Advance Disaster Directives for Hospitals

Mass casualty disasters can take various forms: hurricanes, floods, ice storms, tornados, plane or bus crashes, and today, even terrorist attacks. And hospitals and other health-care entities are on the front lines.They do an incredible job preparing for such disasters; most conduct full-blown drills on a regular basis. But with so much to consider, it is easy to overlook seemingly small details that can pose critical problems during and after the disaster.

That's where in-house counsel at hospitals and health-care entities, especially those who are part of a risk management department, come in. In-housers can help their clients avoid practical and legal headaches by ensuring that appropriate personnel, supplies, equipment and other resources are ready to care for an influx of patients. With thorough preparation, counsel also can avert legal problems such as employees' wage-and-hour claims, negligence or wage claims by employees' family members, and patient medical-malpractice claims.

Preparing for the Worst

The most important part of dealing with any disaster is to prepare in advance. Fatigue, stress and the general mayhem that accompany such situations do not foster effective decision-making. Thus, written procedures, communication frameworks, contingency plans and policies can save valuable time and avoid costly mistakes. Accrediting bodies impose preparedness requirements that hospitals must tailor to their circumstances. Failure to meet these requirements could result in legal claims and jeopardize an organization's ability to participate in managed-care plans and/or Medicare.

However, having a disaster plan is not enough; it must remain current, and team members must understand it. This is critical for large facilities that coordinate activities among many different areas and small facilities where fewer resources are available.

For more predictable disasters such as hurricanes, hospitals generally phase in their preparations. At designated times, they may cancel elective medical procedures, transfer patients to another location, coordinate when essential personnel must be on-site and estimate how long personnel should stay. This underscores the importance of establishing a command post early that can oversee and coordinate all activities. If legal claims arise later, these decisions will be subject to close scrutiny. For example, a patient may assert that a premature or improperly executed transfer harmed him. On the other hand, he could allege that he would not have suffered harm if the hospital had evacuated him sooner. In either case, the hospital will benefit from showing that it carefully followed well-established protocols.

The facility must also confirm arrangements for critical services and resources. Needs may include boats or large trucks for dealing with high water; supplies of potable water; and securing back-up communications systems, such as radios and/or satellite telephones. Back-up generators must be ready, and the hospital should ensure the security of its patient, business and financial records. These arrangements can be made in advance and confirmed as the need arises. In-house counsel should ensure that such contracts explicitly address the provision of services during disasters, including possible modification of typical force majeure provisions.

Staffing and Care Issues

Designating “essential personnel” to be on-site requires careful consideration and must be completed in advance. During a disaster, however, more is not necessarily better. A facility may be isolated for a period after the disaster, so it must take into account that each “essential” person will need food, water, a place to sleep and sanitary facilities. If power and plumbing are unavailable, having more than the minimum number of necessary people on-site can exacerbate the disaster.

This issue becomes more challenging if essential personnel need to bring family members on-site with them. When key clinical workers are single parents, the hospital may have to consider providing child-care services. Similar concerns could arise for those who are responsible for care of other family members, such as elderly parents. In these cases, in-house counsel must evaluate the risks of accepting such responsibilities. Among other things, they must consider the availability of qualified caregivers, potential licensure issues, and how to obtain the necessary consents and waivers.

How will evacuations of the public at large affect staffing needs during a disaster? In Texas, for example, the law prohibits employers from terminating or otherwise discriminating against employees who leave work to participate in a general public evacuation order. Counsel can address these concerns most effectively by having the facility establish appropriate policies in advance, keeping in mind that a roster of essential personnel will include more than doctors and nurses. For example, a hospital will need housekeeping, food service and other support services.

In-house counsel can help the facility avoid problems by ensuring that key personnel know and acknowledge up front that they may have to be at work during a disaster. Such an acknowledgment should be in writing. As a practical matter, these acknowledgments must remain current, so they should be reviewed during annual performance evaluations or ' where there are predictable emergency events ' at the beginning of each hurricane or blizzard season.

