylaws NOW

5. Patient Safety and Liability Issues • Licensing Issues • Out-of-State Professionals – National Emergency Management Assistance Compact (EMAC) 2006, which California ratified, allows for reciprocity among member states and licensed professionals. • Medicare requirements also waived for Katrina providers

6. Patient Safety and Liability Issues • Telemedicine • Consider telemedicine capability and privileges so physicians not required to attend hospital • Hospital Admissions • May need to cancel elective admissions during triage phase • Use non-acute beds for acute patients

7. Patient Safety and Liability Issues • Standard of Care • Legal concept – Action a reasonably prudent practitioner would take under same or similar circumstances • Would adapt to emergency situations • Informed consent

8. Patient Safety and Liability Issues • Good Samaritan Statute – B&P §2395 • Liability of licensee for care rendered at scene of emergency • In California, person not liable where render care at scene of emergency in good faith and not for compensation • Not including Emergency Departments or medical care site if part of normal course of practice

9. Patient Safety and Liability Issues • Good Samaritan Statute – B&P §2395 • “Scene of emergency” includes Emergency Departments of hospitals in the event of a medical disaster • “Medical disaster” means a duly proclaimed state of emergency or local emergency declared pursuant to the California Emergency Services Act

10. Patient Safety and Liability Issues • Good Samaritan Statute – B&P §2396 • Liability for emergency care for complications after prior care by another • Key inquiry – whether duty of care pre-existed the emergency

11. Patient Safety and Liability Issues • Good Samaritan Statute – B&P §2727.5 • Protects registered nurses only if care rendered outside the place and scope of employment

12. Patient Safety and Liability Issues • Good Samaritan Statute – B&P §2861.5 • Protects licensed vocational nurses only if care rendered outside the place and scope of employment

13. Patient Safety and Liability Issues • Patient Abandonment • Potential problem: Reluctance of physician to continue to care for patient once diagnosis of pandemic flu is confirmed. • Legal issue: When does that physician face liability for patient abandonment?

14. Patient Safety and Liability Issues • Patient Abandonment • Scenario: Physician accepts patient for treatment • Legal Standard: • Cannot withdraw treatment without due notice to patient AND ample opportunity to afford another medical attendant • In absence of patient’s consent must not only give due notice BUT must also secure presence of another physician

15. Patient Safety and Liability Issues • Patient Abandonment • If shortage of physicians in hospitals due to pandemic, may not have a choice but to continue providing medical care even if have initial contact with patient in the Emergency Department. • Hongsathavij v. Queen of Angels/Hollywood Presbyterian Medical Center (1998) 62 Cal.App.4th 1123

16. Patient Safety and Liability Issues • Government Code §8659: Physicians, hospitals, pharmacists, nurses and dentists who render services during a state of emergency or local emergency at the request of a health officer have no liability for injuries sustained by any person from those services, regardless of the circumstances or cause, except for willful acts or omissions

17. Patient Safety and Liability Issues • Prescription Medications and Treatment • Only authorized individuals to have access to drugs • Only licensed individuals to prescribe and administer drugs

18. Patient Safety and Liability Issues • Prescription Medications and Treatment • Maintain drug integrity • Relaxation of standards for emergencies? • Volunteer physicians and pharmacists to act • Acceptance of donated drugs

19. Employment and Staffing Issues • Disaster Policy for Staff • Must have in place NOW. Do not wait for emergency • Accessible via hardcopy or intranet • Telecommuting policy for emergency • Voluntary National Standards for Disaster Preparedness (National Fire Protection Association 1600) www.nfpa.org

20. Employment and Staffing Issues • Things to do in advance of pandemic: • Identify critical staff and personnel • Medical staff • Nurses and allied health professionals • Patient support • Plant operations • Vendors • Draft policies

21. Employment and Staffing Issues • Communicating with Staff (before, during, and after) • Call-in line or website for further info • Public announcement postings • Chain of command/Telephone chain • Security of communications (passwords) • Public Health Education for Staff

22. Employment and Staffing Issues • Attendance Issues • Consider flex time alternatives for jobs that don’t require presence at hospital • Sick workers may be problem for spreading disease • Family and Medical Leave Act issues for prolonged absences

23. Employment and Staffing Issues • Attendance Issues • Health Officer can order staff to be tested and cleared before returning to work • Have contingency plan for high absenteeism • Alternative workplaces

24. Employment and Staffing Issues • Payment and Benefits Issues • Policy for payment of wages during emergency if absent due to emergency • Policy on granting (paid) time off • Providing support services (i.e., counseling, financial assistance, etc.) • Temporary housing

25. Employment and Staffing Issues • Other Legal Issues • Mandated attendance • Mandated vaccinations • Overtime wage and hour

26. Employment and Staffing Issues • Other Legal Issues • Maximum hours or ratios under applicable contracts or regulations • OSHA standards and compliance during bioevent • Workers’ Compensation (i.e., illness contracted on the job; quarantine/isolation; harmed by mandated vaccination)

27. EMTALA Issues • Hospital must provide screening and stabilization for person presenting at ED • Waiver of sanctions during Katrina emergency • HHS Secretary has authority to temporarily waive EMTALA requirements in declared emergencies • HHS waived sanctions for EMTALA violations for hospitals with ERs located in “emergency areas” if have to transfer prior to stabilization if due to Katrina • Hospital still obliged to conduct screening