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					Vermont House Committee on Government Operations, House Bill 866: An Act Relating to
     Granting Reciprocity from Licensing Requirements to Emergency Volunteers.
                                   March 19, 2008

                                  Jackson R. Schonberg, Ed.D.
                                      Hartland, Vermont

Chairperson Sweaney, members of the Committee, Good Morning.

My name is Dr. Jack Schonberg and I thank you for permitting me to testify before you this
morning on what I consider to be a crucial piece of legislation. I approached Representatives
Steven Adams of Hartland and Mary Morrissey of Bennington for help in raising The Uniform
Emergency Volunteer Health Practitioners Act, often referred to as the UEVHPA. They graciously
agreed and H.866 was the result. I come before you today to explain why this Act is important and
why it should be granted ALong Form@ status and thus be in a position for final enactment this
Session.

I am here representing three independent Disaster Relief organizations. I am the Disaster
Response Network Coordinator (DRN) for the Vermont Psychological Association, a member of
the Vermont State Disaster Animal Response (Planning) Team (VDART) and the American Red
Cross. I am the Chair of the Chapter Board of Directors, Co-Chair of Chapter Disaster Services
and Chapter Mental Health Lead of the Central Vermont - New Hampshire Valley Chapter, ARC.
Please note that my Red Cross Chapter is Bi-State, as is the Upper Valley Disaster Animal
Response Team (UVDART) I am facilitating the development of as a Partner Agency to my
Chapter.

I have personally responded, through the auspices of the American Red Cross, to National
Disasters such as 9/11 in New York City, the Four Hurricanes of 2004 in Florida and in 2005 to
Hurricane Rita as Headquarters Manager of Disaster Mental Health for Texas. I also am a Disaster
Action Team (DAT) responder for local events in our Chapter. Therein lies my special interest in
this Act. Last year alone, almost 1 million Red Cross volunteers responded to more than 75,000
disasters around the country, whether the disaster was a single house fire, a flooded region, or a
devastating tornado or ice storm. Since my Chapter is a Bi-State Chapter, our DAT members
respond across state lines on a regular basis. This is consistent with practice of First Responders
along the Vermont / New Hampshire Border for which it is common to find Fire, EMS and
sometimes Police from both sides of the river at an event. I presented this issue to my Disaster
Response Network colleagues (licensed psychologists who provide Disaster Mental Health
Services pro bono through the ARC and other relief organizations) at the APA State Leadership
Conference in Washington, DC last week and found that this issue is true along the borders of
many states, whether or not the Chapters are bi-state.

The problem is simple. The solution far more complex.

For those responders in the ARC and DART teams who hold professional licenses: Mental
Health Practitioners, Nurses, Veterinarians and the like, there is no readily available system to
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 create temporary reciprocity to serve in another state. The Good Samaritan laws were not
 designed for planned responses and agencies, but rather for happenstance events which one
 encounters unexpectedly. New Hampshire does have a Statute, Chapter § 330-A:34 Mental
 Health Practice, II which provides that, “Persons Exempted.- ‘This chapter shall not be construed
 to prevent or restrict the mental health practice activities of individuals who volunteer their
 services to non-profit charitable organizations and receive no remuneration for their services.’.@
 Thus as a licensed psychologist, I can respond under my Red Cross affiliation to an event in New
 Hampshire but, our Disaster Mental Health personnel licensed in New Hampshire technically
 cannot respond in Vermont. There is no similar provision for other healthcare personnel, whether
 they be nurses, physicians or veterinarians. Furthermore, neither Vermont nor New Hampshire
 belong to the Interstate Nursing Compact which authorizes practice by certain nurses in multiple
 jurisdictions.

Why is this important? To quote from the Emergency System for Advance Registration of
Volunteer Health Professionals (ESAR-VHP) Legal and Regulatory Issues Report of May 2006,
page 30: AGenerally, the state licensure board is responsible for enforcing prohibitions against
unauthorized practice by unlicensed health professionals. When criminalized, (emphasis added)
the unlicensed practice of medicine or any other healing art is usually considered a strict liability
crime, that is, there may not be the need to demonstrate criminal intent to find a violation. Thus
the mere engagement in practice without a license would be criminal regardless of the intent or
justification.@

There are also the issues of civil liability (practice without a license may invalidate personal
professional liability insurance), that put the responder=s license at risk, create legal liability for
the host agency under the doctrine of ostensible agency and create significant questions regarding
who, if anyone, is responsible for providing assistance if the responder is injured during relief
activities.

