ABA Health eSource
 November 2006 Volume 3 Number 3

Disaster Preparedness: Legal Issues Faced by Hospitals in the Post-Katrina Environment
by Sean Finan, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, AL

Sean FinanImpact of Katrina

Hurricane Katrina was the largest natural disaster in American history, resulting in the loss of approximately 1,300 lives, 18,000 business, and 200,000 homes. 1 The storm wreaked havoc on approximately 93,000 square miles across Louisiana, Mississippi, Alabama and Florida, with a damage cost estimate at over $37 billion. 2 The healthcare infrastructure along the entire Gulf Coast was completely destroyed in some areas, leaving significant numbers of patients in grave jeopardy and resulting in numerous deaths. To this day, many facilities remain uninhabitable and unsalvageable due to extensive structural damage. 3

This event has exposed numerous issues for the healthcare community in terms of preparing for the next big disaster. Although local governments and facilities had plans in place, there was limited ability to implement them. This was due to several factors, including inadequate funding, lack of proper preparation for plan implementation, and insufficient communication capabilities or backup electrical power. For example, many backup generators in New Orleans hospitals were located in basements or on ground level, leaving them vulnerable to flooding. This article gives a brief overview of the various legal issues that must be considered by hospitals when engaging in disaster planning and preparation.

Legal Standards

Hospitals are faced with a host of regulations and requirements with respect to disaster planning. For example, state licensing provisions typically set forth various minimum standards regarding the maintenance of a disaster plan. Such standards often address evacuation procedures, measures for receiving an influx of patients, and procedures for ensuring that medical records are adequately maintained and accompany patients during evacuation. 4 Also included are standards dealing with the interruption of utilities and after life care. 5

At the federal level, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) has issued numerous emergency management requirements. These requirements outline minimum standards for hospitals, including the development of an emergency management plan, assignment of staff, evacuation procedures, patient transfers, communications, and utilities. 6 Furthermore, JCAHO requires that hospitals conduct regular response drills and install emergency electrical power sources. 7 JCAHO provides that disaster privileges may be granted when a hospital's emergency management plan has been activated and the organization is unable to handle immediate patient needs. 8 Finally, it should be noted that in September 2006, JCAHO issued a Sentinel Event alert regarding the prevention of adverse events caused by emergency electrical power system failures. 9 JCAHO has provided new recommendations regarding the standards that address power outages. This alert is in direct response to the power failures and resulting deaths that occurred during Katrina.

Hospitals also fall within the ambit of the Occupational Safety and Health Administration's (OSHA) hospital and community response requirements. The OSHA guide for hospital emergency response focuses on chemical, biological, physical and radioactive hazards. 10 OSHA also has its own minimum requirements for emergency plans. While similar to those provided by JCAHO, there are significant differences due to OSHA's focus on chemical and biohazard exposure and its provisions regarding the coordination of response plans with other segments of the community.

In addition to the planning frameworks propounded by OSHA and JCAHO, other legal issues applicable during a disaster include the Emergency Medical Treatment and Active Labor Act (EMTALA), the Health Insurance Portability and Accountability Act (HIPAA), and standards of care. EMTALA generally provides that if an individual seeks treatment for what may be an emergency medical condition, prior to transferring the patient, the hospital is obligated to provide a medical screening exam and stabilizing treatment if the individual is determined to have an emergency condition. 11 HIPAA requires a patient's consent to speak with family members and gives patients the right to request privacy restrictions regarding disclosure of personal health information. 12 However, the Secretary of the Department of Health and Human Services (DHHS) is permitted to temporarily waive EMTALA and HIPAA requirements for healthcare providers in an emergency area. 13 Secretary Leavitt issued numerous waivers following Katrina regarding EMTALA, HIPAA, and other healthcare regulations.

Lastly, in terms of standards of care, medical malpractice is tort law. All states have passed good Samaritan laws, which generally provide immunity to healthcare providers rendering aid during an emergency. 14 Some states further impose a higher burden on plaintiffs bringing suit against healthcare providers for the provision of care during an emergency. Such burdens typically require the plaintiff to show willful or wanton negligence. 15

Response Structures

Against this backdrop of legal standards, there are numerous systems and structures that have been developed at the local, state, and federal levels for dealing with disasters. Under the Stafford Act, the President has the power to declare an “emergency” and send federal assets and equipment (including the military), as well as Federal Emergency Management Agency (FEMA) manpower to disaster stricken areas. 16 Once a disaster has been declared, the federal government coordinates operations with state and local governments and the private sector according to the framework established by the National Response Plan (NRP). 17 The Secretary of the Department of Homeland Security (DHS) is charged with the duty of implementing the National Incident Management System under the NRP. The NRP establishes a comprehensive approach to managing domestic incidents. The NRP integrates incident management disciplines, designated as Emergency Support Functions (ESFs), into a unified structure and establishes protocols for responding to terrorist attacks and natural or manmade disasters. 18 ESF-8 is the Public Health and Medical Services emergency function. Often, state departments of health will share oversight responsibility for ESF-8 with state hospital systems. Finally, it should be noted that the NRP has undergone recent changes that specifically address hurricane disaster response. 19 Most of these changes pertain to functions of joint field offices for regional response.

