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Monday, January 27th 2003

The Honorable Tommy G. Thompson
Secretary of Health and Human Services
200 Independence Avenue, SW
Washington, DC 20201

Dear Secretary Thompson:

On behalf of our nearly 5,000 hospital, health system, network and other health care provider members, I want to thank you for working with the American Hospital Association (AHA) on the liability protections in Section 304 of the Homeland Security Act. While the Declaration you issued on January 24 addresses many of the concerns we raised about the scope of the liability protection afforded to hospitals and health care personnel by Section 304, there are several issues that have not adequately been resolved in the Declaration.

Policy Determinations nine and 10 of the Declaration seem to indicate that health care personnel will be protected from liability under the Declaration only "while acting within the scope of their employment." The notion of limiting protection to scope of employment finds no support in the statute and, in fact, undermines an important feature of the legislation: the presumption that accidental transmission of vaccinia even outside the health care facility will be covered by the protections in Section 304. "Scope of employment" is a well-established principle in common law tort and Federal Tort Claims Act jurisprudence, but it is not applicable in this type of situation where the employee necessarily takes the source of potential liability along wherever he or she may go. While we believe the operative language of the Declaration makes this coverage clear, the "scope of employment" language in the "Policy Determinations" will, at a minimum, cause confusion and may at worst provide an opportunity for plaintiff lawyers to circumvent the protections intended by the Act.

Therefore, Policy Determinations nine and 10 of the Declaration should be amended by deleting the reference to "within the scope of their employment." The last sentence of policy determination nine would read: "To achieve a successful vaccination program and because it is impractical to have countermeasures administered at every health care entity involved in the program, it is critical that health care entities participate in this manner and that their personnel be protected." Policy determination 10 would read: "It is important to the successful implementation of the vaccination program that those workers employed by, or who participate in a response team of, health care entities under whose auspices a countermeasure is administered be protected by Section 304."

Second, the Declaration provides no protection for hospitals or other health care entities that do not participate in the voluntary program. However, nonparticipating health care entities by necessity will have physicians and other health care practitioners who may have received a covered countermeasure practicing within their facilities. That is the nature of medical practice today; physicians and other health care personnel may provide services in several hospitals. Military reservists who have received a covered countermeasure may also be employed by a nonparticipating hospital. It is unfair and unwise not to provide these facilities the protection of the Act, and may force them to deny privileges to personnel who have received the vaccinia, at least during any potentially infectious period.

The definition of "Health care entity under whose auspices such countermeasure was administered" should be amended (see Declaration: VI. DEFINITIONS, 2).  After 2) (b) insert a new (c): "employs or utilizes a health care worker who has been administered a covered countermeasure under a state's plan or the federal plan;" the current subsection (c) would become (d).

We urge you to amend or clarify the Declaration to resolve these concerns.  We appreciate your willingness to work with us to ensure that hospitals and health care professionals are provided with all of the protections afforded to them under the Act.  If you or members of your staff have questions about this matter, please call Curtis Rooney, Senior Associate Director and Counsel at (202) 626-2678.


Dick Davidson


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