Why was the UEVHPA Proposed? As explained by the Chair of the Drafting Committee for the
Uniform Emergency Volunteer Health Practitioners Act of the Uniform Law Commission at a
presentation to the National Association of Boards of Pharmacy Fall 2007 Legislative
Conference, September 17, 2007, Arlington, Virginia:

$ While all states have enacted the EMAC which provides for interstate licensing recognition,
civil liability protection and workers= compensation coverage, the Compact only applies
primarily to state employees and local employees incorporated into state forces by mutual aid
agreements.
$ No mechanism exists to generally authorize the deployment of private sector volunteers
pursuant to EMAC.
$ Disaster relief in the U.S. relies extensively on the work of NGOs not formally incorporated
into Astate forces@ under the EMAC.
$ Future disasters may require additional surge capacity.
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Why is Uniformity Needed?
$ Because VHPs (Volunteer Health Practitioners) are deployed by source agencies in multiple
states to a host state in which a disaster occurs, it is neither feasible nor practical to expect source
agencies in every state to be aware of and familiar with specialized licensing and certification
requirements of each host jurisdiction.
$ Rapid and efficient response efforts demand a simple, well-understood and automatically
implemented system for the recognition of VHPs.

The National Conference of Commissioners on Uniform State Laws (NCCUSL), often referred to
as the Uniform Law Commission, has membership from all 50 States and was created in 1892 to
address such legislation: That is, those laws which cannot be enacted on a Federal level, as this
one cannot, since professional licensing is a APolice Power@ which is left to the States by the
United States Constitution. A common example of the principle would be the reciprocity of your
driver’s licenses. Your home state license is recognized in all states.

To address these concerns the UEVHPA was developed. NCCUSL created a Drafting
Committee, Chaired by Raymond P. Pepe, Esq., which, incidentally, included a representative
from Vermont, Theodore C. Kramer Esq., of Brattleboro. The first draft of the Model Act was
approved in 2006 and modified with additions pertaining to Civil Liability and Workers
Compensation in the latter portion of 2007. It is clear from the prefatory notes and commentary
which accompany the Act, that lessons learned from the trials and tribulations encountered in
responding to the Hurricanes Katrina-Rita-Wilma in 2005 clearly demonstrated the need to
address these issues. Subsequent to becoming AApproved and Recommended for Enactment in all
the States@ by the NCCUSL, in 2007, the Act has received endorsement from the American Bar
Association and a wide range of professional organizations.

To date, the Act has been adopted in:

        Colorado
        Kentucky
        New Mexico
        Tennessee

and during 2008 introduced in: Hawaii, Indiana, Maryland, Minnesota, Mississippi, New Mexico,
Oklahoma, Pennsylvania, Utah and Vermont. Further introductions are also anticipated in the near
future.

Now to some technical details. Note: Since I am not an attorney, I have relied heavily on
publications of the Act=s creators and others.

Some Key Provisions of the Act taken from: Raymond P. Pepe, Esq. Presentation to the
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National Association of Boards of Pharmacy Fall 2007 Legislative Conference, September 17,
2007, Arlington, Virginia:

$ Recognizes out-of-state licenses of registered VHPs during declared emergencies.
$ Authorizes host states to rely on systems of VHP registration in source states during declared
      emergencies.
$ Recognizes multiple types of VHP registration systems to ensure flexibility and redundancy.
$ Creates minimum statutory requirements for recognition and use of registration systems.
$ Requires VHPs to work through host entities in coordination with emergency management
       agencies
$ Authorizes host states and host entities to regulate, control and limit activities of VHPs
$ Defines permissible scope-of-practice for VHPs
$ Vests disciplinary jurisdiction in both host and source state licensing boards
$ Requires host state boards to report disciplinary actions to source state boards
$ Authorizes modifications and expansion of scope of practice as needed in emergencies
$ Recognizes exigent circumstances defense in disciplinary proceedings
$ Provides two alternative provisions clarifying the scope of civil liability of volunteers and
      entities using volunteers

$ Provides immunity from civil liability for the good faith operation and use of registration
      systems
$ Requires host states to provide workers= compensation for VHPs without access to other
      sources of coverage
$ While an emergency declaration is in effect, a volunteer health practitioner, registered with a
      registration system that complies with Section 5 and licensed and in good standing in the
      state upon which the practitioner=s registration is based, may practice in this state to the
      extent authorized by this Act as if the practitioner were licensed in this state.