Within this scheme, there also exists the National Disaster Medical System. Operating under DHS, this system was established to support federal agencies in the management and coordination of the Federal medical response to major emergencies. 20 Support is provided through the deployment of various medical, nursing, pharmacy, mortuary, and veterinary teams to disaster areas. These teams provide equipment and supplies, and assist with patient movement and medical care.

At the other end of the spectrum, state and local governments issue additional guidelines for hospitals. Most states have adopted emergency operations plans that fall in line with the NRP in terms of being organized into ESFs, while local governments have developed response plans that address more localized risks. 21 More specifically, many hospitals have adopted the Hospital Emergency Incident Command System (HEICS). 22 This system was developed by emergency medical services personnel in California in the early 1990's, and since then, hospitals across the country have adopted some version of the HEICS format. HEICS essentially divides emergency response duties into a hierarchical structure. For instance, atop the hierarchy is the incident commander, and reporting thereto are officers of information, finance, and security. Revisions to HEICS began prior to Katrina, and on September 28, 2006, a new version was presented to the California Emergency Medical Services Authority for approval. 23 This latest edition of HEICS is currently available for review. 24


During an emergency, there is significant legal authority for local and federal governments to take whatever action necessary to reduce threats to public safety. However, once the disaster subsides, attention often turns to liability, the protection of individual rights, and determining what steps must be taken to improve response capabilities. As the above discussion illustrates, disaster preparedness is a complex area of the law due to the interplay of the various governmental agencies and regulations. In light of the many lessons learned from Katrina, hospitals will face continuing challenges in preparing for future disasters. State and federal governments will continue to review and revise requirements, and new regulations will be adopted. As JCAHO's recent Sentinel Event alert reveals, the issue of back up electrical power has received considerable attention. Since lack of communication capabilities was also a major obstacle during Katrina, we are likely to see more uniform and standardized measures adopted with respect to communications equipment and procedures. Hospitals are a key component of any disaster response. As new threats continue to arise, especially in light of recent hurricanes and risk of a flu pandemic, regular review of disaster planning regulations and guidance remains essential.

1 www.nola.com
2 Id.
3 Emergency Facilities Assessment, The Adams Group, 2005.
4 See Louisiana Revised Statutes § 9335.
5 After life care requirements delineate procedures for identification of deceased individuals, safeguarding personal effects, and infection control. See Louisiana Revised Statutes § 9329.
6 See JCAHO EC 4.10.
7 See JCAHO EC 4.20, 7.20.
8 See JCAHO EC 4.110.
9 See JCAHO, Sentinel Event Alert, Issue 37, September 6, 2006.
10 See U.S. Department of Labor, OSHA Standard 3152, Hospitals and Community Emergency Response (1997).
11 See 42 U.S.C. § 1395dd.
12 See 45 C.F.R. § 164.510-522.
13 See 42 U.S.C. § 1320b-5(b)(3).
14 See Ala. Code § 6-5-332.
15 See Tex. Civ. P. & R. Code § 74.153.
16 Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121, et seq.
17 See National Response Plan, Department of Homeland Security, issued December 2004.
18 Id.
19 See Notice of Change to the National Response Plan, May 25, 2006, Version 5.0.
20 See National Disaster Medical System, available at www.oep-ndms.dhhs.gov/index.html.
21 See Louisiana Emergency Operations Plan, available at www.ohsep.louisiana.gov/plans/eopindex.htm; Ohio Emergency Operations Plan, available at www.ema.ohio.gov/ema.asp; Colorado Emergency Operations Plan, available at www.dola.state.co.us/oem/oemindex.htm.
22 See The Hospital Emergency Incident Command System, Third Edition, Vol. 1 (1998).
23 See California Emergency Medical Services Authority, HEICS Update, October 5, 2006, available at www.emsa.ca.gov.
24 See California Emergency Medical Services Authority, Hospital Incident Command System, available at www.emsa.ca.gov/hics/hics.asp.