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Reopening Shuttered Hospitals to Expand Surge Capacity

Public Health Emergency Preparedness

This resource was part of AHRQ's Public Health Emergency Preparedness program, which was discontinued on June 30, 2011, in a realignment of Federal efforts.

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Appendix D. Legal & Regulatory Issues (continued)

Chapter 4. Other Issues122

This section of the report explores additional issues that planners may need to consider as they prepare to reopen a shuttered hospital for surge capacity purposes.  The entity that will be responsible for the facility, the role of Federal and State health officials, liability, cross-State licensure, and other issues could pose barriers and need to be addressed in advance of an emergency.

4.1 Responsibility for a Surge Hospital

Private Health-care Manager, Hospital or Health-care System. A private health-care manager, hospital or system, acting in concert with a State government to implement part of the State's emergency plan, could be authorized to open a surge hospital. The private operator or overseeing hospital would arrange in advance to lease a shuttered facility, arrange for any necessary renovations, arrange to lease or purchase equipment, and arrange for staffing. The securing of necessary waivers of State regulatory standards would be negotiated in advance. The State government would inform the private entity that surge capacity was needed and the private entity would move to open the surge facility. Although it is possible for a private entity to undertake these measures successfully, the amount of work involved is considerable and securing the necessary cooperation with State officials may be difficult. 

Federal Government. Any branch or agency of the Federal Government that controls a shuttered hospital, such as the Veteran's Administration, may be able to open a surge facility. Approval within the specific Federal agency (as well as any other Federal agency approvals that are required) would be secured in advance. Although the Federal agency would cooperate with the local State government, the Federal agency would be able to set up and run the surge facility with a minimum of interference from the State. State regulations governing licensure, plan approval for renovations, staffing requirements, and so forth would not apply to a Federal facility. The State would identify the need for additional hospital beds, and the Federal agency would open the surge facility to meet that need. It should be noted a Federal agency would lack flexibility in determining the location of a surge hospital as the location would depend entirely on the availability of a shuttered Federal hospital suitable for conversation and reopening. For example, no shuttered Veteran's Administration Hospital was available in eastern Massachusetts, in such a state that it could be reasonable reopened as a surge facility. Also, the Federal bureaucracy may not be nimble enough to respond as quickly as necessary to issues that arise during the 3-7 days of preparation for opening of a surge facility.

State Government. State government offers several advantages over a private entity or Federal agency in having authority to open a surge hospital. The primary advantage is that the governor in most States has general authority to declare a state of emergency.  In Massachusetts, for example, the governor has authority to declare a public health emergency, authorizing the Commissioner of Public Health to "take such action and incur such liabilities as he may deem necessary to assure the maintenance of public health and prevention of disease."123 Under this authority, a shuttered hospital could be taken by eminent domain (on a temporary or permanent basis) and opened by the Massachusetts Department of Public Health as a surge facility. Alternatively, this authority could be used to take and open a shuttered hospital, which would then be overseen by a private health-care entity, as discussed above.

4.2 Operation and Control of a Surge Facility

Private Health-care Manager, Hospital or Health-care System. A private health-care manager, hospital or system could operate a surge hospital through two different mechanisms. The first would be that the private entity is authorized, in cooperation with the State, to open the surge hospital. The private entity would then also be responsible for operating the facility and would be vested with legal control. The second would be that the private entity contracts with a government authority to operate the surge hospital. A Federal agency or, more likely, a State agency, would take steps to open the facility and then enter into a management contract with the private entity delegating operational and managerial authority to the private entity. Legal control, however, would continue to rest with the Federal or State agency, as the case may be, that contracted with the private entity. Unresolved issues of liability may, however, limit the interest of a private entity in contracting to operate a surge hospital.

Federal Government. If a Federal agency opens a surge facility, it has the option of hiring a private entity to manage the facility or to set up the surge hospital and manage hospital operations on its own. Issues that may affect the agency's choice include whether the agency has authority to hire the employees necessary to operate a new hospital, including union issues that may affect hiring of new employees, and whether the agency is lawfully able to delegate authority and enter into facility management agreements. The Federal agency may also decide to operate the surge hospital if it already has access to appropriate staff and equipment because of other hospital operations it maintains in the area.