Registration Systems:
$ ESAR-VHP (Emergency Systems for the Advance Registration Systems of Volunteer Health
        Professionals) or MRCs (Medical Response Corps)
$ Disaster Relief Organizations (Such as the American Red Cross Disaster Service Human
        Resource System (DSHR)
$ Licensing Boards
$ National or Regional Association=s of Licensing Boards or Health Practitioners
$ Comprehensive Health Care Facilities
$ Government Entities
$ Other Sponsors Designated by States
$ Act applies to VHPs registered with a registration system that complies with required
       standards and who provide services for a host entity while an emergency declaration is in
       effect.
$ Host entities must consult and coordinate with state emergency management agencies Ato the
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       extent practicable to provide for the efficient and effective use@ of VHPs and comply with
       state emergency management and healthcare laws.

AHost entity@ means an entity operating in this state which uses volunteer health practitioners to
       respond to an emergency. ' 2(9)

The question of how the UEVHPA relates to the Emergency Management Assistance Compact
(EMAC) has frequently been asked. The following is quoted, with permission of Attorney Pepe
and the Uniform Law Commission, as a partial answer. I have attached his entire testimony before
the Maryland Legislature presented last month as it provides many technical answers about the
Act.

AThe Emergency Management Assistance Compact (AEMAC@) recognizes the need for states to
utilize personnel and resources provided from other states to respond to emergencies. Among its
other provisions, EMAC provides that (1) health care practitioners deployed from one state to
another in response to an emergency will have their professional licenses recognized outside of
the jurisdiction in which they are licensed; (2) emergency response workers deployed to respond
to emergencies, including health care practitioners, will be afforded protection for civil liability
for alleged acts of negligence; and (3) all emergency response workers will be [sic] enjoy the
benefits of workers= compensation.

As valuable as EMAC has proven to be, unfortunately its application is limited only to Astate
forces,@ i.e., state government employees deployed from one state to another and in some
jurisdictions local government employees incorporated into Astate forces@ pursuant to mutual aid
agreements. Although efforts have been made by a small number of jurisdictions to also
incorporate volunteers associated with non-governmental organizations into state forces, the legal
rationale for these efforts is problematic and the approach has proven to be inadequate and
excessively cumbersome to reach the vast majority of non-governmental disaster volunteers.@

Some differences between the EMAC and UEVHPA according to my analysis:
EMAC
- Usually pertains to high level events and is frequently invoked following major disasters. It is
        rarely invoked for low level events.
- Governor must make a formal declaration in accord with state procedures.
- State Employee focused. (A number of states incorporate local government employees into
        EMVC response forces and some states incorporate non-governmental volunteers)
- All or nothing license waiver.
- No provision for oversight of professionals or limits of practice included unless specifically
        formulated by States.
UEVHPA
- May apply to multiple levels of emergencies, not just the very large events.
- Multi emergency management authorities may be authorized to invoke.
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- Volunteers included in addition to State Employees.
- "Volunteers" defined to include those paid outside of their regular employment responsibilities
         as well as traditional unpaid.
- Host States retain control: Scope of Practice - a form of privileging. (Normally not authorized
        to do what not permitted to do in home state.)
- Professionals pre-register through use of ESAR-VHP, ARC-DSHR, State associations, etc.
- Addresses liability: professional, tort and sponsoring agency (ostensible). (So does EMAC,
        But not for non-governmental organizations.)
- State may provide Workers Compensation for responders functioning under Act.
- Provision for oversight and discipline of professionals by respective licensing boards with
         reporting to home states.
- Does not excuse gross negligence or criminal acts.
- Reciprocity time limited by event.

- All medical professions included: MD/RN, Mental Health, Veterinary, Pharmacy, Mortuary,
        etc.
- Promotes advance planning, especially through use of pre registration of licensed professionals.
- Permits and promotes MOU's.
- Addresses many problems that were experienced with EMAC during early Katrina responses.
- Fits National Response Framework (NRF) concept of "Layering": local, county/region, state,
        multi-state, federal
- There are no doubt others.