If not addressed in advance, more potential legal issues could go unnoticed during a disaster. One vital challenge is to record accurately all time that employees work. Whether or not its usual time-keeping system is operational, the employer is responsible for obtaining and maintaining these records. Failure to do this could result in liabilities of hundreds of thousands of dollars or more.

In-house counsel can provide invaluable assistance by developing policies that clearly describe where employees should stay while not on duty; how they will be compensated during the disaster; and how employees should report all time worked. Counsel also should develop an acknowledgment form for family members to sign, making clear that they are visitors, not employees, who have requested temporary emergency accommodations. The hospital's policy should further address what functions visitors may and may not perform, keeping in mind that such assistance often has proven invaluable during past disasters. These policies can help avoid marginal claims for wages and/or injuries.

After the disaster, more unique concerns may exist. No matter what damage it sustains, a hospital cannot ignore Occupational Health and Safety Administration standards. Among other things, it must provide a safe workplace. Tetanus and other inoculations may be necessary, and the facility must be prepared to address all workplace safety concerns. Workers also will be anxious to check on their loved ones and their property.

Conclusion

In-house counsel thus can help the hospital develop policies to prioritize and address potential safety hazards; provide for relief employees to reach the facility; and for relieved employees to reach their homes and stay in touch after the initial disaster. All of these steps will help the facility ensure that it continues to provide appropriate standards of care and minimize legal claims that might otherwise arise from a disaster.

Despite the challenges, in-house counsel who help their hospitals plan effectively will be in a much better position to deal with disasters. More importantly, their hospitals will be better prepared to avoid unnecessary problems and resume normal operations after the storm has passed.

A. Kevin Troutman is a partner in Fisher & Phillips in Houston. Before practicing law, Troutman was a health-care human resources executive for 17 years, including a period when he was responsible for 22 hospitals in five states. This is a modified version of an article published in The Texas Lawyer, an ALM sister publication of this newsletter.

Mass casualty disasters can take various forms: hurricanes, floods, ice storms, tornados, plane or bus crashes, and today, even terrorist attacks. And hospitals and other health-care entities are on the front lines.They do an incredible job preparing for such disasters; most conduct full-blown drills on a regular basis. But with so much to consider, it is easy to overlook seemingly small details that can pose critical problems during and after the disaster.

That's where in-house counsel at hospitals and health-care entities, especially those who are part of a risk management department, come in. In-housers can help their clients avoid practical and legal headaches by ensuring that appropriate personnel, supplies, equipment and other resources are ready to care for an influx of patients. With thorough preparation, counsel also can avert legal problems such as employees' wage-and-hour claims, negligence or wage claims by employees' family members, and patient medical-malpractice claims.

Preparing for the Worst

The most important part of dealing with any disaster is to prepare in advance. Fatigue, stress and the general mayhem that accompany such situations do not foster effective decision-making. Thus, written procedures, communication frameworks, contingency plans and policies can save valuable time and avoid costly mistakes. Accrediting bodies impose preparedness requirements that hospitals must tailor to their circumstances. Failure to meet these requirements could result in legal claims and jeopardize an organization's ability to participate in managed-care plans and/or Medicare.

However, having a disaster plan is not enough; it must remain current, and team members must understand it. This is critical for large facilities that coordinate activities among many different areas and small facilities where fewer resources are available.

For more predictable disasters such as hurricanes, hospitals generally phase in their preparations. At designated times, they may cancel elective medical procedures, transfer patients to another location, coordinate when essential personnel must be on-site and estimate how long personnel should stay. This underscores the importance of establishing a command post early that can oversee and coordinate all activities. If legal claims arise later, these decisions will be subject to close scrutiny. For example, a patient may assert that a premature or improperly executed transfer harmed him. On the other hand, he could allege that he would not have suffered harm if the hospital had evacuated him sooner. In either case, the hospital will benefit from showing that it carefully followed well-established protocols.

