Legal Preparedness – Are You Ready for Ebola?

by Foley & Lardner LLP
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With confirmed Ebola Virus Disease (EVD) patients in the United States, health care facilities and providers should review whether they are compliant with existing laws and recommendations for emergency preparedness. Providers should take the time during non-emergency circumstances to identify issues, make advance legal decisions, and focus on training and education. There is a misperception that liability arises during exigency, but providers risk civil (and even potentially criminal) liability and loss of accreditation if they fail to plan for reasonably foreseeable emergency situations. This liability risk also extends to hospital administrators and emergency planners, who can be held individually liable. Planning requires an awareness of current laws and recommendations as well as an understanding of available resources.

Current Requirements

A number of laws and standards require hospitals and health care providers to plan for disasters, such as:

  • CMS proposed rule that would establish national emergency preparedness requirements for Medicare participating providers to ensure that they adequately plan for emergency situations;
  • State licensing statutes and regulations for facilities;
  • State emergency preparedness statutes that require evacuation plans;
  • Safety standards promulgated by the Occupational Safety and Health Administration (OSHA);
  • The Joint Commission accreditation requirements regarding emergency management;
  • Medicaid and Medicare accreditation requirements regarding evacuation and general disaster plans; and
  • NIMS and the Hospital Incident Management System (HICS) preparedness requirements, including having disaster plans and command structures in place.

In addition to these pre-existing requirements, the CDC has issued specific infection prevention and control recommendations for hospitalized patients with known or suspected EVD, as well as provided guidance regarding patient evaluation, laboratory specimen, collection, transport, and testing. Many nurses’ unions and healthcare workers are concerned about whether their hospitals have the proper personal protective equipment and whether the appropriate training for protecting healthcare workers has been provided. The CDC has also issued tools regarding how to protect healthcare personnel.

In the wake of September 11th, Katrina, SARS, and pandemic flu, requirements for emergency preparedness have continued to expand. Awareness and compliance with these requirements is crucial, especially in some states, where violations of legal planning requirements may suggest an automatic presumption of negligence or even be deemed negligence per se.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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