Testimony in Support of H.108 and S.18 "Act Act Relative to Pandemic and Disaster Preparation and Response in the Commonwealth"

Before the Committee on Health Care Financing

March 26, 2009

Good afternoon, Mr. Chairman and members of the Committee on Health Care Financing.  My name is Dr. Paul Biddinger.  I am Chairman of the Massachusetts Medical Society’s Committee on Preparedness, Director of Pre-Hospital Care and Disaster Medicine at Massachusetts General Hospital, and Associate Director of the Harvard School of Public Health’s Center for Public Health Preparedness. Today I have the honor of speaking on behalf of both the Medical Society and the Massachusetts College of Emergency Physicians in support of H108 and S.18, relative to pandemic and disaster preparation and response in our Commonwealth.  We appreciate the committee’s recognition of the need for disaster preparedness, and of the need for an all-hazards approach to preparedness and response. I would also like to offer my sincere and personal appreciation to Senator Moore for his sponsorship of this bill and for his tireless efforts to protect the health of the citizens of Massachusetts in a disaster.

Every day, as a practicing emergency physician, I see examples of how our system is stretched beyond its limits.  Between 1999 and 2006, Massachusetts emergency departments (ED’s) experienced a 9% increase in volume, with total volume reaching 2,917,339 in 2006.  Patients coming to the ED with acute illness and pain commonly wait for hours, crowded in the waiting rooms because there are insufficient beds and hallway spaces to host them.  While a few of our patients continue to lack health insurance, many more cannot access primary care when they are ill, either because of they cannot find a practitioner who will accept new patients or because their provider has no room that day in an already overcrowded schedule.  Even after being seen in the ED and found to need admission to the hospital, patients often wait for many more hours, and occasionally even days, in the ED because the hospital lacks the inpatient capacity to receive them.  These examples are not the exception; they are the norm in our emergency care system.  We are beyond our capacity.

Yet, in a disaster, whether the disaster is caused by a commuter train crash, by a weather event such as a hurricane (and yes, Massachusetts is vulnerable to hurricanes), by a terrorist event such as an improvised bomb, or by an mass outbreak of disease such as SARS, pandemic influenza, or some as-yet unknown and unnamed threat, we continue to expect that the Commonwealth’s overtaxed emergency health care system will be able to surge and meet the needs of its citizens.

This is not rational.  Despite the substantial, remarkable, and wonderful work of a large number of emergency planners, emergency responders, and clinicians throughout Massachusetts in recent years, the reality is that the health care system is simply not big enough to receive a large influx of disaster victims in its current state. 

Faced with a massive surge in patients, we will need substantial and immediate increases in our acute care medical space, supplies and staff.  Yet, owners of structures that may be used as surge infirmaries are reluctant to commit to the use of their facilities for fear of legal burdens they may incur.  Basic supplies that may save lives are of no use if they are not distributed among the healthcare providers when they are needed.  Good hearted men and women in health professions who are otherwise willing to volunteer their time and talents to offer medical care to the sick and injured without compensation are currently reluctant to do so because of the risks to themselves and their families of unmitigated liability.

The Medical Society and the Massachusetts College of Emergency Physicians strongly support H.108 and S.18 as an appropriate vehicle to enhance our state’s preparedness and address some of these challenges.  These bills provide essential strong liability protections for health care providers who volunteer or are called upon to assist in the event of a pandemic or other disaster situation.   I cannot overemphasize how critically important such liability protections will be in a state of emergency.  In a statewide health crisis, such as a pandemic, we will need to supplement our ranks of internists, pulmonologists, emergency physicians and other specialists with physicians from other specialties. Asking them to work outside their usual work setting exposes them to liability. Further, in a pandemic or similar crisis, physicians will act under severely austere conditions, sometimes termed “altered standards of care,” where they are faced with inadequate staff, supplies, and space compared with normal situations. In disaster circumstances, concerns about liability should be a providers’ last concern as they put their lives on the line to provide the best care possible with whatever resources they have.  Yet concern about liability is one of the biggest obstacles the Medical Society has faced in trying to recruit providers to enroll in its surge staffing program, the Massachusetts System for Advance Registration of Volunteer Health Professionals (MSAR).  This program will help ensure that Massachusetts has a prescreened and precredentialled pool of caregivers should a disaster occur.

Specifically, H.108 and S.18 would:

• Protect health care providers from liability in a suit for damages or administrative sanctions as a result of good faith acts or omissions while engaged in the performance of duties in rendering emergency care, treatment, advice, or assistance during a declared public health emergency or state of emergency, or acting as a result of a pandemic or a disaster.
• Allow health care providers who are killed, disabled or injured during a pandemic to be considered an employee of the Commonwealth for purposes of compensation and benefits (in the absence of other benefits).
• Allow for an immediate waiver of all health insurer administrative requirements, including but not limited to, utilization review, prior authorization, advance notification upon admission or delivery of services, limitation on provider networks for treating or transfer of patients, or for health care services provided during a declared public health emergency or state of emergency.

These protections for health care provider volunteers are essential if we are going to reassure our healthcare workers in the Commonwealth that they will not be held liable when they are doing their best in extreme adversity. 

In these very difficult financial times, I would like to note that these bills do not include an appropriation.  Instead, they would require that DPH convene a panel of public health preparedness experts to assess the current state of funding resources available for preparedness activities in the Commonwealth and to examine and make recommendations as to what funding will most appropriately support and sustain state and local preparedness activities.   Adequate funding is vital to ensure adequate access to medication, ventilators, beds and other essential medical equipment and enhance our bed surge capacity in hospitals and alternate care sites.   Funds are also needed for regional planning, sentinel alert and coordinated response efforts.  The science, and our understanding, of preparedness are processes, not end points and are very fluid.  We agree with other experts that DPH is best prepared to prioritize resources and modify preparedness efforts as our knowledge of preparedness evolves. 

In conclusion, on behalf of the Medical Society and MACEP, we again thank you for your timely efforts to advance this critical preparedness bill and we pledge our support and resources to assist in its passage.