The facility must also confirm arrangements for critical services and resources. Needs may include boats or large trucks for dealing with high water; supplies of potable water; and securing back-up communications systems, such as radios and/or satellite telephones. Back-up generators must be ready, and the hospital should ensure the security of its patient, business and financial records. These arrangements can be made in advance and confirmed as the need arises. In-house counsel should ensure that such contracts explicitly address the provision of services during disasters, including possible modification of typical force majeure provisions.

Staffing and Care Issues

Designating “essential personnel” to be on-site requires careful consideration and must be completed in advance. During a disaster, however, more is not necessarily better. A facility may be isolated for a period after the disaster, so it must take into account that each “essential” person will need food, water, a place to sleep and sanitary facilities. If power and plumbing are unavailable, having more than the minimum number of necessary people on-site can exacerbate the disaster.

This issue becomes more challenging if essential personnel need to bring family members on-site with them. When key clinical workers are single parents, the hospital may have to consider providing child-care services. Similar concerns could arise for those who are responsible for care of other family members, such as elderly parents. In these cases, in-house counsel must evaluate the risks of accepting such responsibilities. Among other things, they must consider the availability of qualified caregivers, potential licensure issues, and how to obtain the necessary consents and waivers.

How will evacuations of the public at large affect staffing needs during a disaster? In Texas, for example, the law prohibits employers from terminating or otherwise discriminating against employees who leave work to participate in a general public evacuation order. Counsel can address these concerns most effectively by having the facility establish appropriate policies in advance, keeping in mind that a roster of essential personnel will include more than doctors and nurses. For example, a hospital will need housekeeping, food service and other support services.

In-house counsel can help the facility avoid problems by ensuring that key personnel know and acknowledge up front that they may have to be at work during a disaster. Such an acknowledgment should be in writing. As a practical matter, these acknowledgments must remain current, so they should be reviewed during annual performance evaluations or ' where there are predictable emergency events ' at the beginning of each hurricane or blizzard season.

If not addressed in advance, more potential legal issues could go unnoticed during a disaster. One vital challenge is to record accurately all time that employees work. Whether or not its usual time-keeping system is operational, the employer is responsible for obtaining and maintaining these records. Failure to do this could result in liabilities of hundreds of thousands of dollars or more.

In-house counsel can provide invaluable assistance by developing policies that clearly describe where employees should stay while not on duty; how they will be compensated during the disaster; and how employees should report all time worked. Counsel also should develop an acknowledgment form for family members to sign, making clear that they are visitors, not employees, who have requested temporary emergency accommodations. The hospital's policy should further address what functions visitors may and may not perform, keeping in mind that such assistance often has proven invaluable during past disasters. These policies can help avoid marginal claims for wages and/or injuries.

After the disaster, more unique concerns may exist. No matter what damage it sustains, a hospital cannot ignore Occupational Health and Safety Administration standards. Among other things, it must provide a safe workplace. Tetanus and other inoculations may be necessary, and the facility must be prepared to address all workplace safety concerns. Workers also will be anxious to check on their loved ones and their property.

Conclusion

In-house counsel thus can help the hospital develop policies to prioritize and address potential safety hazards; provide for relief employees to reach the facility; and for relieved employees to reach their homes and stay in touch after the initial disaster. All of these steps will help the facility ensure that it continues to provide appropriate standards of care and minimize legal claims that might otherwise arise from a disaster.

Despite the challenges, in-house counsel who help their hospitals plan effectively will be in a much better position to deal with disasters. More importantly, their hospitals will be better prepared to avoid unnecessary problems and resume normal operations after the storm has passed.

A. Kevin Troutman is a partner in Fisher & Phillips in Houston. Before practicing law, Troutman was a health-care human resources executive for 17 years, including a period when he was responsible for 22 hospitals in five states. This is a modified version of an article published in The Texas Lawyer, an ALM sister publication of this newsletter.