My analysis of the UEVHPA also suggests that there still is the problem of Red Cross and DART
activities that do not rise to the level of a ADeclared Disaster.@ In attempting to resolve this issue,
which applies to the majority of local responses such as: home and apartment fires, shelter
activities, service centers and aid stations. Frequently, these are activities which include Disaster
Mental Health personnel and Health Services (Nurses).

I began working on this issue about four years ago. In my discussions with Barbara Farr, Director
of Vermont Emergency Management, we tried a number of Aadministrative remedies@ which,
unfortunately could not be used. It always came back to the need for a legislative solution and
authorities.

I presented my concern and proposed resolution directly to Attorney Pepe, Chair of the Drafting
Committee. His initial reply to my inquiry was: AYou've made an interesting suggestion that did
not arise directly during the Drafting Committee deliberations.@ He copied his more detailed
response to a number of the NCCUSL advisors.

In a follow up communication to me on March 12, 2008, Chair Pepe indicated: A...with respect to
local emergency declarations, except to observe that some jurisdictions do provide for local
declarations that could trigger the provisions of the UEVHPA if appropriately cross-referenced in
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the UEVHPA. If there is not an existing Vermont law providing for local emergency declarations,
and you would like the UEVHPA to be applied to some local emergencies requiring interstate
assistance, I'd recommend adding language to the Vermont version of the legislation allowing this
to occur. The key is to determine (1) the specific local officials or agencies to which you wish to
provide this authority; (2) the types of local political jurisdictions in which the designations
should take effect; and (3) the impact of designations and decisions made at the state level on
local determinations. Once you decide how to address these issues, drafting a provision allowing
for local emergency designations purposes of triggering the application of the UEVHPA should
not be difficult.@ He also made suggestions for Uniform Law Commission resources to assist.

I have also been working directly with the National American Red Cross leadership in
Washington. I have been authorized to represent the official position on the UEVHPA for the
American Red Cross as:

       The American Red Cross strongly supports Vermont H.868 the Uniform Emergency
       Volunteer Health Practitioners Act. The American Red Cross wants to ensure that during
       times of disaster, natural or manmade, we will be able to supply an adequate and effective
       force of health care volunteers.

       Last year alone, almost 1 million Red Cross volunteers responded to more than 75,000
       disasters around the country, whether the disaster was a single house fire, a flooded region, or
       a devastating tornado or ice storm. Red Cross would not be able to respond in communities
       every day across the country if it were not for our over one million Red Cross trained
       volunteers nationwide.

       The American Red Cross strongly supports the liability and Worker’s Comp provision
       included in the bill. In order to ensure there will be the number and quality of volunteers of
       trained Red Cross volunteers available to respond to these disasters – we need to take steps
       now to provide the most comprehensive protection for these volunteers and their families in
       areas like injury and death benefits, medical and mental health care and liability protection.

       The American Red Cross believes without liability protection and some provision for death
       and illness benefits for volunteers – there may not be enough health care volunteers to respond
       to the next catastrophic event.

   In addition to working with our Department of Emergency Management as referenced above,
   on February 20, 2008, I made a brief orientation presentation to our State Emergency
   Response Commission (SERC) which appeared receptive to the solution offered by UEVHPA.
    By chance, there was another presentation at the meeting on addressing Surge Capacity in our
   hospitals. It was clear that UEVHPA would assist meeting this need by permitting
   appropriately licensed personnel from other states to help augment our medical resources. This
   point was reiterated at my similar LEPC presentation the same evening by the Emergency
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Room Nurse Director present from a Vermont hospital on the New Hampshire border.

Therefore, I urge you to endorse the Bill by voting to move it to Long Form Status and
incorporating the language of the UEVHPA. Please remember that the Model Act provides
language which is fully prepared with the exception of a few choices to be made as it applies
in Vermont. As mentioned, I can assist with resources offered by the NCCUSL and look
forward to working with the Legislative Council=s office to address the resolution to inter-
state licensing as applied to lower level events. I plan to continue working with VEM, it=s
Director, Planning Deputy and Legal Counsel.

Thank you very much for this opportunity to explain the UEVHPA and why it is important to
pass it. Should the Act move forward, I have been in contact with, either directly or through
intermediaries, a number of affected professional associations whom I believe will testify to
their support of the Bill at follow-up hearings on the full Act.

I would be pleased to answer any questions you may have to the extent of my knowledge.

Respectfully Presented,
Jackson R. Schonberg, Ed.D.
Licensed Psychologist - Doctorate, Vermont

				
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