State Government. As with the Federal government, a State government would have the option of managing the surge facility on its own or contracting for management. A State government is unlikely to have a pool of qualified employees to draw upon to staff the surge facility. The process of hiring health-care workers as State employees or obtaining authorization to acquire necessary equipment may well exceed the 3 to 7 day time frame for the surge hospital to be up and operating. Entering into a management contract would pass responsibility for these areas on to a private entity capable of acting with greater speed and flexibility to address operational issues. However, even with a contracted manager, the State would retain ultimate legal authority for control of the surge facility.

4.3 Liability

Background. In the event a surge hospital is brought on line during a public health emergency, medical care in the surge facility will be provided under difficult and often sub-standard conditions. The hospital will have been converted to use after having been shuttered for a period of time, equipment will be moved in that may prove inadequate for certain care, and medical personnel will be functioning without many of the support systems that are taken for granted in a modern hospital today. The early stages of operation may prove to be chaotic as systems are set up even while patients are admitted. In addition, many licensing requirements for the hospital will be waived in the emergent circumstances of its creation. The result will be that health-care providers will be functioning in less than optimal circumstances and the facility itself will likely be substandard in some respects. Mistakes will be made and, in some instances, patients will suffer the consequences of those errors. Once the public health crisis has passed and the surge facility has been closed, lawsuits may be anticipated as former patients or their surviving relatives seek compensation for injuries incurred.

Health-care Providers. Current Massachusetts State laws would provide little or no protection from liability for health-care providers who responded to an emergency and performed services in a surge facility.124  New statutory provisions should be proposed that offer immunity to all persons who render assistance or advice during a declared emergency with the exception of willful, wanton or reckless misconduct. Texas has strengthened its laws protecting physicians from medical liability during a catastrophic incident. For example, Texas has moved its Good Samaritan Law provisions to the emergency care section of its civil code to include provisions protecting hospital emergency room physicians and admitting physicians at hospitals and to include events in which a physician is not covered by medical liability insurance.125

4.4 Medical Personnel-Crossing State Lines

Emergency Management Assistance Compact. Every State except California and Hawaii participates in the Emergency Management Assistance Pact (EMAC). EMAC is a mutual aid compact between the 48 participating States requiring member States to provide assistance to other member States in the event of an emergency. EMAC grew out of an aid compact between several southern States after Hurricane Andrew, which devastated parts of Florida. Membership growth accelerated following September 11, 2001. EMAC member States generally treat any license, certificate or other permit held by a person in a participating State to be the deemed equivalent of licensure in any other participating State that requests assistance under the compact during a declared emergency or disaster. In practice, however, States have sent only government employees when requested to provide aid, so the issue of cross-State licensure has not yet been confronted in a real-life situation.126 Nonetheless, the EMAC enabling statute127 (which each participating State must adopt) does provide a possible legal framework for a broader deemed licensing program.

Emergency System for Advanced Registration of Volunteer Health-care Professionals.  The Health Resources and Services Administration has initiated a pilot project that has a goal of establishing a national computer database of volunteer health-care providers. As envisioned, the computer database will consist of a list of volunteer health-care professionals128 whose credentials have been reviewed and verified. Ten States, including Connecticut and Massachusetts in New England, are participating in the pilot. Once the system is fully established, a State that declares an emergency or experiences a disaster will be able to identify and request specific types of health-care professionals from the list of registrants. When fully implemented, any person approved for registration on the list will be able to go anywhere in the country to render assistance.  However, as the list is being developed, questions are arising about personal liability of the registrants, and workers compensation in the event a registrant is injured while providing assistance. Although these and other issues remain to be resolved, this registration system holds great promise for the future.

4.5 Physician Back-up by Other Health-care Providers

Massachusetts, as part of its emergency planning, is investigating the possibility of expanding the traditional roles of certain health-care providers should an emergency occur that overwhelms the health-care system, resulting in a shortage of physicians. Massachusetts is considering expanded roles for dentists, pharmacists and other health-care providers during a health emergency. Issues to consider are defining carefully the expanded role, circumstances under which the expanded role would be triggered, and the opposition that any similar proposal may arouse, particularly among physicians.

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